TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

This title was enacted by Pub. L. 89–554, §1, Sept. 6, 1966, 80 Stat. 378; Pub. L. 117–286, §3, Dec. 27, 2022, 136 Stat. 4197

        

Editorial Notes

Amendments

2022—Pub. L. 117–286, §4(d)(1), Dec. 27, 2022, 136 Stat. 4359, added item for part IV.

1979—Pub. L. 96–54, §2(a)(1), Aug. 14, 1979, 93 Stat. 381, substituted "Civil Service Functions and Responsibilities" for "The United States Civil Service Commission" in item for part II.

Table Showing Disposition of All Sections of Former Title 5

Title 5 Former Sections	Title 5 New Sections
1, 2	101
3	Rep.
4	3345
5	3346
6	3347
7	3348
8	3349
9	5535
10	2901
11, 12	2902
13–14a, 15	Rep.
16	3331
16a	2903, 2904
17, 17a	Rep.
17b, 17c	2905
18	2903
19	Rep.
20	2904
21	2906
21a	3332
21b	5507
22	301
22–1 (less 3d–5th provisos)	7532
22–1 (3d proviso)	3571, 5594
22–1 (4th and 5th provisos)	7312
22–2	7533
22–3	7531
22a	302
23–26c	Rep.
27	6106
28	6105
29, 29a, 30 to 30b–1, 30c to 30e–1, 30f–30m	Rep.
30n	6322
30n–1	T. 28 §1823
30o	5537
30p	5515
30q	6321
30r(a)	6323
30r(b)	3551
30r(c)	502, 5534
30r(d)	2105
31–31b, 32	Rep.
33	7154
34–35a, 36–37a	Rep.
38	3341
39, 40	3342
41	T. 14 §632
42, 42a	Rep.
43	3101
43a	3102
44	T. 31 §492–1 (See Rev. T. 31 Table)
45	Rep.
46	3103
46a	5511
46b	5513
46c	T. 31 §699a (See Rev. T. 31 Table)
46d, 46e	5514
47	3103; T. 18 §1916
47a	8301; T. 10 §1221
48	T. 28 §514
49	3106
50	5501; T. 18 §1916
51	5536
52	5502
53	3108
54	3107
55	Rep.
55a	3109
56	5503
57–59c	Rep.
60	T. 2 §162
61	D.C. Code, §31–1009
61a	5552
61a–1(a), (f)	5534a
61a–1(b)–(e)	Rep.
61b (1st, 2d sentences)	5551
61b (3d–5th sentences)	6306
61b (6th sentence)	5551
61c–61e	Rep.
61f	5582
61g	5581
61h	5583
61i	5581
61j	5582
61k	5581
62–64a	Rep.
65	T. 2 §162
66	T. 18 §1914
67	T. 7 §2220
68	T. 8 §1353c
69	5535, 5536
70	5536
70a, 70b	5945
70c	5942
71	5536
72	5535
73, 73a	Rep.
73b	5731
73b–1(a), (b)	5724
73b–1(c)	5730
73b–1(d)	5725
73b–1(e)	5726
73b–1(f)	5727
73b–2	5703
73b–3(a) (less 3d–6th provisos)	5722
73b–3(a) (3d, 4th provisos)	5728
73b–3(a) (5th, 6th provisos)	5729
73b–3 (less (a))	5723
73b–4	T. 41 §5a
73b–4a, 73b–4b	5724a
73b–4c	5726
73b–4d	5724
73b–4e	5724a
73b–4f	5724
73b–5	5732
73c	5727
73c–1, 73c–2, 73d	Rep.
73e	5731
73f, 74–75a	Rep.
75a–1	Elim.
75b–75d, 76	Rep.
76a	T. 20 §244a
77, 77a	Rep.
78, 78a, 78a–1, 79, 80	T. 31 §§638a–638e (See Rev. T. 31 Table)
81, 81a	Rep.
82	5512
83	5946
84	5505
84a	T. 4 §111
84b, 84c	5517
84d	5518
85	5502
86	Rep.
86a	6104
87–87c	6103
88	T. 31 §554 (See Rev. T. 31 Table)
89	Rep.
90	T. 28 §414
91	T. 28 §520
92	Rep.
92a	2903
93	303
93a	Rep.
94	304
95, 95a	503
96	304
97, 98	Rep.
99, 100	Rep. See T. 18 §207.
101	501
102	Rep.
103	5741
103a, 103b	5742
104	T. 31 §492–2 (See Rev. T. 31 Table)
104a, 105	Rep.
105a	2954
106	2952
107	Rep.
108	T. 44 §121 (See Rev. T. 44 Table)
109	Rep.
110	T. 40 §484–1 (See Rev. T. 40 Table)
111, 112	Rep.
113	7351
114	7341
114a	7342 note
115, 115a	7341
116	Elim.
116a, 117	Rep.
118	T. 31 §686–2 (See Rev. T. 31 Table)
118a	5912
118b	T. 31 §530a (See Rev. T. 31 Table)
118c	5943
118c–1 to 118e	Rep.
118f	5944
118g	7903
118h	5941
118i(a) (1st 4 sentences)	7324
118i(a) (5th sentence)	7327
118i(b) (less last proviso, and less last sentence)	7325
118i(b) (last proviso, last sentence)	Elim.
118i(c)	1308
118j, 118j–1	Rep.
118k(a)	1501, 1502
118k(b)	1504, 1505, 1506
118k(c)	1508
118k(d)	1302, 1507
118k(e), (f)	1501
118k–1	1501, 7324
118k–2	1501
118k–3	7324
118l	1501, 7324
118m	7327
118n	1503, 7326
118o	7323
118p	7311
118q	3333
118r	T. 18 §1918
119–123	Elim.
124–131a, 132–133r	Rep.
133s, 133t	Elim.
133u, 133v	Rep.
133w	Elim.
133x to 133y–16	Rep.
133z	901
133z–1	903
133z–2	904
133z–3	905
133z–4	906
133z–5, 133z–6	902
133z–7, 133z–8	907
133z–9	906
133z–10	908
133z–11 to 133z–15	909–913
134	T. 40 §721 (See Rev. T. 40 Table)
134a	T. 40 §722 (See Rev. T. 40 Table)
134b	T. 40 §723 (See Rev. T. 40 Table)
134b–1	T. 40 §724 (See Rev. T. 40 Table)
134b–2	T. 40 §725 (See Rev. T. 40 Table)
134c	T. 40 §726 (See Rev. T. 40 Table)
134d	T. 40 §727 (See Rev. T. 40 Table)
134e	T. 40 §728 (See Rev. T. 40 Table)
134f	T. 40 §729 (See Rev. T. 40 Table)
134g, 134h	T. 40 §721 note Rep.
135–138j	Rep.
139–139f	T. 44 §§421–427 (See Rev. T. 44 Table)
140, 140a	T. 31 §§483a, 483b (See Rev. T. 31 Table)
141–149	Rep.
150	7901
150e–150i	T. 10 §2575
150j	T. 10 §§4712, 9712
150j–1 to 150j–3	T. 10 §§4713, 9713
150k	2105
150k–1(a)	8171
150k–1(b)	8172
150k–1(c)	8173
150m–150o	T. 10 §2541
150p	T. 10 §2572
150q–150t	T. 10 §2601
151	T. 22 §2651
151a	T. 22 §2652
151b	T. 22 §2653
151c	T. 22 §2658
151d to 152–1	Rep.
152a	T. 22 §2654
152b	T. 22 §2655
152c, 152d, 153	Rep.
153a	T. 22 §2663
154	T. 22 §2664
154a	Rep.
155	T. 22 §2665
156	T. 22 §2656
157	Rep.
158	T. 22 §2657
159, 160	Rep.
161	T. 22 §2659
162–164	Rep.
165	T. 22 §2660
166–168d	Rep.
169	T. 22 §2661
170	T. 22 §2668
170a	T. 22 §2681
170b	T. 22 §2682
170c	T. 22 §2683
170d	Rep.
170e	T. 22 §2666
170e–1	T. 22 §2667
170f	T. 22 §2662
170g	T. 22 §2669
170h	T. 22 §2670
170i	T. 22 §2671
170j	T. 22 §2672
170k	T. 22 §2673
170l	T. 22 §2674
170m	T. 22 §2675
170n	T. 22 §2676
170o	T. 22 §2677
170p	T. 22 §2678
170q	T. 22 §2679
170r, 170s	Rep.
170t	T. 22 §2680
170u	T. 22 §2684
171	T. 10 §§131, 133
171–1	T. 50 §408
171–2	T. 50 §409
171a(a), (b)	T. 10 §133
171a(c)	T. 10 §§125, 136, 141, 3010, 3012, 5011, 5031, 8010, 8012
171a(d)	T. 10 §133
171a(e)	T. 10 §132
171a(f)	T. 10 §133
171a(g)–(i)	Elim.
171a(j)	T. 10 §124
171a–1	T. 10 §133
171b	Rep.
171c	T. 10 §§134–136, 718, 2358
171c–1, 171c–2, 171d to 171d–2	Rep.
171e	T. 10 §171
171f	T. 10 §§141, 142
171g	T. 10 §143
171h, 171i	Rep.
171j	T. 10 §173
171j–1 to 171l	Rep.
171m	T. 50 §411
171m–1	T. 10 §2211
171n	T. 50 §410
171o	Rep.
171p, 171q	T. 10 §1581
171r	T. 10 §1582
171s	T. 10 §§3230, 5416, 8230
171s–1	T. 31 §700 (See Rev. T. 31 Table)
171t	T. 10 §2571
171u	Rep.
171v	T. 10 §1583
171w	T. 10 §2385
171x, 171y	Rep.
171y–1	T. 10 §§3205, 5417, 8205
171z	T. 10 §2661
171z–1	T. 10 §2681
171z–2	T. 31 §700a (See Rev. T. 31 Table)
171z–3 to 171z–5	T. 10 §§2673–2675
172	T. 10 §136
172a	T. 10 §§3014, 5061, 8014
172b, 172c	T. 10 §§2203, 2204
172d	T. 10 §2208
172d–1	T. 10 §2210
172e	T. 10 §2209
172f	T. 10 §126
172g, 172h	T. 10 §§2205, 2206
172i	T. 10 §2701
172j	T. 50 §412
173	T. 10 §2451
173a	Rep.
173b	T. 10 §2451
173c–173e	T. 10 §§2452–2454
173f–173h	T. 10 §2455
173i	T. 10 §2456
174	T. 31 §650a (See Rev. T. 31 Table)
174a	T. 37 §412
174b	T. 10 §2666
174c	Elim.
174d	T. 10 §2207
174e	T. 10 §2387
174f	Elim.
174g	T. 31 §638f (See Rev. T. 31 Table)
174h	Elim.
174i	T. 31 §700b (See Rev. T. 31 Table)
181	T. 10 §3012
181–1(a)	T. 10 §3012
181–1(b)	Elim.
181–1(c)	T. 10 §101(5); T. 50 §409(a)
181–1(d)	T. 10 §3011
181–1(e)	T. 10 §3062
181–2	T. 10 §3012
181–3	T. 10 §3001
181–4	T. 10 §§3012, 4532
181–5	T. 10 §§3013, 3017
181a, 182, 182a, 183, 184	Rep.
185–187	T. 10 §3016
187a, 188, 189	Rep.
189a	T. 10 §§4025, 9025
189b	Rep.
189c	T. 10 §2632
189d	Rep.
190	T. 10 §3012
191	T. 10 §4831
191a	T. 10 §1552
192, 192a, 193–194a, 195–197	Rep.
198	T. 10 §4714
199	T. 10 §§3693, 8693
200	T. 10 §1551
201	Rep.
202	T. 10 §§4565, 9565
203–207i, 208–213	Rep.
214	Elim.
215–216a, 217	Rep.
218	T. 10 §2381
219–219b, 220	Rep.
221	T. 10 §§4540, 9540
222	T. 31 §649a (See Rev. T. 31 Table)
223	Rep.
224	T. 22 §276aa
225	T. 22 §276bb
226	T. 22 §276cc
227	T. 22 §276dd
228	T. 22 §276ee
229–232	Rep.
233–233c	(See former 150q–150t)
234–234f	Rep.
235	T. 10 §4531
235a	T. 10 §4503
235b	T. 10 §174
235c	T. 10 §1584
235d	T. 10 §2352
235e	T. 10 §§2353, 2357
235f, 235g	T. 10 §§2354, 2355
235h	T. 10 §§174, 2356
241–245	T. 31 §§1001–1005 (See Rev. T. 31 Table)
245a	Rep. and Elim.
246	T. 31 §1006 (See Rev. T. 31 Table)
246a	Rep.
247–248a	T. 31 §§1007–1009 (See Rev. T. 31 Table)
248b	Rep.
248c–248e	T. 31 §§1010, 1011, 1013 (See Rev. T. 31 Table)
249, 249a	Rep.
249b, 250	T. 31 §§1014, 1015 (See Rev. T. 31 Table)
251	Rep.
252–258a, 259–265	T. 31 §§1016–1030 (See Rev. T. 31 Table)
266–269	Rep.
270, 271	Elim.
272–274	Rep.
275	T. 10 §1552
276	Rep.
277	T. 31 §1031 (See Rev. T. 31 Table)
281	T. 19 §2071
281a	T. 19 §2072
281b	T. 19 §2073
281c	T. 21 §163
281d, 281e	Rep.
281f	T. 19 §2072
281g	T. 19 §2074
282	T. 21 §161
282a	T. 21 §162
282b	T. 21 §164
282c	T. 21 §165
291	T. 28 §§501, 503
292	T. 28 §502
293	T. 28 §505
293a	Rep.
294	T. 28 §504
295, 295–1	T. 28 §506
295a	Rep.
295b	Rep. and Elim.
296	Rep.
297	Rep. and Elim.
297a	Rep.
298	T. 28 §543
298a	5108
299	T. 28 §533
300	T. 28 §§533, 534
300a	T. 18 §§3052, 3107
300b	T. 31 §224b (See Rev. T. 31 Table)
300c, 300c–1	Rep.
300d	T. 28 §536
300e–302	Rep.
303, 304	T. 28 §§511, 512
305	T. 28 §521; T. 44 §296a (See Rev. T. 44 Table)
306	T. 28 §516
306a	Rep.
307	T. 28 §513
308	Rep.
309	T. 28 §518
310	T. 28 §515
311	Rep.
311a	T. 28 §535
312	T. 28 §§543, 547, 548
313	T. 28 §514
314	3106
315	T. 28 §515
316	T. 28 §517
317	T. 28 §§547, 569
318	T. 28 §§549, 569
319	T. 28 §523
320, 321	Rep.
322	T. 31 §1010 (See Rev. T. 31 Table)
323, 324	T. 28 §547
325	T. 31 §1012 (See Rev. T. 31 Table)
326	T. 31 §1011 (See Rev. T. 31 Table)
327	T. 28 §547
328	T. 31 §1013 (See Rev. T. 31 Table)
329	T. 28 §§547, 569
330, 331	T. 28 §547
332	Rep. See Fed. Rules Civ. Proc. rule 2.
333	T. 28 §522
334–339	Rep.
340	T. 28 §534
341	T. 28 §524
341a	T. 28 §568
341b	T. 28 §526
341c	T. 28 §§536, 537
341d	T. 8 §1555
341e	T. 28 §525
341f	T. 18 §4010
341g	T. 18 §4011
341h	T. 42 §250a
342	T. 8 §1551
342a	Elim.
342b	T. 8 §1552
342b–1	T. 8 §1553
342c	T. 8 §1353a
342d	T. 8 §1353b
342e	T. 8 §1353d
342f	Rep.
342g	T. 8 §1554
342h–342k	Elim.
342l	T. 8 §1557
361	Rep. See T. 39 §§201, 203.
362	Rep. See T. 39 §207.
363, 363a, 364	Rep. See T. 39 §204.
364–1(a)	Rep. See T. 39 §§204, 401.
364–1(b), 364a, 364b	Rep.
365	Rep. See T. 39 §1011.
366	Rep. See T. 39 §401.
367	Rep. See T. 39 §2201.
368	Rep.
369	Rep. See T. 39 §§202, 401, 403, 404.
370	Rep. See T. 39 §§1001, 1006.
371	Rep.
372, 373	Rep. See T. 39 §407.
374	Rep. See T. 39 §2202.
375	Rep. See T. 39 §407.
376	Rep.
377	Rep. See T. 39 §401.
378–382	Rep.
383, 384	Rep. See T. 39 §2601.
385–388	Rep.
389	Rep. See T. 39 §5213.
390, 391	Rep.
392	Rep. See T. 39 §2603.
393	Rep. See T. 39 §401.
411	T. 10 §5031
411a(a)	T. 10 §101(5); T. 50 §409(b)
411a(b)	T. 10 §5012
411a(c)	T. 10 §§5013, 5402
411b, 412	T. 10 §5031
412a	T. 10 §§6952, 7202–7211, 7214, 7215, 7218, 7301, 7472, 7478, 7571, 7572, 7576, 7578, 7579
412b	T. 10 §2381
413	T. 10 §5031
414, 415, 415a	Rep.
415b	T. 10 §7473
415c	T. 10 §7472
415d	T. 10 §2632
415e, 416, 417	Rep.
418	T. 10 §7216
419	T. 10 §7221
419a	T. 10 §7220
419b	T. 10 §7222
419c	T. 10 §7202
420, 420a, 421	T. 10 §5034
421a	Rep.
421a–1	T. 10 §§5034, 5036
421b	T. 10 §§5033, 5036
421c	T. 10 §7211
421d	T. 10 §7204
421e	T. 10 §§7203, 7205
421f	T. 10 §§7207–7209
421g	T. 10 §§6081, 7204, 7205, 7211, 7214, 7218, 7571, 7572, 7576, 7579
422, 422a, 423	Rep.
423a	T. 10 §§5081, 5082, 5111
423b	T. 10 §5081
423c–423f	T. 10 §§5085–5088
423g, 423h	T. 10 §§5111, 5112
423i	T. 10 §5082
423j	T. 10 §5036
423k	T. 10 §§5085, 5086, 5088, 5111
424	T. 10 §5081
425	Rep.
425a	T. 10 §§5083, 5133, 5148, 5201
426, 426a	Rep.
427	T. 10 §5081
427a	T. 10 §5084
428	T. 10 §5148
429	T. 10 §§5131, 5132
430	T. 10 §5132
430a	T. 10 §7303
430b	T. 10 §5132
431	T. 10 §5132
432	T. 10 §§5137, 5141, 5146, 5147
432a	T. 10 §5135
433	T. 10 §5147
434	T. 10 §§5141, 5144
435	T. 10 §5145
436	Rep.
437	T. 10 §5146
438	T. 10 §5137
439	T. 10 §§5133, 5136
440	T. 10 §§5137, 5146
441	T. 10 §§5133, 5148
441a	T. 10 §5133
442, 443	Rep.
444	T. 10 §5149
445	T. 10 §§5135, 5147
446	T. 10 §§5135, 5141
447	T. 10 §§5135, 5144
448	T. 10 §5145
448a	T. 10 §5135
448b	T. 10 §5145
449	T. 10 §§5135, 5146
450	Rep.
451	T. 10 §5137
452	T. 10 §§5134–5136
453	T. 10 §5149
454	Rep.
455	T. 10 §5132
456	Rep.
456a	T. 10 §1552
456b, 456c	T. 10 §5138
456d	T. 10 §6029
457	T. 10 §7391
457a, 457b	Rep.
458	T. 10 §§7392, 7394
458a	T. 10 §7393
459	T. 10 §7394
460, 460a	Rep.
461	T. 10 §7395
462	Rep.
463	T. 10 §7395
464	T. 10 §7396
465	Rep.
466	T. 10 §7217
467, 468, 468a, 469, 470	Rep.
471	T. 10 §§5063, 5064
475	T. 10 §§5150, 5151
475a, 475b	T. 10 §5150
475c	T. 10 §5153
475d	T. 10 §§5151, 5152
475e	T. 10 §7522
475f	Rep.
475g	T. 10 §174
475h	T. 10 §1584
475i	T. 10 §2352
475j	T. 10 §§2353, 2357
475k, 475l	T. 10 §§2354, 2355
475m	T. 10 §§174, 2356
476, 476a, 476b	T. 10 §§1581, 1582
477–477c	(See former 150q–150t)
481	T. 43 §1451
481a	T. 43 §1452
482	T. 43 §1453
482a	Rep.
483	T. 43 §1454
483–1	Rep. and Elim.
483–2	Rep.
483a	T. 43 §1455
484	T. 43 §1456
485	T. 43 §1457
486	T. 43 §1458
487	T. 43 §1459
488	T. 43 §1460
489	T. 43 §1461
490	Rep. See T. 28 §1733.
491	T. 43 §1462
492	T. 43 §1463
493	T. 43 §1464
494	Rep.
495	T. 43 §1465
496, 496a, 497	Rep.
498	T. 43 §1466
499, 500	Rep.
501	Elim.
502	T. 43 §1467
503	T. 43 §1468
511	T. 7 §2201
512	T. 7 §2202
513	T. 7 §2203
514	T. 7 §2204
514a	T. 7 §2210
514b	T. 7 §2211
514c	Rep.
514d (1st, 3d pars.)	Rep.
514d (2d par.)	3101
515	T. 7 §2205
516	T. 7 §2206
516a	T. 7 §450c
516b (less 3d sentence)	T. 7 §450d
516b (3d sentence)	5109
516c	T. 7 §450e
516d	T. 7 §450f
516e	T. 7 §450g
517	T. 7 §2212
517a	Rep.
517b	T. 7 §2213
517c	Rep.
518	Elim.
518a	T. 7 §2214
519	T. 7 §2215
520	T. 7 §2216
520a	T. 7 §2232
521	T. 7 §2217
522	T. 7 §2218
523–527	Rep.
528	T. 7 §2219
529	Rep.
530	T. 7 §2221
531	T. 7 §2222
532	T. 7 §2223
533	T. 7 §2224
534–537	Rep.
538	T. 7 §2227
539–541b	Rep.
541c	T. 7 §2233
541d	T. 7 §2228
541e	T. 7 §2229
542	T. 7 §2234
542–1	T. 7 §2235
542–2	T. 7 §2236
542a	T. 7 §2237
542b	T. 7 §2238
542c	T. 7 §2239
543	T. 7 §2240
543a	T. 7 §2230
543b	T. 7 §2231
544–548	Rep.
549	T. 7 §2241
550	Rep.
551	T. 7 §2242
552	T. 7 §2243
552a	T. 7 §2244
553	T. 7 §2245
554	T. 7 §2246
555	T. 7 §2247
556, 556a	Rep.
556b	T. 7 §2248
557	T. 7 §2207
557a	T. 7 §2208
558	T. 7 §2209
558a, 559–562	Rep.
563	T. 7 §450b
564	T. 7 §2220
564a	T. 7 §2249
565	Rep.
565a	T. 7 §2250
565b	T. 7 §2250a
566	T. 7 §2251
567	T. 7 §2253
568	Rep.
568a	T. 7 §2254
568b	Rep.
569	T. 7 §2252
570	T. 7 §2255
571	T. 7 §2256
572	T. 7 §2257
573	T. 7 §2258
574	T. 7 §2225
574a	T. 7 §2226
575	T. 7 §2259
576	T. 7 §2260
577	T. 7 §2261
578	T. 7 §2262
579	T. 7 §2263
591	T. 15 §1501
591a	T. 15 §1502
591b	T. 15 §1503
592	T. 15 §1504
592a	T. 15 §1505
592a–1, 592a–2	Rep.
592a–3	T. 15 §1506
592a–4	T. 15 §1507
592b	T. 15 §1508
592c, 592d, 593	Rep.
593a	T. 15 §1509
594	T. 15 §1510
595	Rep.
596	T. 15 §1512
596a	T. 15 §1514
597	T. 15 §1511
597a, 597a–1, 597b–597d	Rep.
598	T. 15 §1515
599	T. 15 §1513
600–600b	Rep.
601	T. 15 §1516
601a–601d	T. 15 §§189, 189a, 192, 192a
602	T. 15 §1517
603	T. 15 §1518
604	T. 15 §1519
605	Rep.
606	T. 15 §1520
606a	Rep.
607	T. 15 §1521
608	Rep.
608a	T. 15 §1522
608b	T. 15 §1523
608c	T. 15 §1524
611	T. 29 §551
611a	T. 29 §552
611b	T. 29 §553
611c	Rep. and Elim.
612, 613	Rep.
613a	T. 29 §554
613b	T. 29 §555
614	Rep.
615	T. 29 §556
616	T. 29 §557
617	T. 29 §558
618	T. 29 §559
619	Rep.
620	T. 29 §560
621	T. 29 §561
622	T. 29 §562
622a	T. 29 §563
623	T. 42 §3501
623a	T. 42 §3508
623b	T. 42 §3503
623c	T. 42 §3504
623d	T. 42 §3505
623e	T. 42 §3507
623f	T. 42 §3506
623g	T. 42 §3502
623h	T. 42 §3501a
623i	Elim.
624	T. 42 §3531
624a	T. 42 §3532
624b	T. 42 §3533
624c	T. 42 §3534
624d	T. 42 §3535
624e	T. 42 §3536
624f	T. 42 §3537
626(a)	T. 10 §8012
626(b)	Rep.
626(c)	T. 10 §101(5); T. 50 §409(c)
626(d)	T. 10 §8013
626(e)	T. 10 §8012
626(f)	T. 10 §8033
626(g)	T. 10 §8011
626–1	T. 10 §8013, 8017
626–2	T. 10 §§8012, 9532
626a	T. 10 §8012
626b	T. 10 §8013
626c(a), (f)	T. 10 §8062
626c(b)	T. 10 §743
626c(c)–(e), 626c–1 to 626c–3, 626d, 626e	Rep.
626f	(See former 150p)
626g–626j	(See former 150q–150t)
626k	Rep.
626l, 626m	T. 10 §9441
626n	T. 10 §2632
626o	Rep.
626p	T. 10 §9774
626q, 626r	T. 10 §9301
626s to 626s–2	T. 10 §2481
626s–3	T. 10 §2667
626s–4, 626s–5	Rep.
626s–6	T. 10 §2667
626t, 626u	T. 10 §1581
626v–626y, 627	Rep.
627a	T. 10 §§8208, 8215
627b	T. 10 §§8071, 8208, 8297, 8299, 8305, 8504, 8685, 8888, 8915, 8916, 8927, 8962, 8991
627c	Rep.
627d	T. 10 §8256
627e	T. 10 §8685
627f	T. 10 §§8549, 8580, 8818
627g–627l	Rep.
628	T. 10 §9531
628a	T. 10 §9503
628b	T. 10 §174
628c	T. 10 §1584
628d	T. 10 §2352
628e	T. 10 §§2353, 2357
628f, 628g	T. 10 §§2354, 2355
628h	T. 10 §§174, 2356
630	T. 40 §751 (See Rev. T. 40 Table)
630a	T. 40 §752 (See Rev. T. 40 Table)
630b	T. 40 §753 (See Rev. T. 40 Table)
630c	Rep.
630d	T. 40 §754 (See Rev. T. 40 Table)
630e	T. 40 §755 Rep.
630f	Rep.
630g	T. 40 §756 (See Rev. T. 40 Table)
630g–1	T. 40 §757 (See Rev. T. 40 Table)
630g–2	T. 40 §759 Rep.
630h	T. 40 §758 (See Rev. T. 40 Table)
630i	Elim.
630j	Rep.
631	3301, 7301
631a, 631b(a)	Elim.
631b(b), (c)	3304
632 (1st par.)	1101
632 (2d–4th pars.)	1102
632 (5th par.)	1103
633(1)	1301, 3302
633(2)1	3304
633(2)2	3318
633(2)3	3306
633(2)4	3321
633(2)5	7321
633(2)6	7152, 7322
633(2)7	1302, 3304
633(2)8	2951, 3302
633(2)9	7153
633(3)	1302, 1307
633(4)	1303
633(5)	1308
633a–633e	Rep.
634	1306
635 (1st 5 sentences)	1104, 1105
635 (6th sentence)	1105, 3305
635 (7th sentence)	3304
636	Rep.
637	T. 18 §1917
638	2102, 3304, 3361
638a	Rep.
638b	3307, 3322
639	Rep.
640	7352
641	3319
642	3303
642a	2953
643–645b	Rep.
645c–645e	Elim.
646–651b	Rep.
652(a)	7501
652(b)	5591–5593
652(c)	7101
652(d)	7102
652a–652c	5596
653, 654	Rep.
655–657	1304
658	Elim.
659	3327
661–663b, 664–669a, 670–672c, 673–673b	Rep.
673c (1st par., less provisos)	Rep.
673c (1st proviso)	6102
673c (2d, 3d provisos)	5544
673c (2d par.), 674–678b	Rep.
679	Elim.
680–684, 691, 691a, 692–692d, 693 to 693–2, 693a–693d, 694, 649a, 695, 695a, 696, 696a, 697, 697a, 698–698b, 699, 699a, 700, 700a, 701, 701a, 702, 702a, 703, 703a, 704, 704a, 705, 705a, 706, 706a, 707, 707a, 708, 708a, 709–615	Rep.
715a	3323
715b–715d, 716–718a, 719, 719–1, 719a, 719b, 720–729a, 730–736c, 737–739b, 740, 740a	Rep.
740b–740i	(See former 2281–2288)
745–745r	Rep.
751	8102
752	8117
753	8105
754	8106
755(a), (b)	8107
755(c)	8108
755(d)	8109
756(a)	8110
756(b)	8111
756(c)	8112
756(d)	8113
756a	Rep.
757	8116
758	8118
759(a)	8103
759(b)	8104
759(c)	3315a
760(A)	8133
760(B)	8101, 8133
760(C)–(G)	8133
760(H)	8101
760(I)–(K)	8133
760(L)	T. 18 §1921
760(M)	8101
761	8134
762	8114
763	8115
764	8135
765–767	8119
768, 769	8121
770	8122
771, 772, 773(a)	8123
773(b)	8127; T. 18 §292
773(c)	8125
774(a)	8120
774(b)	T. 18 §1922
775	8130
776	8131
777	8132
778	8145
779	8120
780	8126
781	8145
782	Rep.
783	8145, 8149
784(a)	8148
784(b), (c)	7902
785	8147
786	8124
787	8128
788	8129
789	T. 18 §1920
790	8101
791	8131
791–1 to 791–3, 791–4(a)	Rep.
791–4(b)	8150
791a	Rep.
791b	Elim.
792	Rep.
793 (1st par.)	8146
793 (2d par., 1st sentence)	8146
793 (2d par., 2d sentence)	8138
793 (2d par., 3d, 4th sentences)	8146
793 (3d par.)	8146
793 (4th par., 1st sentence)	8138
793 (4th par., 2d sentence)	8136
793 (5th par., 1st through 6th sentences)	8137
793 (5th par., 7th sentence)	8128
793 (5th par., 8th sentence)	8137
793a(a), (b)	8146a
793a(c)	8101
794	8101, 8139
795–797a, 798–801	Rep.
802	8140
803(a)–(c)	8141
803(d)	Rep.
803a	8150
821–823	Rep.
823a	(See former 73c)
824–834	Rep.
835	5701
836	5702
837	5704
838	5705
839	5706
840	5707
841, 842	5708
851	1302, 2108
852 (1st 2 sentences)	3309, 3310
852 (less 1st 2 sentences)	Elim.
853	3311
854	3308, 3312, 3351, 3363, 3504
855	3306, 3319
856	3313
857	3317, 3318, 3364
858	3320
859	3305
860	1302
861	3501–3503
862	3316
863	3315, 7512, 7701
864	3315, 3318
865	3314
866, 867	Rep.
868	1302, 7701
869	3320
901(a)	5541
901(b)	Rep.
901(c)	T. 2 §60e–2. Rep. in part.
901(d), (e)	5541
902	5541; T. 2 §60e–2
911	5542
912	5543
912a, 912b	5542
913	5544
914	5506
921	5545
921a	5546
922	5546
926	5545
931	T. 2 §60e–3
932	T. 2 §60e–4
932a	T. 2 §60e–5
932b	T. 2 §60e–6
932c(a)–(c)	T. 2 §60e–7
932c(d)	8331
932d(a)–(c)	T. 2 §60e–8
932d(d)	8331
932d(e)	Rep.
932d(f)	T. 2 §60e–8
932e(a)–(e)	T. 2 §60e–9
932e(f)	8331
932f(a)–(d)	T. 2 §60e–10
932f(e)	8331
932f(f)	T. 2 §60e–10
932f(g)	Rep.
932g(a)–(c)	T. 2 §60e–11
932g(d)	8331
932g(e)	T. 2 §60e–11
932h(a), (b)	T. 2 §60e–12
932h(c)	8331
932h(d)	T. 2 §60e–12
932i(a), (b)	T. 2 §60e–13
932i(c)	8331
932i(d), (e)	T. 2 §60e–13
933	5544; T. 2 §60e–2b
933a	T. 31 §46a (See Rev. T. 31 Table)
934, 935	Rep.
941	5549
942–942b	Rep.
943	5547
943a	Rep.
944(a)	6101
944(b), (c)	5504
944(d)	5504, 6101
945	5504, 5548, 6101
946	5342
947–954	Rep.
955	T. 2 §60e–4a
956–958	Rep.
1001	551
1002	552
1003	553
1004	554
1005	555
1006	556
1007	557
1008	558
1009	701–706
1010 (1st sentence)	3105
1010 (2d sentence)	7521
1010 (3d sentence)	4301, 5335, 5362
1010 (4th sentence)	3344
1010 (5th sentence)	1305
1011	559
1012–1014	500
1031–1040	T. 28 §§2341–2350
1041	T. 28 §2352
1042	T. 28 §2351
1045(a)–(d)	Elim.
1045(e)	571
1045a	572
1045b	573
1045c	574
1045d	575
1045e	576
1051	5352, 5353
1052	5351
1053	8144
1054	8331, 8332
1055	5354
1056	Rep.
1057	5355
1058	5356
1071	5101
1072, 1072a	5115
1073	Rep.
1074	7154
1075	Rep.
1076	Elim.
1081	5102
1082	5102, 5341, 5342
1083	5103
1084(a)	T. 2 §60e–2a
1084(b), (c)	5102, 5103
1085	305
1091	5102
1092, 1093	5106
1094	5105
1101	5112
1102	5107, 5110
1103	5110
1104	5111
1105(a)–(l)	3324, 5108
1105(m)	Rep.
1105a	5114
1105b	Elim.
1106	5113
1107	5337
1111, 1112	5104
1113	5332
1114–1116	Rep.
1117	5595
1121	5335
1122	5336
1123	5335, 5336
1124, 1125	Rep.
1131	5333
1132	5334
1133	5333
1134	5545
1141, 1142	Rep.
1151	305
1152, 1153	Rep.
1161	3104, 3325, 5361
1162(a)	3325
1162(b)	5361
1162(c)	3104
1163	3104
1171	5301
1172	5302
1173	5303
1174	5304
1181	5343
1182(a)	5344, 5581
1182(b)	8331
1182(c)	5344
1183	8704
1184	Rep.
2001	4301
2002	4302
2003	4307
2004	4303
2005	4304
2006	4305
2007(a)	4308
2007(b)–(d)	4306
2061	5508, 6301, 6305
2061a	5551, 6302
2062(a), (b)	6303
2062(c), (d)	6304
2062(e)	6303
2062(f)	6305
2062(g)	6310
2062(h)	6302
2062(i)	6303
2062a, 2062b	Rep.
2063	6307
2064(a)–(c)	6302
2064(d)	6309
2064(e)	6308
2065	6311
2066(a)	6304
2066(b)–(d)	Rep.
2067	6301
2068–2070	Rep.
2071	6324
2091(a)	8701, 8716
2091(b)	8701
2091(c)	8706
2091(d)	8701, 8716
2092(a)–(c)	8704
2092(d)	Rep.
2093	8705
2094(a) (1st par.)	8707
2094(a) (2d par.)	8702
2094(b)	8708
2094(c), (d)	8714. Elim. in part.
2095	8706
2096	8709, 8710
2097	8711, 8712
2098	8703
2099	Elim.
2100	8716. Elim. in part.
2101	8713. Elim. in part.
2102	1308. Elim. in part.
2103	8715. Elim. in part.
2121	1308, 4506
2122	4501
2123(a)	4503
2123(b)	4504
2123(c)	4505
2123(d), (e)	4502
2123(f)	3362
2123(g)	4502
2131	5901
2132	5901, 8331
2133	5901
2134	5902
2151	T. 10 §1481
2152, 2153	T. 10 §§1481, 1482
2154	T. 10 §1481
2155–2160	T. 10 §§1483–1488
2161, 2162	T. 10 §1482
2163	Rep.
2171	T. 42 §1973cc–1
2172	T. 42 §1973cc–2
2173	T. 42 §1973cc–3
2181	T. 42 §1973cc–11
2182	T. 42 §1973cc–12
2183	T. 42 §1973cc–13
2184	T. 42 §1973cc–14
2185	T. 42 §1973cc–15
2191	T. 42 §1973cc–21
2192	T. 42 §1973cc–22
2193	T. 42 §1973cc–23
2194	T. 42 §1973cc–24
2195	T. 42 §1973cc–25
2196	T. 42 §1973cc–26
2201–2209	Rep.
2210	5311
2211(a)	5312
2211(b)(1)–(14)	5313
2211(b)(15) (less proviso)	Elim.
2211(b)(15) (proviso)	5314
2211(b)(16)–(19)	5313
2211(c)(1)–(38)	5314
2211(c)(39) (less proviso)	Elim.
2211(c)(39) (proviso)	5315
2211(c)(40)–(45)	5314
2211(c)(46) (less proviso)	Elim.
2211(c)(46) (proviso)	5315
2211(c)(47)	5314
2211(d)	5315
2211(e)	5316
2211(f)	5317
2211(g)	5315, 5316
2212	5363
2213	5364
2251(a)–(g)	8331
2251(h)–(j)	8341
2251(k)–(t)	8331
2252(a)–(d)	8331
2252(e)	8347
2252(f)	8331, 8347
2252(g)	8331, 8332
2252(h)	8331, 8332, 8347
2253(a)–(e)	8332
2253(f), (g)	8333
2253(h)–(j)	8332
2254	8334
2255	8335
2256(a)–(e)	8336
2256(f)	8333, 8336
2257	8337
2258	8338
2259	8339
2260	8341
2261	8342
2262	8343
2263(a)	3323
2263(b), (c)	8344
2264	8345
2265	8346
2266(a)–(e)	8347
2266(f)	1308
2266(g)	8347
2267	8348
2268	8340
2281	8311
2282	8312
2283(a)	8314
2283(b), (c)	8315
2283a	8313
2284(a), (b)	8316
2284(c), (d)	8317
2284a(a)	8317
2284a(b)	8316
2285(a), (b)	8318
2285(c)	8320
2286	8321
2287	8319
2288	8322
2301(1)–(3)	Elim.
2301(4)	4117
2302	4101
2303	4102
2304	4113
2305	4118
2306	4103
2307	4104
2308	4105
2309	4109
2310	4108
2311	4106
2312, 2313	4107
2314	4114
2315	4115
2316	4116
2317(a)	4113
2317(b), (c)	1308
2318(a)	4111
2318(b)	4110
2318(c)	4111
2318(d)	4107
2318(e)	4117
2319	4112
2331	3343, 3581
2332	3343
2333	3582, 3583
2334	3584
2351–2356	T. 20 §§901–906
2357	5334
2358(a)	5541, 6301
2358(b)	T. 20 §907
2358(c)	8331, 8701
2371–2379	T. 42 §4271–4279
3001	8901
3002(a)–(f)	8901, 8905, 8913
3002(g)	Rep.
3003	8903
3004	8904
3005	8902
3006	8906
3007	8909
3008(a)	Rep.
3008(b)	8909
3009(a), (b)	8913
3009(c)	8908
3009(d)	8907
3010	8910
3011	1308
3012	8911
3013(a)	1104, 5109
3013(b)	Rep.
3014	8912
3031	Elim.
3032	5921
3033–3035	5922
3036	5923
3037	5924
3038	5925
3039	5913
3051–3060	Elim.
3071	5521
3072	5522
3073	5523
3074	5524
3075	5525
3076	5527
3077	Rep.
3078	5526
3101	3326, 3501, 5531, 6303. Elim. in part.
3102(a)–(e)	5532
3102(f)–(h)	Elim.
3103	3326
3104	Elim.
3105(a)–(d)	5533
3105(e)	Elim.
3105(f)	5533
3121–3127	5911

Table Showing Disposition of All Sections of Title 5 Appendix

Title 5 Appendix Former Sections	Title 5 New Sections
Federal Advisory Committee Act
5 U.S.C. App. (FACA §1)	Not repealed but omitted from the text of title 5. Section 1 of the Federal Advisory Committee Act (Public Law 92–463, 86 Stat. 770) provides a short title for the Act.
5 U.S.C. App. (FACA §2)	5 U.S.C. 1002
5 U.S.C. App. (FACA §3)	5 U.S.C. 1001
5 U.S.C. App. (FACA §4)	5 U.S.C. 1003
5 U.S.C. App. (FACA §5)	5 U.S.C. 1004
5 U.S.C. App. (FACA §6(a), (b))	5 U.S.C. 1005
5 U.S.C. App. (FACA §6(c))	Repealed as obsolete. Section 6(c) of the Federal Advisory Committee Act (Public Law 92–463, 86 Stat. 772), as amended by section 201(c) of the Congressional Reports Elimination Act of 1982 (Public Law 97–375, 96 Stat. 1822), provided that the President shall, not later than December 31 of each year, make an annual report to the Congress on the activities, status, and changes in the composition of advisory committees in existence during the preceding fiscal year. Section 6(c) of the Federal Advisory Committee Act is obsolete because of section 3003 of the Federal Reports Elimination and Sunset Act of 1995 (Public Law 104–66, 31 U.S.C. 1113 note). See the 3d item on page 173 of House Document No. 103–7.
5 U.S.C. App. (FACA §7)	5 U.S.C. 1006
5 U.S.C. App. (FACA §8)	5 U.S.C. 1007
5 U.S.C. App. (FACA §9)	5 U.S.C. 1008
5 U.S.C. App. (FACA §10)	5 U.S.C. 1009
5 U.S.C. App. (FACA §11)	5 U.S.C. 1010
5 U.S.C. App. (FACA §12)	5 U.S.C. 1011
5 U.S.C. App. (FACA §13)	5 U.S.C. 1012
5 U.S.C. App. (FACA §14)	5 U.S.C. 1013
5 U.S.C. App. (FACA §15)	5 U.S.C. 1014
5 U.S.C. App. (FACA §16)	Not repealed but omitted from the text of title 5. Section 16 (formerly section 15) of the Federal Advisory Committee Act (Public Law 92–463, 86 Stat. 776) provides that, except as provided in section 7(b) of the Act (restated at section 1006(b) of title 5, United States Code), the Act shall become effective upon the expiration of 90 days following October 6, 1972.
Inspector General Act of 1978
5 U.S.C. App. (IGA §1)	Not repealed but omitted from the text of title 5. Section 1 of the Inspector General Act of 1978 provides a short title for the Act.
5 U.S.C. App. (IGA §2)	5 U.S.C. 402
5 U.S.C. App. (IGA §3)	5 U.S.C. 403
5 U.S.C. App. (IGA §3) note (Pub. L. 110–409, §4(a)(3))	5 U.S.C. 423(a)
5 U.S.C. App. (IGA §3) note (Pub. L. 110–409, §4(b)(1))	5 U.S.C. 423(b)
5 U.S.C. App. (IGA §3) note (Pub. L. 110–409, §4(b)(2))	Repealed as obsolete. Section 4(b)(2) of the Inspector General Reform Act of 2008 (5 U.S.C. App. (IGA §3) note) provided a limitation on pay increases resulting from the application of section 4(b)(1) of the Inspector General Reform Act of 2008, which is restated as section 423(b) of title 5, United States Code. The provision is obsolete because section 4(b)(2)(B) of the Inspector General Reform Act of 2008 provided that the limitation "shall not apply to any adjustment made in fiscal year 2013 or each fiscal year thereafter".
5 U.S.C. App. (IGA §3) note (Pub. L. 110–409, §4(c))	5 U.S.C. 423(c)
5 U.S.C. App. (IGA §4)	5 U.S.C. 404
5 U.S.C. App. (IGA §5)	5 U.S.C. 405
5 U.S.C. App. (IGA §6)	5 U.S.C. 406
5 U.S.C. App. (IGA §7)	5 U.S.C. 407
5 U.S.C. App. (IGA §8)	5 U.S.C. 408
5 U.S.C. App. (IGA §8A(a), (b))	Not repealed but omitted from the text of title 5. Section 8A(a) of the Inspector General Act of 1978 (5 U.S.C. App. (IGA §8A(a))) provides that the Inspector General of the Agency for International Development shall supervise, direct, and control all security activities relating to the programs and operations of that agency, and section 8A(b) of the Act (5 U.S.C. App (IGA §8A(b))) provides for the appointment of an Assistant Inspector General for Security who shall have responsibility for supervising the performance of security activities relating to programs and operations of the Agency for International Development. However, the supervision of security activities referred to section 8A(a) and section 8A(b) of the Act is no longer performed by the Inspector General of the Agency for International Development because of superseding provisions in section 587(a) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1999 (Public Law 105–277, div. A, §101(d) [title V, §587], 22 U.S.C. 2381 note).
5 U.S.C. App. (IGA §8A(c))	5 U.S.C. 409(b)
5 U.S.C. App. (IGA §8A(d))	5 U.S.C. 409(c)
5 U.S.C. App. (IGA §8A(e))	5 U.S.C. 409(d)
5 U.S.C. App. (IGA §8A(f))	5 U.S.C. 409(a)
5 U.S.C. App. (IGA §8B)	5 U.S.C. 410
5 U.S.C. App. (IGA §8C)	5 U.S.C. 411
5 U.S.C. App. (IGA §8D)	5 U.S.C. 412
5 U.S.C. App. (IGA §8E)	5 U.S.C. 413
5 U.S.C. App. (IGA §8F)	5 U.S.C. 414
5 U.S.C. App. (IGA §8G)	5 U.S.C. 415
5 U.S.C. App. (IGA §8H)	5 U.S.C. 416
5 U.S.C. App. (IGA §8I)	5 U.S.C. 417
5 U.S.C. App. (IGA §8J)	5 U.S.C. 418
5 U.S.C. App. (IGA §8K)	Previously repealed.
5 U.S.C. App. (IGA §8L)	5 U.S.C. 419
5 U.S.C. App. (IGA §8M)	5 U.S.C. 420
5 U.S.C. App. (IGA §8N)	5 U.S.C. 421
5 U.S.C. App. (IGA §9)	5 U.S.C. 422
5 U.S.C. App. (IGA §10)	Not repealed but omitted from the text of title 5. Section 10 of the Inspector General Act of 1978 amended sections 5315 and 5316 of title 5, United States Code, and amended section 202(e) of the Act of October 15, 1976 (Public Law 94–505, 42 U.S.C. 3522(e)), which was subsequently repealed by section 102(e)(2) of the Inspector General Act Amendments of 1988 (Public Law 100–504, 102 Stat. 2517).
5 U.S.C. App. (IGA §11)	5 U.S.C. 424(a) through (e)(3)
5 U.S.C. App. (IGA §12)	5 U.S.C. 401
5 U.S.C. App. (IGA §13)	Not repealed but omitted from the text of title 5. Section 13 of the Inspector General Act of 1978 provides that the provisions of the Act and the amendments made by the Act shall take effect October 1, 1978.
Ethics in Government Act of 1978
5 U.S.C. App. (EGA §101)	5 U.S.C. 13103
5 U.S.C. App. (EGA §101 note) (Pub. L. 95–521, §1)	Not repealed but omitted from the text of title 5. Section 1 (i.e., the undesignated 1st section) of the Ethics in Government Act of 1978 (Public Law 95–521, 92 Stat. 1824) provides a short title for the Act.
5 U.S.C. App. (EGA §102)	5 U.S.C. 13104
5 U.S.C. App. (EGA §103)	5 U.S.C. 13105
5 U.S.C. App. (EGA §104)	5 U.S.C. 13106
5 U.S.C. App. (EGA §105)	5 U.S.C. 13107
5 U.S.C. App. (EGA §106)	5 U.S.C. 13108
5 U.S.C. App. (EGA §107)	5 U.S.C. 13109
5 U.S.C. App. (EGA §108)	5 U.S.C. 13110
5 U.S.C. App. (EGA §109)	5 U.S.C. 13101
5 U.S.C. App. (EGA §110)	5 U.S.C. 13111
5 U.S.C. App. (EGA §111)	5 U.S.C. 13102
5 U.S.C. App. (EGA §112)	Previously repealed.
5 U.S.C. App. (EGA §§201 through 212)	Previously repealed.
5 U.S.C. App. (EGA §§301 through 309)	Previously repealed.
5 U.S.C. App. (EGA §401)	5 U.S.C. 13121
5 U.S.C. App. (EGA §402)	5 U.S.C. 13122
5 U.S.C. App. (EGA §403)	5 U.S.C. 13123
5 U.S.C. App. (EGA §404)	5 U.S.C. 13124
5 U.S.C. App. (EGA §405)	5 U.S.C. 13125
5 U.S.C. App. (EGA §406)	Not repealed but omitted from the text of title 5. Section 406 of the Ethics in Government Act of 1978 (Public Law 95–521, 92 Stat. 1864) amended section 5316 of title 5, United States Code.
5 U.S.C. App. (EGA §407)	Not repealed but omitted from the text of title 5. Section 407 of the Ethics in Government Act of 1978 (Public Law 95–521), as added by section 4 of Public Law 98–150 (97 Stat. 960), and amended by section 8 of Public Law 100–598 (102 Stat. 3035), amended sections 5314 and 5316 of title 5, United States Code.
5 U.S.C. App. (EGA §408)	5 U.S.C. 13126
5 U.S.C. App. (EGA §501)	5 U.S.C. 13143
5 U.S.C. App. (EGA §502)	5 U.S.C. 13144
5 U.S.C. App. (EGA §503)	5 U.S.C. 13142
5 U.S.C. App. (EGA §504)	5 U.S.C. 13145
5 U.S.C. App. (EGA §505)	5 U.S.C. 13141

Statutory Notes and Related Subsidiaries

Enacting Clause

Pub. L. 89–554, §1, Sept. 6, 1966, 80 Stat. 378, provided in part: "That the laws relating to the organization of the Government of the United States and to its civilian officers and employees, generally, are revised, codified, and enacted as title 5 of the United States Code, entitled 'Government Organization and Employees', and may be cited as '5 U.S.C., §    '."

Legislative Purpose: Inconsistent Provisions

Pub. L. 89–554, §7(a), Sept. 6, 1966, 80 Stat. 631, provided that: "The legislative purpose in enacting sections 1–6 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act [Sept. 6, 1966]. Laws effective after June 30, 1965, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency."

References to Other Laws

Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631, provided that: "A reference to a law replaced by sections 1–6 of this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act."

Outstanding Orders, Rules and Regulations

Pub. L. 89–554, §7(c), Sept. 6, 1966, 80 Stat. 631, provided that: "An order, rule, or regulation in effect under a law replaced by sections 1–6 of this Act continues in effect under the corresponding provision enacted by this Act until repealed, amended, or superseded."

Savings Provision

Pub. L. 89–554, §7(d), Sept. 6, 1966, 80 Stat. 631, provided that: "An action taken or an offense committed under a law replaced by sections 1–6 of this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act."

Legislative Construction

Pub. L. 89–554, §7(e), Sept. 6, 1966, 80 Stat. 631, provided that: "An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act or by reason of the caption or catchline thereof."

Pay, Allowances, Compensation, or Annuity

Pub. L. 89–554, §7(f), Sept. 6, 1966, 80 Stat. 631, provided that: "The enactment of this Act does not increase or decrease the pay, allowances, compensation, or annuity of any person."

Separability

Pub. L. 89–554, §7(g), Sept. 6, 1966, 80 Stat. 631, provided that: "If a provision enacted by this Act is held invalid, all valid provisions that are separable from the invalid provision remain in effect. If a provision of this Act is held invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid application or applications."

Applicability to Commissioned Officers of Public Health Service and Coast and Geodetic Survey

Pub. L. 89–554, §7(h), Sept. 6, 1966, 80 Stat. 632, provided that: "Sections 1–6 of this Act shall be construed to apply to commissioned officers of the Public Health Service and commissioned officers of the Coast and Geodetic Survey [now the National Oceanic and Atmospheric Administration] to the same extent that the laws replaced by those sections applied to these officers immediately before the date of enactment of this Act [Sept. 6, 1966]."

Repeals; Continued Right to Deferred Annuity

Pub. L. 89–554, §8(a), Sept. 6, 1966, 80 Stat. 632, repealed the sections or parts thereof of the Revised Statutes or Statutes at Large codified in this title, except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before Sept. 6, 1966, and except as provided by section 7 of Pub. L. 89–554.

Pub. L. 89–554, §8(b), Sept. 6, 1966, 80 Stat. 632, provided that: "The right to a deferred annuity on satisfaction of the conditions attached thereto is continued notwithstanding the repeal of the law conferring the right."

Pub. L. 89–554, §8(c), Sept. 6, 1966, 80 Stat. 632, provided that: "The repeal of a law by this Act may not be construed as a legislative inference that the provision was or was not in effect before its repeal."

Purposes; Restatement Does Not Change Meaning or Effect of Existing Law: Pub. L. 117–286

Pub. L. 117–286, §2, Dec. 27, 2022, 136 Stat. 4196, provided that:

"(a) Purposes.—The purposes of this Act [enacting chapters 4, 10, and 131 of this title, repealing provisions formerly set out in the Appendix to this title, and making numerous conforming amendments; see Tables for full classification] are—

"(1) to make revisions in title 5, United States Code, as necessary to keep the title current; and

"(2) to make technical amendments to improve the United States Code.

"(b) Restatement Does Not Change Meaning or Effect of Existing Law.—

"(1) In general.—The restatement of existing law enacted by this Act does not change the meaning or effect of the existing law. The restatement incorporates in title 5, United States Code, various provisions that were enacted separately over a period of years, reorganizing them, conforming style and terminology, modernizing obsolete language, and correcting drafting errors. These changes serve to remove ambiguities, contradictions, and other imperfections, but they do not change the meaning or effect of the existing law or impair the precedential value of earlier judicial decisions or other interpretations.

"(2) Rule of construction.—

"(A) In general.—Notwithstanding the plain meaning rule or other rules of statutory construction, a change in wording made in the restatement of existing law enacted by this Act serves to clarify the existing law as indicated in paragraph (1), but not to change the meaning or effect of the existing law.

"(B) Revision notes.—Subparagraph (A) applies whether or not a change in wording is explained by a revision note appearing in a congressional report accompanying this Act. If such a revision note does appear, a court shall consider the revision note in interpreting the change."

Transitional and Savings Provisions: Pub. L. 117–286

Pub. L. 117–286, §5, Dec. 27, 2022, 136 Stat. 4360, provided that:

"(a) Definitions.—In this section:

"(1) Restated provision.—The term 'restated provision' means a provision of title 5, United States Code, that is enacted by section 3.

"(2) Source provision.—The term 'source provision' means a provision of law that is replaced by a restated provision.

"(b) Cutoff Date.—The restated provisions replace certain provisions of law enacted on or before October 19, 2021. If a law enacted after that date amends or repeals a source provision, that law is deemed to amend or repeal, as the case may be, the corresponding restated provision. If a law enacted after that date is otherwise inconsistent with a restated provision or a provision of this Act [enacting chapters 4, 10, and 131 of this title, repealing provisions formerly set out in the Appendix to this title, and making numerous conforming amendments; see Tables for full classification], that law supersedes the restated provision or provision of this Act to the extent of the inconsistency.

"(c) Original Date of Enactment Unchanged.—A restated provision is deemed to have been enacted on the date of enactment of the corresponding source provision.

"(d) References to Restated Provisions.—A reference to a restated provision is deemed to refer to the corresponding source provision.

"(e) References to Source Provisions.—A reference to a source provision, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding restated provision.

"(f) Regulations, Orders, and Other Administrative Actions.—A regulation, order, or other administrative action in effect under a source provision continues in effect under the corresponding restated provision.

"(g) Actions Taken and Offenses Committed.—An action taken or an offense committed under a source provision is deemed to have been taken or committed under the corresponding restated provision.

"(h) Legislative Construction.—An inference of legislative construction is not to be drawn by reason of a restated provision's location in the United States Code or by reason of the heading used for the restated provision."

Repeals: Pub. L. 117–286

Pub. L. 117–286, §7, Dec. 27, 2022, 136 Stat. 4361 repealed specified laws relating to Federal advisory committees, Inspectors General, and ethics requirements, except with respect to rights and duties that matured, penalties that were incurred, or proceedings that were begun before Dec. 27, 2022.

Interagency Personnel Rotations

Pub. L. 112–239, div. A, title XI, §1107, Jan. 2, 2013, 126 Stat. 1974, provided that:

"(a) Finding and Purpose.—

"(1) Finding.—Congress finds that the national security and homeland security challenges of the 21st century require that executive branch personnel use a whole-of-Government approach in order for the United States Government to operate in the most effective and efficient manner.

"(2) Purpose.—The purpose of this section is to increase the efficiency and effectiveness of the Government by fostering greater interagency experience among executive branch personnel on national security and homeland security matters involving more than 1 agency.

"(b) Committee on National Security Personnel.—

"(1) Establishment.—There is established a Committee on National Security Personnel within the Executive Office of the President.

"(2) Membership.—The members of the Committee shall include—

"(A) designees of the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, the Assistant to the President for National Security Affairs, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security (1 member to be designated by each); and

"(B) such other members as the President shall designate.

"(c) Program Established.—

"(1) Not later than 270 days after the date of the enactment of this Act [Jan. 2, 2013], the Committee on National Security Personnel, in consultation with representatives of such other agencies as the Committee determines to be appropriate, shall develop and issue a National Security Human Capital Strategy providing policies, processes, and procedures for a program for the interagency rotation of personnel among positions within National Security Interagency Communities of Interest.

"(2) The strategy required by paragraph (1) shall, at a minimum—

"(A) identify specific Interagency Communities of Interest for the purpose of carrying out the program;

"(B) designate agencies to be included or excluded from the program;

"(C) define categories of positions to be covered by the program;

"(D) establish processes by which the heads of relevant agencies may identify—

"(i) positions in Interagency Communities of Interest that are available for rotation under the program; and

"(ii) individual employees who are available to participate in rotational assignments under the program; and

"(E) promulgate procedures for the program, including—

"(i) any minimum or maximum periods of service for participation in the program;

"(ii) any training and education requirements associated with participation in the program;

"(iii) any prerequisites or requirements for participation in the program; and

"(iv) appropriate performance measures, reporting requirements, and other accountability devices for the evaluation of the program.

"(d) Program Requirements.—The policies, processes, and procedures established pursuant to subsection (c) shall, at a minimum, provide that—

"(1) during each of the first 4 fiscal years after the fiscal year in which this Act is enacted—

"(A) the interagency rotation program shall be carried out in at least 2 Interagency Communities of Interest, of which 1 shall be an Interagency Community of Interest for emergency management and 1 shall be an Interagency Community of Interest for stabilization and reconstruction; and

"(B) not fewer than 20 employees in the executive branch of the Government shall be assigned to participate in the interagency personnel rotation program;

"(2) an employee's participation in the interagency rotation program shall require the consent of the head of the agency and shall be voluntary on the part of the employee;

"(3) employees selected to perform interagency rotational service are selected in a fully open and competitive manner that is consistent with the merit system principles set forth in paragraphs (1) and (2) of section 2301(b) of title 5, United States Code, unless the Interagency Community of Interest position is otherwise exempt under another provision of law;

"(4) an employee performing service in a position in another agency pursuant to the program established under this section shall be entitled to return, within a reasonable period of time after the end of the period of service, to the position held by the employee, or a corresponding or higher position, in his or her employing agency;

"(5) an employee performing interagency rotational service shall have all the rights that would be available to the employee if the employee were detailed or assigned under a provision of law other than this section from the agency employing the employee to the agency in which the position in which the employee is serving is located; and

"(6) an employee participating in the program shall receive performance evaluations from officials in his or her employing agency that are based on input from the supervisors of the employee during his or her service in the program that are based primarily on the contribution of the employee to the work of the agency in which the employee performed such service, and these performance evaluations shall be provided the same weight in the receipt of promotions and other rewards by the employee from the employing agency as performance evaluations for service in the employing agency.

"(e) Selection of Individuals to Fill Senior Positions.—The head of each agency participating in the program established pursuant to subsection (c) shall ensure that, in selecting individuals to fill senior positions within an Interagency Community of Interest, the agency gives a strong preference to individuals who have performed interagency rotational service within the Interagency Community of Interest pursuant to such program.

"(f) Interagency Community of Interest Defined.—As used in this section, the term 'National Security Interagency Community of Interest' or 'Interagency Community of Interest' means the positions in the executive branch of the Government that, as determined by the Committee on National Security Personnel—

"(1) as a group are positions within multiple agencies of the executive branch of the Government; and

"(2) have significant responsibility for the same substantive, functional, or regional subject area related to national security or homeland security that requires integration of the positions and activities in that area across multiple agencies to ensure that the executive branch of the Government operates as a single, cohesive enterprise to maximize mission success and minimize cost.

"(g) Report on Performance Measures.—Not later than the end of the 2nd fiscal year after the fiscal year in which this Act is enacted, the Committee on National Security Personnel shall assess the performance measures described in subsection (c)(2)(E)(iv) and issue a report to Congress on the assessment of those performance measures.

"(h) GAO Review.—Not later than the end of the 2nd fiscal year after the fiscal year in which this Act is enacted, the Comptroller General of the United States shall submit to Congress a report assessing the implementation and effectiveness of the interagency rotation program established pursuant to this section. The report required by this section shall address, at a minimum—

"(1) the extent to which the requirements of this section have been implemented by the Committee on National Security Personnel and by national security agencies;

"(2) the extent to which national security agencies have participated in the program established pursuant to this section, including whether the heads of such agencies have—

"(A) identified positions within the agencies that are National Security Interagency Communities of Interest and had employees from other agencies serve in rotational assignments in such positions; and

"(B) identified employees who are eligible for rotational assignments in National Security Interagency Communities of Interest and had such employees serve in rotational assignments in other agencies;

"(3) the extent to which employees serving in rotational assignments under the program established pursuant to this section have benefitted from such assignments, including an assessment of—

"(A) the period of service;

"(B) the duties performed by the employees during such service;

"(C) the value of the training and experience gained by participating employees through such service; and

"(D) the positions (including grade level) held by employees before and after completing interagency rotational service under this section; and

"(4) the extent to which interagency rotational service under this section has improved or is expected to improve interagency integration and coordination within National Security Interagency Communities of Interest.

"(i) Exclusion.—This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))."

Improvement of United States Code by Pub. L. 90–83; Legislative Purpose; Inconsistent Provisions; Corresponding Provisions; Savings and Separability of Provisions

Pub. L. 90–83, §9(a)–(g), Sept. 11, 1967, 81 Stat. 222, provided that:

"(a) The legislative purpose in enacting sections 1–8 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act. Laws effective after February 21, 1967, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency.

"(b) A reference to a law replaced by sections 1–8 of this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act.

"(c) An order, rule, or regulation in effect under a law replaced by sections 1–8 of this Act continues in effect under the corresponding provision enacted by this Act until repealed, amended, or superseded.

"(d) An action taken or an offense committed under a law replaced by sections 1–8 of this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act.

"(e) An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act or by reason of the caption or catchline thereof.

"(f) The enactment of this Act does not increase or decrease the pay, allowances, compensation, or annuity of any person.

"(g) If a provision enacted by this Act is held invalid, all valid provisions that are severable from the invalid provision remain in effect. If a provision of this Act is held invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid application or applications."

PART I—THE AGENCIES GENERALLY

        

        

        

Editorial Notes

Amendments

2022—Pub. L. 117–286, §4(d)(2), Dec. 27, 2022, 136 Stat. 4359, added items for chapters 4 and 10.

1996—Pub. L. 104–121, title II, §253, Mar. 29, 1996, 110 Stat. 874, added item for chapter 8.

¹ Pub. L. 90–83 added section 500 to chapter 5 without making a corresponding change in Part analysis.

² Editorially supplied. Chapter 6 added by Pub. L. 96–354 without a corresponding amendment of Part analysis.

CHAPTER 1—ORGANIZATION

        

§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.

The Department of Homeland Security.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378; Pub. L. 89–670, §10(b), Oct. 15, 1966, 80 Stat. 948; Pub. L. 91–375, §6(c)(1), Aug. 12, 1970, 84 Stat. 775; Pub. L. 95–91, title VII, §710(a), Aug. 4, 1977, 91 Stat. 609; Pub. L. 96–88, title V, §508(b), Oct. 17, 1979, 93 Stat. 692; Pub. L. 100–527, §13(b), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 109–241, title IX, §902(a)(1), July 11, 2006, 120 Stat. 566.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1.	R.S. §158. Feb. 9, 1889, ch. 122, §1 (38th through 54th words), 25 Stat. 659.
		Feb. 14, 1903, ch. 552, §1 (83d through 99th words), 32 Stat. 825.
		Mar. 4, 1913, ch. 141, §1 (75th through 91st words), 37 Stat. 736.
		Aug. 10, 1949, ch. 412, §4 "Sec. 201(c)", 63 Stat. 579.
		July 31, 1956, ch. 802, §1(a), 70 Stat. 732.
	5 U.S.C. 2.	R.S. §159.

The reference in former section 1 to the application of the provisions of this title, referring to title IV of the Revised Statutes, is omitted as unnecessary as the application of those provisions is stated in the text.

The statement in former section 2 that the use of the word "department" means one of the Executive departments named in former section 1 is omitted as unnecessary as the words "Executive department" are used in this title when Executive department is meant.

"The Department of Commerce" is substituted for "The Department of Commerce and Labor" on authority of the act of March 4, 1913, ch. 141, §1, 37 Stat. 736.

Editorial Notes

Amendments

2006—Pub. L. 109–241 inserted "The Department of Homeland Security."

1988—Pub. L. 100–527 inserted "The Department of Veterans Affairs."

1979—Pub. L. 96–88 substituted "Department of Health and Human Services" for "Department of Health, Education, and Welfare" and inserted "The Department of Education."

1977—Pub. L. 95–91 inserted "The Department of Energy."

1970—Pub. L. 91–375 struck out "The Post Office Department."

1966—Pub. L. 89–670 inserted "The Department of Housing and Urban Development." and "The Department of Transportation."

Statutory Notes and Related Subsidiaries

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–527 effective Mar. 15, 1989, see section 18(a) of Pub. L. 100–527, set out as a Department of Veterans Affairs Act note under section 301 of Title 38, Veterans' Benefits.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–88 effective May 4, 1980, with specified exceptions, see section 601 of Pub. L. 96–88, set out as an Effective Date note under section 3401 of Title 20, Education.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective Date of 1966 Amendment

Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by the President and published in the Federal Register, see section 16(a), formerly §15(a), of Pub. L. 89–670 and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453.

Short Title of 2025 Amendment

Pub. L. 118–231, §1, Jan. 4, 2025, 138 Stat. 2829, provided that: "This Act [enacting subchapter III of chapter 3 of this title] may be cited as the 'Government Service Delivery Improvement Act'."

Short Title of 2024 Amendment

Pub. L. 118–192, §1, Dec. 23, 2024, 138 Stat. 2660, provided that: "This Act [amending section 8332 of this title and section 719 of Title 38, Veterans' Benefits] may be cited as the 'No Congressionally Obligated Recurring Revenue Used as Pensions To Incarcerated Officials Now Act' or the 'No CORRUPTION Act'."

Pub. L. 118–188, §1, Dec. 23, 2024, 138 Stat. 2644, provided that: "This Act [amending sections 3302, 3304, 3330a, and 9810 of this title, sections 3008 and 6918 of Title 22, Foreign Relations and Intercourse, and section 17013 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under section 3304 of this title] may be cited as the 'Chance to Compete Act of 2024'."

Pub. L. 118–104, §1, Oct. 2, 2024, 138 Stat. 1586, provided that: "This Act [amending section 552a of this title] may be cited as the 'Congressional Budget Office Data Access Act'."

Pub. L. 118–97, §1, Oct. 1, 2024, 138 Stat. 1573, provided that: "This Act [amending section 801 of this title and enacting provisions set out as a note under section 801 of this title] may be cited as the 'GAO Database Modernization Act of 2023'."

Pub. L. 118–71, §1, July 25, 2024, 138 Stat. 1492, provided that: "This Act [amending section 413 of this title and enacting provisions set out as notes under section 413 of this title and section 4041 of Title 18, Crimes and Criminal Procedure] may be cited as the 'Federal Prison Oversight Act'."

Pub. L. 118–38, §1, Feb. 6, 2024, 138 Stat. 13, provided that: "This Act [enacting and amending provisions set out as notes under section 5547 of this title] may be cited as the 'Overtime Pay for Protective Services Act of 2023'."

Short Title of 2023 Amendment

Pub. L. 118–9, §1, July 25, 2023, 137 Stat. 55, provided that: "This Act [amending section 553 of this title] may be cited as the 'Providing Accountability Through Transparency Act of 2023'."

Short Title of 2022 Amendment

Pub. L. 117–328, div. Y, §101, Dec. 29, 2022, 136 Stat. 5523, provided that: "This division [amending section 8421a of this title] may be cited as the 'Continuity for Operators with Necessary Training Required for ATC Contract Towers Act of 2022' or the 'CONTRACT Act of 2022'."

Pub. L. 117–263, div. E, title LIII, §5321, Dec. 23, 2022, 136 Stat. 3255, provided that: "This subtitle [subtitle B (§§5321, 5322) of title LIII of div. E of Pub. L. 117–263, enacting section 3330f of this title and provisions set out as a note under section 3330f of this title] may be cited as the 'Periodically Listing Updates to Management Act of 2022' or the 'PLUM Act of 2022'."

Pub. L. 117–225, §1, Dec. 9, 2022, 136 Stat. 2293, provided that: "This Act [amending sections 8336, 8412, 8414, 8415, 8421, 8421a, 8425, and 8462 of this title, sections 4045, 4046, and 4052 of Title 22, Foreign Relations and Intercourse, and section 2152 of Title 50, War and National Defense, and enacting provisions set out as notes under section 8336 of this title] may be cited as the 'First Responder Fair Return for Employees on Their Initial Retirement Earned Act' or the 'First Responder Fair RETIRE Act'."

Pub. L. 117–108, title I, §102(a), Apr. 6, 2022, 136 Stat. 1138, provided that: "This section [enacting section 2903 of Title 39, Postal Service, amending section 8909a of this title, and enacting provisions set out as a note under section 8909a of this title] may be cited as the 'USPS Fairness Act'."

Short Title of 2021 Amendment

Pub. L. 117–81, div. F, title LXII, §6201, Dec. 27, 2021, 135 Stat. 2389, provided that: "This title [enacting section 4087 of Title 22, Foreign Relations and Intercourse, amending section 6502 of this title, section 1015d of Title 20, Education, and sections 3951 and 4026 of Title 22, and enacting provisions set out as notes under section 6502 of this title and section 1015d of Title 20] may be cited as the 'Foreign Service Families Act of 2021'."

Pub. L. 117–17, §1, June 17, 2021, 135 Stat. 287, provided that: "This Act [amending section 6103 of this title] may be cited as the 'Juneteenth National Independence Day Act'."

Pub. L. 116–283, div. A, title XI, §1131, Jan. 1, 2021, 134 Stat. 3900, provided that: "This subtitle [subtitle B (§§1131–1138) of title XI of div. A of Pub. L. 116–283, amending section 2302 of this title and enacting and amending provisions set out as notes under section 2301 of this title] may be cited as the 'Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020'."

Short Title of 2020 Amendment

Pub. L. 116–269, §1, Dec. 30, 2020, 134 Stat. 3323, provided that: "This Act [amending provisions set out as a note under section 5547 of this title] may be cited as the 'Secret Service Overtime Pay Extension Act'."

Pub. L. 116–126, §1, Mar. 18, 2020, 134 Stat. 174, provided that: "This Act [enacting sections 8345a and 8466a of this title, amending sections 8331, 8345, 8348, 8401, and 8466 of this title, and enacting provisions set out as notes under section 8331 of this title] may be cited as the 'Representative Payee Fraud Prevention Act of 2019'."

Short Title of 2019 Amendment

Pub. L. 116–92, div. A, title XI, §1121, Dec. 20, 2019, 133 Stat. 1605, provided that: "This subtitle [subtitle B (§§1121–1124) of title XI of Pub. L. 116–92, enacting chapter 92 of this title, section 1316b of Title 2, The Congress, section 2339 of Title 10, Armed Forces, and section 4714 of Title 41, Public Contracts, amending sections 1302 and 1317 of Title 2, section 62 of Title 26, Internal Revenue Code, and section 604 of Title 28, Judiciary and Judicial Procedure, and enacting provisions set out as notes under sections 9201 and 9202 of this title, section 2339 of Title 10, section 10132 of Title 34, Crime Control and Law Enforcement, and section 4714 of Title 41] may be cited as the 'Fair Chance to Compete for Jobs Act of 2019' or the 'Fair Chance Act'."

Pub. L. 116–92, div. F, title LXXVI, §7601, Dec. 20, 2019, 133 Stat. 2304, provided that: "This subtitle [subtitle A (§§7601–7606) of title LXXVI of Pub. L. 116–92, amending section 6382 of this title, section 1312 of Title 2, The Congress, and sections 2611 and 2612 of Title 29, Labor, enacting provisions set out as notes under section 6382 of this title, section 1312 of Title 2, and sections 2611 and 2612 of Title 29, and amending provisions set out as a note under section 44935 of Title 49, Transportation] may be cited as the 'Federal Employee Paid Leave Act'."

Pub. L. 116–50, §1, Aug. 22, 2019, 133 Stat. 1073, provided that: "This Act [enacting provisions set out as a note under section 552a of this title] may be cited as the 'Creating Advanced Streamlined Electronic Services for Constituents Act of 2019' or the 'CASES Act'."

Pub. L. 115–435, §1(a), Jan. 14, 2019, 132 Stat. 5529, provided that: "This Act [enacting subchapter II of chapter 3 of this title, subchapter III of chapter 35 of Title 44, Public Printing and Documents, and section 3520A of Title 44, amending section 306 of this title, section 402 of Title 13, Census, section 176a of Title 15, Commerce and Trade, sections 3502, 3504, 3506, 3511, and 3520 of Title 44, and sections 6302 and 6314 of Title 49, Transportation, enacting provisions set out as notes under sections 306 and 311 of this title and sections 101, 3506, and 3561 of Title 44, amending provisions set out as a note under section 20155 of Title 49, and repealing provisions set out as a note under section 3501 of Title 44] may be cited as the 'Foundations for Evidence-Based Policymaking Act of 2018'."

Short Title of 2018 Amendment

Pub. L. 115–383, §1, Dec. 21, 2018, 132 Stat. 5121, provided that: "This Act [amending provisions set out as a note under section 5547 of this title] may be cited as the 'Secret Service Overtime Pay Extension Act'."

Pub. L. 115–352, §1, Dec. 21, 2018, 132 Stat. 5067, provided that: "This Act [amending sections 8334 and 8422 of this title and enacting provisions set out as a note under section 8334 of this title], may be cited as the 'Correcting Miscalculations in Veterans' Pensions Act'."

Pub. L. 115–238, §1, Sept. 7, 2018, 132 Stat. 2450, provided that: "This Act [amending section 6329 of this title and enacting provisions set out as a note under section 6329 of this title] may be cited as the 'Veterans Providing Healthcare Transition Improvement Act'."

Pub. L. 115–195, §1, July 7, 2018, 132 Stat. 1510, provided that: "This Act [amending section 7703 of this title and enacting provisions set out as a note under section 7703 of this title] may be cited as the 'All Circuit Review Act'."

Pub. L. 115–160, §1, Apr. 3, 2018, 132 Stat. 1246, provided that: "This Act [enacting and amending provisions set out as notes under section 5547 of this title] may be cited as the 'Secret Service Recruitment and Retention Act of 2018'."

Short Title of 2017 Amendment

Pub. L. 115–84, §1, Nov. 17, 2017, 131 Stat. 1272, provided that: "This Act [amending sections 8432b and 8433 of this title and enacting provisions set out as notes under sections 8432b and 8433 of this title] may be cited as the 'TSP Modernization Act of 2017'."

Pub. L. 115–73, §1(a), Oct. 26, 2017, 131 Stat. 1235, provided that: "This Act [enacting sections 2307 and 7515 of this title, amending sections 1214, 1221, 2302, 4505a, and 5755 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under sections 1212 and 2301 of this title and section 703 of Title 38, Veterans' Benefits, and amending provisions set out as a note under section 2302 of this title] may be cited as the 'Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017'."

Pub. L. 115–40, §1, June 14, 2017, 131 Stat. 861, provided that: "This Act [amending section 2302 of this title] may be cited as the 'Follow the Rules Act'."

Pub. L. 115–34, §1, May 16, 2017, 131 Stat. 846, provided that: "This Act [amending section 5707 of this title and enacting provisions set out as a note under section 5707 of this title] may be cited as the 'Modernizing Government Travel Act'."

Pub. L. 115–1, §1, Jan. 20, 2017, 131 Stat. 3, provided that: "This Act [enacting sections 3171 and 3172 of this title and provisions set out as a note under section 3171 of this title] may be cited as the 'Tested Ability to Leverage Exceptional National Talent Act of 2017' or the 'TALENT Act of 2017'."

Short Title of 2016 Amendment

Pub. L. 114–328, div. A, title XI, §1138(a), Dec. 23, 2016, 130 Stat. 2460, provided that: "This section [enacting sections 6329a to 6329c of this title, amending section 6502 of this title, and enacting provisions set out as notes under section 6329a of this title] may be cited as the 'Administrative Leave Act of 2016'."

Pub. L. 114–302, §1, Dec. 16, 2016, 130 Stat. 1516, provided that: "This Act [amending section 2303 of this title] may be cited as the 'Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016'."

Pub. L. 114–185, §1, June 30, 2016, 130 Stat. 538, provided that: "This Act [amending section 552 of this title and section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under section 552 of this title] may be cited as the 'FOIA Improvement Act of 2016'."

Pub. L. 114–137, §1, Mar. 18, 2016, 130 Stat. 310, provided that: "This Act [amending sections 3318, 3319, and 9510 of this title and enacting provisions set out as a note under section 3318 of this title] may be cited as the 'Competitive Service Act of 2015'."

Pub. L. 114–136, §1, Mar. 18, 2016, 130 Stat. 301, provided that: "This Act [amending sections 8331, 8701, and 8901 of this title and section 2203 of Title 44, Public Printing and Documents, enacting provisions set out as a note under section 3101 of this title, amending provisions set out as a note under section 102 of Title 3, The President, and repealing provisions set out as a note under section 102 of Title 3] may be cited as the 'Edward "Ted" Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015'."

Short Title of 2015 Amendment

Pub. L. 114–75, §1, Nov. 5, 2015, 129 Stat. 640, provided that: "This Act [enacting section 6329 of this title and provisions set out as notes under section 6329 of this title] may be cited as the 'Wounded Warriors Federal Leave Act of 2015'."

Pub. L. 114–62, §1, Oct. 7, 2015, 129 Stat. 547, provided that: "This Act [amending section 2108 of this title and enacting provisions set out as a note under section 2108 of this title] may be cited as the 'Gold Star Fathers Act of 2015'."

Pub. L. 114–47, §1, Aug. 7, 2015, 129 Stat. 485, provided that: "This Act [enacting chapter 96 of this title] may be cited as the 'Land Management Workforce Flexibility Act'."

Short Title of 2014 Amendment

Pub. L. 113–277, §1, Dec. 18, 2014, 128 Stat. 2995, provided that: "This Act [enacting section 5550 of this title and section 147 of Title 6, Domestic Security, amending sections 3132, 5542, 5547, and 8331 of this title and section 213 of Title 29, Labor, and enacting provisions set out as notes under sections 5542 and 5550 of this title and section 146 of Title 6] may be cited as the 'Border Patrol Agent Pay Reform Act of 2014'."

Pub. L. 113–255, §1, Dec. 18, 2014, 128 Stat. 2920, provided that: "This Act [amending sections 8438, 8439, 8472, and 8477 of this title and enacting provisions set out as notes under section 8438 of this title] may be cited as the 'Smart Savings Act'."

Pub. L. 113–170, §1, Sept. 26, 2014, 128 Stat. 1894, provided that: "This Act [amending section 7703 of this title] may be cited as the 'All Circuit Review Extension Act'."

Pub. L. 113–80, §1, Feb. 12, 2014, 128 Stat. 1006, provided that: "This Act [amending section 1304 of this title] may be cited as the 'OPM IG Act'."

Short Title of 2012 Amendment

Pub. L. 112–230, §1, Dec. 28, 2012, 126 Stat. 1616, provided that: "This Act [enacting section 7326 of this title, amending sections 1501, 1502, 1506, 7322, and 7325 of this title, repealing former section 7326 of this title, and enacting provisions set out as notes under sections 1501 and 7326 of this title] may be cited as the 'Hatch Act Modernization Act of 2012'."

Pub. L. 112–199, §1, Nov. 27, 2012, 126 Stat. 1465, provided that: "This Act [enacting section 2304 of this title, amending sections 1204, 1212, 1214, 1215, 1221, 2302, and 7703 of this title, sections 3 and 8D of the Inspector General Act of 1978, Pub. L. 95–452, formerly set out in the Appendix to this title, and section 133 of Title 6, Domestic Security, renumbering sections 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title and enacting provisions set out as notes under sections 1204, 2302, and 2304 of this title, section 3 of the Inspector General Act of 1978, and section 1116 of Title 31, Money and Finance] may be cited as the 'Whistleblower Protection Enhancement Act of 2012'."

Pub. L. 112–166, §1, Aug. 10, 2012, 126 Stat. 1283, provided that: "This Act [see Tables for classification] may be cited as the 'Presidential Appointment Efficiency and Streamlining Act of 2011'."

Short Title of 2010 Amendment

Pub. L. 111–292, §1, Dec. 9, 2010, 124 Stat. 3165, provided that: "This Act [enacting chapter 65 and section 5711 of this title and provisions set out as a note under section 6501 of this title and amending provisions set out as a note and provisions listed in a table under section 6120 of this title] may be cited as the 'Telework Enhancement Act of 2010'."

Pub. L. 111–282, §1(a), Oct. 15, 2010, 124 Stat. 3033, provided that: "This Act [enacting chapter 102 of this title, amending sections 5102, 5541, 6304, and 6324 of this title, enacting provisions set out as notes under sections 5102 and 10201 of this title, and amending provisions set out as notes under section 3056A of Title 18, Crimes and Criminal Procedure] may be cited as the 'United States Secret Service Uniformed Division Modernization Act of 2010'."

Pub. L. 111–178, §1, June 9, 2010, 124 Stat. 1262, provided that: "This Act [enacting section 5724d of this title and provisions set out as a note under section 5724d of this title] may be cited as the 'Special Agent Samuel Hicks Families of Fallen Heroes Act'."

Short Title of 2009 Amendment

Pub. L. 111–83, title V, §564(a), Oct. 28, 2009, 123 Stat. 2184, provided that: "This section [amending section 552 of this title] may be cited as the 'OPEN FOIA Act of 2009'."

Pub. L. 111–31, div. B, §100(a), June 22, 2009, 123 Stat. 1852, provided that: "This division [enacting sections 8432d and 8480 of this title, amending sections 8432, 8433, 8437 to 8439, and 8477 of this title and section 1450 of Title 10, Armed Forces, and enacting provisions set out as notes under this section and section 8439 of this title] may be cited as the 'Federal Retirement Reform Act of 2009'."

Pub. L. 111–31, div. B, title I, §101, June 22, 2009, 123 Stat. 1853, provided that: "This title [enacting sections 8432d and 8480 of this title, amending sections 8432, 8433, 8437 to 8439, and 8477 of this title, and enacting provisions set out as a note under section 8439 of this title] may be cited as the 'Thrift Savings Plan Enhancement Act of 2009'."

Short Title of 2008 Amendment

Pub. L. 110–372, §1, Oct. 8, 2008, 122 Stat. 4043, provided that: "This Act [amending sections 3104, 3324, 3325, 5108, 5304, 5307 and 5376 of this title and enacting provisions set out as notes under sections 5307 and 5376 of this title] may be cited as the 'Senior Professional Performance Act of 2008'."

Pub. L. 110–290, §1, July 30, 2008, 122 Stat. 2914, provided that: "This Act [amending section 596 of this title] may be cited as the 'Regulatory Improvement Act of 2007'."

Short Title of 2007 Amendment

Pub. L. 110–175, §1, Dec. 31, 2007, 121 Stat. 2524, provided that: "This Act [amending section 552 of this title and enacting provisions set out as notes under section 552 of this title] may be cited as the 'Openness Promotes Effectiveness in our National Government Act of 2007' or the 'OPEN Government Act of 2007'."

Short Title of 2006 Amendment

Pub. L. 109–435, title VIII, §801, Dec. 20, 2006, 120 Stat. 3249, provided that: "This title [enacting section 8909a of this title, amending sections 8334, 8348, and 8906 of this title, enacting provisions set out as notes under sections 8334, 8348, and 8909a of this title, and repealing provisions set out as a note preceding section 2001 of Title 39, Postal Service] may be cited as the 'Postal Civil Service Retirement and Health Benefits Funding Amendments of 2006'."

Pub. L. 109–356, §1(a), Oct. 16, 2006, 120 Stat. 2019, provided that: "This Act [amending sections 5102, 8951, 8981, and 9001 of this title, sections 202, 214, 215b, 216, 216a, 221, 321, and 1813 of Title 12, Banks and Banking, and section 57a of Title 15, Commerce and Trade] may be cited as the '2005 District of Columbia Omnibus Authorization Act'."

Short Title of 2004 Amendments

Pub. L. 108–496, §1, Dec. 23, 2004, 118 Stat. 4001, provided that: "This Act [enacting chapters 89A and 89B of this title, amending section 1005 of Title 39, Postal Service, and enacting provisions set out as a note under section 8951 of this title] may be cited as the 'Federal Employee Dental and Vision Benefits Enhancement Act of 2004'."

Pub. L. 108–469, §1(a), Dec. 21, 2004, 118 Stat. 3891, provided that: "This Act [amending sections 8351, 8432, 8433, 8439, and 8440a to 8440e of this title and enacting provisions set out as a note under section 8350 of this title] may be cited as the 'Thrift Savings Plan Open Elections Act of 2004'."

Pub. L. 108–411, §1(a), Oct. 30, 2004, 118 Stat. 2305, provided that: "This Act [enacting sections 4121, 5550b, 5753, and 5754 of this title, amending sections 4103, 4505a, 5302, 5304, 5305, 5314, 5334, 5361, 5363, 5365, 5377, and 6303 of this title, repealing former sections 5753 and 5754 of this title, enacting provisions set out as notes under sections 5304, 5363, 5550b, 5753, and 6303 of this title, and amending provisions set out as a note under section 5305 of this title] may be cited as the 'Federal Workforce Flexibility Act of 2004'."

Pub. L. 108–401, §1, Oct. 30, 2004, 118 Stat. 2255, provided that: "This Act [amending sections 591, 594, and 596 of this title] may be cited as the 'Federal Regulatory Improvement Act of 2004'."

Pub. L. 108–201, §1, Feb. 24, 2004, 118 Stat. 461, provided that: "This Act [enacting chapter 98 of this title, amending section 2473 of Title 42, The Public Health and Welfare, and enacting provisions set out as a note under section 2473 of Title 42] may be cited as the 'NASA Flexibility Act of 2004'."

Short Title of 2003 Amendments

Pub. L. 108–196, §1, Dec. 19, 2003, 117 Stat. 2896, provided that: "This Act [enacting provisions set out as a note under section 3371 of this title] may be cited as the 'Federal Law Enforcement Pay and Benefits Parity Act of 2003'."

Pub. L. 108–123, §1, Nov. 11, 2003, 117 Stat. 1345, provided that: "This Act [amending section 5379 of this title] may be cited as the 'Federal Employee Student Loan Assistance Act'."

Pub. L. 108–44, §1, July 3, 2003, 117 Stat. 842, provided that: "This Act [enacting section 3114 of this title] may be cited as the 'Accountant, Compliance, and Enforcement Staffing Act of 2003'."

Pub. L. 108–18, §1, Apr. 23, 2003, 117 Stat. 624, provided that: "This Act [amending sections 8331, 8334, and 8348 of this title, enacting provisions set out as notes under sections 8334 and 8348 of this title and preceding section 2001 of Title 39, Postal Service, and repealing provisions set out as a note under section 8348 of this title] may be cited as the 'Postal Civil Service Retirement System Funding Reform Act of 2003'."

Short Title of 2002 Amendment

Pub. L. 107–296, title XIII, §1301, Nov. 25, 2002, 116 Stat. 2287, provided that: "This title [enacting chapter 14 of this title, subchapter II of chapter 35 of this title, and section 3319 of this title, amending sections 1103, 3111, 3304, 3393, 3592 to 3594, 4107, 5307, 7701, 7905, 8336, 8339, 8414, and 8421 of this title, sections 1115 and 1116 of Title 31, Money and Finance, and section 1902 of Title 50, War and National Defense, repealing section 3393a of this title, enacting provisions set out as notes under sections 1103, 1401, 3301, 3521, 3592, 3593, and 8336 of this title, and repealing provisions set out as notes under sections 8336 and 8414 of this title] may be cited as the 'Chief Human Capital Officers Act of 2002'."

Short Title of 2001 Amendment

Pub. L. 107–27, §1, Aug. 20, 2001, 115 Stat. 207, provided that: "This Act [amending sections 8335 and 8425 of this title] may be cited as the 'Federal Firefighters Retirement Age Fairness Act'."

Prohibition Against Construction That Would Render Applicable to the Department of Transportation Provisions of Law Inconsistent With Pub. L. 89–670 Creating the Department of Transportation

Pub. L. 89–670, §10(c), Oct. 15, 1966, 80 Stat. 948, which provided that the amendment made to this section by section 10(b) of Pub. L. 89–670 was not to be construed to make applicable to the Department any provision of law inconsistent with Pub. L. 89–670, was repealed by Pub. L. 104–287, §7(5), Oct. 11, 1996, 110 Stat. 3400.

§102. Military departments

The military departments are:

The Department of the Army.

The Department of the Navy.

The Department of the Air Force.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378.)

Historical and Revision Notes

The section is supplied to avoid the necessity for defining "military departments" each time it is used in this title. See section 101(7) of title 10.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378.)

Historical and Revision Notes

The section is supplied to avoid the necessity for defining "Government corporation" and "Government controlled corporation" each time it is used in this title.

§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 Regulatory Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and

(2) the Government Accountability Office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 91–375, §6(c)(2), Aug. 12, 1970, 84 Stat. 775; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, §604(b), Dec. 20, 2006, 120 Stat. 3241.)

Historical and Revision Notes

The section is supplied to avoid the necessity for defining "independent establishment" each time it is used in this title.

Certain agencies are not independent establishments under the definition since they are constituent agencies or parts of an independent establishment. However, these agencies would continue to be subject to the provisions of this title applicable to the independent establishment of which they are a constituent or part. Also, the definition does not expand or abridge any rights or authority possessed by these agencies as no substantive changes are intended, see section 7(a) of the bill.

Editorial Notes

Amendments

2006—Par. (1). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission".

2004—Par. (2). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

1970—Par. (1). Pub. L. 91–375 inserted "(other than the United States Postal Service or the Postal Rate Commission)" after "executive branch".

Statutory Notes and Related Subsidiaries

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

§105. Executive agency

For the purpose of this title, "Executive agency" means an Executive department, a Government corporation, and an independent establishment.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379.)

Historical and Revision Notes

The section is supplied to avoid the necessity for defining "Executive agency" each time it is used in this title.

CHAPTER 3—POWERS

SUBCHAPTER I—GENERAL PROVISIONS

        

SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES

        

SUBCHAPTER III—FEDERAL GOVERNMENT SERVICE DELIVERY

        

Editorial Notes

Amendments

2025—Pub. L. 118–231, §2(b), Jan. 4, 2025, 138 Stat. 2831, added item for subchapter III and items 321 to 324.

2019—Pub. L. 115–435, title I, §101(b), Jan. 14, 2019, 132 Stat. 5532, added headings for subchapters I and II and items 311 to 315.

2011—Pub. L. 111–352, §13(a), Jan. 4, 2011, 124 Stat. 3882, added item 306 and struck out former item 306 "Strategic plans".

1993—Pub. L. 103–62, §11(a), Aug. 3, 1993, 107 Stat. 295, added item 306.

¹ So in original. Probably should be followed by a period.

SUBCHAPTER I—GENERAL PROVISIONS

Editorial Notes

Amendments

2019—Pub. L. 115–435, title I, §101(a)(1), Jan. 14, 2019, 132 Stat. 5529, inserted subchapter heading.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 22.	R.S. §161. Aug. 12, 1958, Pub. L. 85–619, 72 Stat. 547.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. The words "not inconsistent with law" are omitted as surplusage as a regulation which is inconsistent with law is invalid.

The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which provided:

"All laws, orders, regulations, and other actions relating to the National Military Establishment, the Departments of the Army, the Navy, or the Air Force, or to any officer or activity of such establishment or such departments, shall, except to the extent inconsistent with the provisions of this Act, have the same effect as if this Act had not been enacted; but, after the effective date of this Act, any such law, order, regulation, or other action which vested functions in or otherwise related to any officer, department, or establishment, shall be deemed to have vested such function in or relate to the officer, or department, executive or military, succeeding the officer, department, or establishment in which such function was vested. For purposes of this subsection the Department of Defense shall be deemed the department succeeding the National Military Establishment, and the military departments of Army, Navy, and Air Force shall be deemed the departments succeeding the Executive Departments of Army, Navy, and Air Force."

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Statutory Notes and Related Subsidiaries

Working Dog Health and Welfare

Pub. L. 118–195, Dec. 23, 2024, 138 Stat. 2669, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Working Dog Health and Welfare Act of 2023'.

"SEC. 2. IMPLEMENTATION OF WORKING DOG RECOMMENDATIONS.

"(a) Definitions.—In this section:

"(1) Agency.—The term 'agency' has the meaning given the term in section 551 of title 5, United States Code.

"(2) Working dog.—The term 'working dog' means a dog that has received specialized training in order to perform a particular productive function.

"(3) Working dog program.—The term 'working dog program' means a program, the operations of which include the employment of working dogs.

"(4) Working dog recommendations.—The term 'working dog recommendations' means the recommendations included in the report of the Government Accountability Office entitled 'Working Dogs: Federal Agencies Need to Better Address Health and Welfare', as published in October 2022.

"(b) Implementation.—

"(1) In general.—Not later than 180 days after the date of enactment of this Act [Dec. 23, 2024], the head of each agency that manages a working dog program shall implement the working dog recommendations.

"(2) Contractors.—Not later than 180 days after the date of enactment of this Act, a contractor that manages a working dog program on behalf of an agency shall implement the working dog recommendations.

"(3) Report.—Not later than 60 days after the date on which the head of an agency or a contractor that manages a working dog program on behalf of an agency implements the working dog recommendations under this subsection, the head of the agency shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives a report on the explicit steps the agency or contractor has taken to complete the implementation.

"(c) Foreign Partners.—Not later than 180 days after the date of enactment of this Act [Dec. 23, 2024], the Secretary of State shall take appropriate steps to ensure that donations of working dogs provided to foreign partners by the Department of State are executed and monitored according to the working dog recommendations.

"(d) New Working Dog Programs.—With respect to an agency that establishes a working dog program, or enters into a contract for the establishment of a working dog program, after the date of enactment of this Act, the head of the agency shall ensure that the working dog program implements the working dog recommendations.

"(e) No Additional Funds.—No additional funds are authorized to be appropriated for the purpose of carrying out this Act."

Federal Cybersecurity Workforce Assessment

Pub. L. 114–113, div. N, title III, Dec. 18, 2015, 129 Stat. 2975, as amended by Pub. L. 116–283, div. H, title XCIV, §9401(g)(4)(A), Jan. 1, 2021, 134 Stat. 4809, provided that:

"SEC. 301. SHORT TITLE.

"This title may be cited as the 'Federal Cybersecurity Workforce Assessment Act of 2015'.

"SEC. 302. DEFINITIONS.

"In this title:

"(1) Appropriate congressional committees.—The term 'appropriate congressional committees' means—

"(A) the Committee on Armed Services of the Senate;

"(B) the Committee on Homeland Security and Governmental Affairs of the Senate;

"(C) the Select Committee on Intelligence of the Senate;

"(D) the Committee on Commerce, Science, and Transportation of the Senate;

"(E) the Committee on Armed Services of the House of Representatives;

"(F) the Committee on Homeland Security of the House of Representatives;

"(G) the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives; and

"(H) the Permanent Select Committee on Intelligence of the House of Representatives.

"(2) Director.—The term 'Director' means the Director of the Office of Personnel Management.

"(3) National initiative for cybersecurity education.—The term 'National Initiative for Cybersecurity Education' means the initiative under the national cybersecurity awareness and education program, as authorized under section 303 of the Cybersecurity Enhancement Act of 2014 (Public Law 113–274) [15 U.S.C. 7443].

"(4) Work roles.—The term 'work roles' means a specialized set of tasks and functions requiring specific knowledge, skills, and abilities.

"SEC. 303. NATIONAL CYBERSECURITY WORKFORCE MEASUREMENT INITIATIVE.

"(a) In General.—The head of each Federal agency shall—

"(1) identify all positions within the agency that require the performance of cybersecurity or other cyber-related functions; and

"(2) assign the corresponding employment code under the National Initiative for Cybersecurity Education in accordance with subsection (b).

"(b) Employment Codes.—

"(1) Procedures.—

"(A) Coding structure.—Not later than 180 days after the date of the enactment of this Act [Dec. 18, 2015], the Director, in coordination with the National Institute of Standards and Technology, shall develop a coding structure under the National Initiative for Cybersecurity Education.

"(B) Identification of civilian cyber personnel.—Not later than 9 months after the date of enactment of this Act, the Director, in coordination with the Secretary of Homeland Security, the Director of the National Institute of Standards and Technology, and the Director of National Intelligence, shall establish procedures to implement the National Initiative for Cybersecurity Education coding structure to identify all Federal civilian positions that require the performance of information technology, cybersecurity, or other cyber-related functions.

"(C) Identification of noncivilian cyber personnel.—Not later than 18 months after the date of enactment of this Act, the Secretary of Defense shall establish procedures to implement the National Initiative for Cybersecurity Education's coding structure to identify all Federal noncivilian positions that require the performance of information technology, cybersecurity, or other cyber-related functions.

"(D) Baseline assessment of existing cybersecurity workforce.—Not later than 3 months after the date on which the procedures are developed under subparagraphs (B) and (C), respectively, the head of each Federal agency shall submit to the appropriate congressional committees of jurisdiction a report that identifies—

"(i) the percentage of personnel with information technology, cybersecurity, or other cyber-related job functions who currently hold the appropriate industry-recognized certifications as identified under the National Initiative for Cybersecurity Education;

"(ii) the level of preparedness of other civilian and noncivilian cyber personnel without existing credentials to take certification exams; and

"(iii) a strategy for mitigating any gaps identified in clause (i) or (ii) with the appropriate training and certification for existing personnel.

"(E) Procedures for assigning codes.—Not later than 3 months after the date on which the procedures are developed under subparagraphs (B) and (C), respectively, the head of each Federal agency shall establish procedures—

"(i) to identify all encumbered and vacant positions with information technology, cybersecurity, or other cyber-related functions (as defined in the National Initiative for Cybersecurity Education's coding structure); and

"(ii) to assign the appropriate employment code to each such position, using agreed standards and definitions.

"(2) Code assignments.—Not later than 1 year after the date after the procedures are established under paragraph (1)(E), the head of each Federal agency shall complete assignment of the appropriate employment code to each position within the agency with information technology, cybersecurity, or other cyber-related functions.

"(c) Progress Report.—Not later than 180 days after the date of enactment of this Act, the Director shall submit a progress report on the implementation of this section to the appropriate congressional committees.

"SEC. 304. IDENTIFICATION OF CYBER-RELATED WORK ROLES OF CRITICAL NEED.

"(a) In General.—Beginning not later than 1 year after the date on which the employment codes are assigned to employees pursuant to section 303(b)(2), and annually thereafter through 2022, the head of each Federal agency, in consultation with the Director, the Director of the National Institute of Standards and Technology, and the Secretary of Homeland Security, shall—

"(1) identify information technology, cybersecurity, or other cyber-related work roles of critical need in the agency's workforce; and

"(2) submit a report to the Director that—

"(A) describes the information technology, cybersecurity, or other cyber-related roles identified under paragraph (1); and

"(B) substantiates the critical need designations.

"(b) Guidance.—The Director shall provide Federal agencies with timely guidance for identifying information technology, cybersecurity, or other cyber-related roles of critical need, including—

"(1) current information technology, cybersecurity, and other cyber-related roles with acute skill shortages; and

"(2) information technology, cybersecurity, or other cyber-related roles with emerging skill shortages.

"(c) Cybersecurity Needs Report.—Not later than 2 years after the date of the enactment of this Act [Dec. 18, 2015], the Director, in consultation with the Secretary of Homeland Security, shall—

"(1) identify critical needs for information technology, cybersecurity, or other cyber-related workforce across all Federal agencies; and

"(2) submit a progress report on the implementation of this section to the appropriate congressional committees.

"SEC. 305. GOVERNMENT ACCOUNTABILITY OFFICE STATUS REPORTS.

"The Comptroller General of the United States shall—

"(1) analyze and monitor the implementation of sections 303 and 304; and

"(2) not later than 3 years after the date of the enactment of this Act [Dec. 18, 2015], submit a report to the appropriate congressional committees that describes the status of such implementation."

Plain Writing in Government Documents

Pub. L. 111–274, Oct. 13, 2010, 124 Stat. 2861, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Plain Writing Act of 2010'.

"SEC. 2. PURPOSE.

"The purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use.

"SEC. 3. DEFINITIONS.

"In this Act:

"(1) Agency.—The term 'agency' means an Executive agency, as defined under section 105 of title 5, United States Code.

"(2) Covered document.—The term 'covered document'—

"(A) means any document that—

"(i) is necessary for obtaining any Federal Government benefit or service or filing taxes;

"(ii) provides information about any Federal Government benefit or service; or

"(iii) explains to the public how to comply with a requirement the Federal Government administers or enforces;

"(B) includes (whether in paper or electronic form) a letter, publication, form, notice, or instruction; and

"(C) does not include a regulation.

"(3) Plain writing.—The term 'plain writing' means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.

"SEC. 4. RESPONSIBILITIES OF FEDERAL AGENCIES.

"(a) Preparation for Implementation of Plain Writing Requirements.—

"(1) In general.—Not later than 9 months after the date of enactment of this Act [Oct. 13, 2010], the head of each agency shall—

"(A) designate 1 or more senior officials within the agency to oversee the agency implementation of this Act;

"(B) communicate the requirements of this Act to the employees of the agency;

"(C) train employees of the agency in plain writing;

"(D) establish a process for overseeing the ongoing compliance of the agency with the requirements of this Act;

"(E) create and maintain a plain writing section of the agency's website as required under paragraph (2) that is accessible from the homepage of the agency's website; and

"(F) designate 1 or more agency points-of-contact to receive and respond to public input on—

"(i) agency implementation of this Act; and

"(ii) the agency reports required under section 5.

"(2) Website.—The plain writing section described under paragraph (1)(E) shall—

"(A) inform the public of agency compliance with the requirements of this Act; and

"(B) provide a mechanism for the agency to receive and respond to public input on—

"(i) agency implementation of this Act; and

"(ii) the agency reports required under section 5.

"(b) Requirement to Use Plain Writing in New Documents.—Beginning not later than 1 year after the date of enactment of this Act, each agency shall use plain writing in every covered document of the agency that the agency issues or substantially revises.

"(c) Guidance.—

"(1) In general.—Not later than 6 months after the date of enactment of this Act, the Director of the Office of Management and Budget shall develop and issue guidance on implementing the requirements of this section. The Director may designate a lead agency, and may use interagency working groups to assist in developing and issuing the guidance.

"(2) Interim guidance.—Before the issuance of guidance under paragraph (1), agencies may follow the guidance of—

"(A) the writing guidelines developed by the Plain Language Action and Information Network; or

"(B) guidance provided by the head of the agency that is consistent with the guidelines referred to in subparagraph (A).

"SEC. 5. REPORTS TO CONGRESS.

"(a) Initial Report.—Not later than 9 months after the date of enactment of this Act [Oct. 13, 2010], the head of each agency shall publish on the plain writing section of the agency's website a report that describes the agency plan for compliance with the requirements of this Act.

"(b) Annual Compliance Report.—Not later than 18 months after the date of enactment of this Act, and annually thereafter, the head of each agency shall publish on the plain writing section of the agency's website a report on agency compliance with the requirements of this Act.

"SEC. 6. JUDICIAL REVIEW AND ENFORCEABILITY.

"(a) Judicial Review.—There shall be no judicial review of compliance or noncompliance with any provision of this Act.

"(b) Enforceability.—No provision of this Act shall be construed to create any right or benefit, substantive or procedural, enforceable by any administrative or judicial action.

"SEC. 7. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR THIS ACT.

"The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010 [2 U.S.C. 931 et seq.], shall be determined by reference to the latest statement titled 'Budgetary Effects of PAYGO Legislation' for this Act, submitted for printing in the Congressional Record by the Chairman of the House Budget Committee, provided that such statement has been submitted prior to the vote on passage."

Support for Youth Organizations

Pub. L. 109–163, div. A, title X, §1058(a), (b), Jan. 6, 2006, 119 Stat. 3442, provided that:

"(a) Youth Organization Defined.—In this section, the term 'youth organization' means—

"(1) the Boy Scouts of America;

"(2) the Girl Scouts of the United States of America;

"(3) the Boys Clubs of America;

"(4) the Girls Clubs of America;

"(5) the Young Men's Christian Association;

"(6) the Young Women's Christian Association;

"(7) the Civil Air Patrol;

"(8) the United States Olympic Committee [now United States Olympic and Paralympic Committee];

"(9) the Special Olympics;

"(10) Campfire USA;

"(11) the Young Marines;

"(12) the Naval Sea Cadets Corps;

"(13) 4–H Clubs;

"(14) the Police Athletic League;

"(15) Big Brothers—Big Sisters of America;

"(16) National Guard Challenge Program; and

"(17) any other organization designated by the President as an organization that is primarily intended to—

"(A) serve individuals under the age of 21 years;

"(B) provide training in citizenship, leadership, physical fitness, service to community, and teamwork; and

"(C) promote the development of character and ethical and moral values.

"(b) Support for Youth Organizations.—

"(1) Continuation of support.—No Federal law (including any rule, regulation, directive, instruction, or order) shall be construed to limit any Federal agency from providing any form of support for a youth organization (including the Boy Scouts of America or any group officially affiliated with the Boy Scouts of America) that would result in that Federal agency providing less support to that youth organization (or any similar organization chartered under the chapter of title 36, United States Code, relating to that youth organization) than was provided during the preceding fiscal year to that youth organization. This paragraph shall be subject to the availability of appropriations.

"(2) Youth organizations that cease to exist.—Paragraph (1) shall not apply to any youth organization that ceases to exist.

"(3) Waivers.—The head of a Federal agency may waive the application of paragraph (1) to a youth organization with respect to each conviction or investigation described under subparagraph (A) or (B) for a period of not more than two fiscal years if—

"(A) any senior officer (including any member of the board of directors) of the youth organization is convicted of a criminal offense relating to the official duties of that officer or the youth organization is convicted of a criminal offense; or

"(B) the youth organization is the subject of a criminal investigation relating to fraudulent use or waste of Federal funds.

"(4) Types of support.—Support described in paragraph (1) includes—

"(A) authorizing a youth organization to hold meetings, camping events, or other activities on Federal property;

"(B) hosting any official event of a youth organization;

"(C) loaning equipment for the use of a youth organization; and

"(D) providing personnel services and logistical support for a youth organization."

Pub. L. 109–148, div. A, title VIII, §8126(b), Dec. 30, 2005, 119 Stat. 2728, which contained provisions substantially similar to those in Pub. L. 109–163, §1058(a), (b), set out above, was repealed by Pub. L. 109–364, div. A, title X, §1071(f)(3), Oct. 17, 2006, 120 Stat. 2402.

Minimum Standards for Birth Certificates

Pub. L. 108–458, title VII, §7211(a)–(d), Dec. 17, 2004, 118 Stat. 3825–3827, provided that:

"(a) Definition.—In this section [enacting this note and repealing provisions set out as a note below], the term 'birth certificate' means a certificate of birth—

"(1) for an individual (regardless of where born)—

"(A) who is a citizen or national of the United States at birth; and

"(B) whose birth is registered in the United States; and

"(2) that—

"(A) is issued by a Federal, State, or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record; or

"(B) is an authenticated copy, issued by a Federal, State, or local government agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.

"(b) Standards for Acceptance by Federal Agencies.—

"(1) In general.—Beginning 2 years after the promulgation of minimum standards under paragraph (3), no Federal agency may accept a birth certificate for any official purpose unless the certificate conforms to such standards.

"(2) State certification.—

"(A) In general.—Each State shall certify to the Secretary of Health and Human Services that the State is in compliance with the requirements of this section.

"(B) Frequency.—Certifications under subparagraph (A) shall be made at such intervals and in such a manner as the Secretary of Health and Human Services, with the concurrence of the Secretary of Homeland Security and the Commissioner of Social Security, may prescribe by regulation.

"(C) Compliance.—Each State shall ensure that units of local government and other authorized custodians of records in the State comply with this section.

"(D) Audits.—The Secretary of Health and Human Services may conduct periodic audits of each State's compliance with the requirements of this section.

"(3) Minimum standards.—Not later than 1 year after the date of enactment of this Act [Dec. 17, 2004], the Secretary of Health and Human Services shall by regulation establish minimum standards for birth certificates for use by Federal agencies for official purposes that—

"(A) at a minimum, shall require certification of the birth certificate by the State or local government custodian of record that issued the certificate, and shall require the use of safety paper or an alternative, equally secure medium, the seal of the issuing custodian of record, and other features designed to prevent tampering, counterfeiting, or otherwise duplicating the birth certificate for fraudulent purposes;

"(B) shall establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not the applicant;

"(C) shall establish standards for the processing of birth certificate applications to prevent fraud;

"(D) may not require a single design to which birth certificates issued by all States must conform; and

"(E) shall accommodate the differences between the States in the manner and form in which birth records are stored and birth certificates are produced from such records.

"(4) Consultation with government agencies.—In promulgating the standards required under paragraph (3), the Secretary of Health and Human Services shall consult with—

"(A) the Secretary of Homeland Security;

"(B) the Commissioner of Social Security;

"(C) State vital statistics offices; and

"(D) other appropriate Federal agencies.

"(5) Extension of effective date.—The Secretary of Health and Human Services may extend the date specified under paragraph (1) for up to 2 years for birth certificates issued by a State if the Secretary determines that the State made reasonable efforts to comply with the date under paragraph (1) but was unable to do so.

"(c) Grants to States.—

"(1) Assistance in meeting federal standards.—

"(A) In general.—Beginning on the date a final regulation is promulgated under subsection (b)(3), the Secretary of Health and Human Services shall award grants to States to assist them in conforming to the minimum standards for birth certificates set forth in the regulation.

"(B) Allocation of grants.—The Secretary shall award grants to States under this paragraph based on the proportion that the estimated average annual number of birth certificates issued by a State applying for a grant bears to the estimated average annual number of birth certificates issued by all States.

"(C) Minimum allocation.—Notwithstanding subparagraph (B), each State shall receive not less than 0.5 percent of the grant funds made available under this paragraph.

"(2) Assistance in matching birth and death records.—

"(A) In general.—The Secretary of Health and Human Services, in coordination with the Commissioner of Social Security and other appropriate Federal agencies, shall award grants to States, under criteria established by the Secretary, to assist States in—

"(i) computerizing their birth and death records;

"(ii) developing the capability to match birth and death records within each State and among the States; and

"(iii) noting the fact of death on the birth certificates of deceased persons.

"(B) Allocation of grants.—The Secretary shall award grants to qualifying States under this paragraph based on the proportion that the estimated annual average number of birth and death records created by a State applying for a grant bears to the estimated annual average number of birth and death records originated by all States.

"(C) Minimum allocation.—Notwithstanding subparagraph (B), each State shall receive not less than 0.5 percent of the grant funds made available under this paragraph.

"(d) Authorization of Appropriations.—There are authorized to be appropriated to the Secretary for each of the fiscal years 2005 through 2009 such sums as may be necessary to carry out this section."

Improvements in Identification-Related Documents

Pub. L. 104–208, div. C, title VI, §656, Sept. 30, 1996, 110 Stat. 3009–716, as amended by Pub. L. 106–69, title III, §355, Oct. 9, 1999, 113 Stat. 1027, which related to standards for acceptance of birth certificates by Federal agencies for any official purpose, required the Secretary of Health and Human Services to make grants to States for assistance in meeting Federal standards and in matching birth and death records and for demonstration projects, and required the Secretary to submit a report to the Congress on ways to reduce the fraudulent obtaining and use of birth certificates, was repealed by Pub. L. 108–458, title VII, §7211(e), Dec. 17, 2004, 118 Stat. 3827.

Modification or Cancellation of Certain License Agreements Granted to Government During World War II

Act Aug. 16, 1950, ch. 716, 64 Stat. 448, provided that: "Notwithstanding any other provision of law, the head of any department or other agency in the executive branch of the Government which subsequent to September 9, 1939, entered into any contract or agreement with the holder of any privately owned patent or any right thereunder whereby such holder granted to the United States, without payment of royalty or with reduction or limitation of royalty, any license under such patent or right, is authorized, upon application of the grantor of such license, to enter into such supplemental contract or agreement for the cancellation of the contract or agreement by which such license was granted as the head of such department or agency shall deem to be warranted by equities existing by reason of changes in circumstances occurring since the granting of such license."

Executive Documents

Equal Opportunity in Federal Employment

Establishment of equal employment opportunity programs by heads of Executive departments and agencies, see Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319 and Ex. Ord. No. 11478, Aug. 8, 1969, 34 F.R. 12985, set out as notes under section 2000e of Title 42, The Public Health and Welfare.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 94–183, §2(1), Dec. 31, 1975, 89 Stat. 1057.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 22a.	Aug. 2, 1946, ch. 744, §12, 60 Stat. 809.

Clause (2) of former section 22a is omitted because of the repeal of R.S. §3683 (31 U.S.C. 675) by the Act of Sept. 12, 1950, ch. 946, §301(76), 64 Stat. 843.

The word "agency" is substituted for "department" and defined to conform to the definition of "department" in section 18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.

In subsection (b), the words "In addition to the authority to delegate conferred by other law," are added for clarity and in recognition of the various reorganization plans which generally have transferred all functions of the departments and agencies to the heads thereof and have authorized them to delegate the functions to subordinates.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1975—Subsec. (b)(2). Pub. L. 94–183 substituted "3702" for "324".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 94–213, Feb. 13, 1976, 90 Stat. 179.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 93.	R.S. §183. Mar. 2, 1901, ch. 809, §3, 31 Stat. 951. Feb. 13, 1911, ch. 43, 36 Stat. 898.

The word "employee" is substituted for "officer or clerk" in view of the definition in section 2105. The words "Executive department" are substituted for "departments" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. So much as related to the Armed Forces is omitted as superseded by section 636 of title 14 and section 936(b) of title 10.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (formerly 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1976—Pub. L. 94–213 designated existing provisions as subsec. (a) and added subsec. (b).

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 94.	R.S. §184.
(b)	5 U.S.C. 96.	R.S. §186.

In subsection (a), the words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101. The word "thereof" is added to reflect the proper relationship between "department" and "bureau" as reflected in title IV of the Revised Statutes of 1878. The words "in any State, District, or Territory" are omitted as unnecessary. The word "individual" is substituted for "officer" as the definition of "officer" in section 2104 is narrower than the word "officer" in R.S. §184 which word includes "officers" as defined in section 2104 as well as notaries public who are not "officers" under section 2104, but are "officers" as that word is used in R.S. §184.

In subsection (a), the words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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 Virgin Islands Corporation;

(4) the Atomic Energy Commission;

(5) the Central Intelligence Agency;

(6) the Panama Canal Commission; or

(7) 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 380; Pub. L. 96–54, §2(a)(2), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–70, title III, §3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 97–468, title VI, §615(b)(1)(A), Jan. 14, 1983, 96 Stat. 2578.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 1085.	Oct. 28, 1949, ch. 782, §205, 63 Stat. 957.
(b), (c)	5 U.S.C. 1151.	Oct. 28, 1949, ch. 782, §1001, 63 Stat. 971.

Subsection (a) is based in part on former sections 1081 and 1082, which are carried into section 5102.

In subsection (a)(1), the exception of "a Government controlled corporation" is added to preserve the application of this section to "corporations wholly owned by the United States". This is necessary as the defined term "Executive agency" includes the defined term "Government corporation" and the latter includes both Government owned and controlled corporations. Thus the exclusion of Government controlled corporations, which are distinct from wholly owned corporations, operates to preserve the application of this section to wholly owned corporations. The exception for the Inland Waterways Corporation in former section 1082(13) is omitted on authority of the Act of July 19, 1963, Pub. L. 88–67, 77 Stat. 81. The exceptions for Production Credit Corporations and Federal Intermediate Credit Banks in former section 1082(18) and (19) are omitted as they are no longer "corporations wholly owned by the United States". Under the Farm Credit Act of 1956, 70 Stat. 659, the Production Credit Corporations were merged in the Federal Intermediate Credit Banks, and pursuant to that Act the Federal Intermediate Credit Banks have ceased to be corporations wholly owned by the United States.

In subsection (a)(7), the words "Panama Canal Company" are substituted for "Panama Railroad Company" on authority of the Act of Sept. 26, 1950, ch. 1049, §2(a)(2), 64 Stat. 1038.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1983—Subsec. (a)(3) to (8). Pub. L. 97–468 struck out par. (3), which excluded The Alaska Railroad, and redesignated pars. (4) to (8) as (3) to (7), respectively.

1979—Subsec. (a)(7). Pub. L. 96–70 substituted "Commission" for "Company".

Subsec. (b). Pub. L. 96–54 substituted "President" for "Director of the Bureau of the Budget".

Statutory Notes and Related Subsidiaries

Effective Date of 1983 Amendment

Amendment by Pub. L. 97–468 effective on date of transfer of Alaska Railroad to the State [Jan. 5, 1985], pursuant to section 1203 of Title 45, Railroads, see section 615(b) of Pub. L. 97–468.

Effective Date of 1979 Amendments

Amendment by Pub. L. 96–70 effective Oct. 1, 1979, see section 3304 of Pub. L. 96–70, set out as an Effective Date note under section 3601 of Title 22, Foreign Relations and Intercourse.

Pub. L. 96–54, §2(b), Aug. 14, 1979, 93 Stat. 385, provided that: "Except as otherwise expressly provided in subsection (a), the amendments made by subsection (a) [amending sections 305, 1308, 2101, 2105, 2106, 2108, 3102, 3132, 3302, 3305, 3315, 3317, 3324, 3326, 3503, 4102, 4109, 4111, 4112, 4701, 5102, 5108, 5311 to 5316, 5333 to 5335, 5347, 5504, 5514, 5516, 5521, 5545, 5550a, 5562, 5581, 5584, 5596, 5702, 5903, 5943, 6104, 6304, 6305, 6323, 6325, 7325, 7327, 7701, 7702, 8331, 8332, 8339, 8347, 8701, 8901, and 8906 of this title], shall take effect July 12, 1979, or the date of the enactment of this Act [Aug. 14, 1979], whichever is earlier."

Transfer of Functions

Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See also Transfer of Functions notes set out under those sections.

Dissolution of Virgin Islands Corporation

Virgin Islands Corporation established to have succession until June 30, 1969, unless sooner dissolved by Act of Congress, by act June 30, 1949, ch. 285, 63 Stat. 350, as amended (48 U.S.C. 1407 et seq.). Corporation terminated its program June 30, 1965, and dissolved July 1, 1966. Act June 30, 1949, was repealed by Pub. L. 97–357, title III, §308(e), Oct. 19, 1982, 96 Stat. 1710.

Executive Documents

Delegation of Functions

Functions of President under subsec. (b) of this section delegated to Director of Office of Management and Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R. 48143, set out as a note under section 301 of Title 3, The President.

§306. Agency strategic plans

(a) Not later than the first Monday in February of any year following the year in which the term of the President commences under section 101 of title 3, the head of each agency shall make available on the public website of the agency a strategic plan and notify the President and Congress of its availability. 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-oriented goals, for the major functions and operations of the agency;

(3) a description of how any goals and objectives contribute to the Federal Government priority goals required by section 1120(a) of title 31;

(4) a description of how the goals and objectives are to be achieved, including—

(A) a description of the operational processes, skills and technology, and the human, capital, information, and other resources required to achieve those goals and objectives; and

(B) a description of how the agency is working with other agencies to achieve its goals and objectives as well as relevant Federal Government priority goals;

(5) a description of how the goals and objectives incorporate views and suggestions obtained through congressional consultations required under subsection (d);

(6) a description of how the performance goals provided in the plan required by section 1115(a) of title 31, including the agency priority goals required by section 1120(b) of title 31, if applicable, contribute to the general goals and objectives in the strategic plan;

(7) 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;

(8) a description of the program evaluations used in establishing or revising general goals and objectives, with a schedule for future program evaluations to be conducted, and citations to relevant provisions of the plans required under section 312, as applicable; and

(9) with respect to the head of an agency required to develop a plan described in subsection (a) or (b) of section 312, an assessment of the coverage, quality, methods, effectiveness, and independence of the statistics, evaluation, research, and analysis efforts of the agency, including—

(A) a list of the activities and operations of the agency that are currently being evaluated and analyzed;

(B) the extent to which the evaluations, research, and analysis efforts and related activities of the agency support the needs of various divisions within the agency;

(C) the extent to which the evaluation research and analysis efforts and related activities of the agency address an appropriate balance between needs related to organizational learning, ongoing program management, performance management, strategic management, interagency and private sector coordination, internal and external oversight, and accountability;

(D) the extent to which the agency uses methods and combinations of methods that are appropriate to agency divisions and the corresponding research questions being addressed, including an appropriate combination of formative and summative evaluation research and analysis approaches;

(E) the extent to which evaluation and research capacity is present within the agency to include personnel and agency processes for planning and implementing evaluation activities, disseminating best practices and findings, and incorporating employee views and feedback; and

(F) the extent to which the agency has the capacity to assist agency staff and program offices to develop the capacity to use evaluation research and analysis approaches and data in the day-to-day operations.

(b) The strategic plan shall cover a period of not less than 4 years following the fiscal year in which the plan is submitted. As needed, the head of the agency may make adjustments to the strategic plan to reflect significant changes in the environment in which the agency is operating, with appropriate notification of Congress.

(c) The performance plan required by section 1115(b) 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 or making adjustments to a strategic plan, the agency shall consult periodically with the Congress, including majority and minority views from the appropriate authorizing, appropriations, and oversight committees, and shall solicit and consider the views and suggestions of those entities potentially affected by or interested in such a plan. The agency shall consult with the appropriate committees of Congress at least once every 2 years.

(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 Government Accountability Office, the United States Postal Service, and the Postal Regulatory Commission.

(Added Pub. L. 111–352, §2, Jan. 4, 2011, 124 Stat. 3866; amended Pub. L. 115–435, title I, §101(c), Jan. 14, 2019, 132 Stat. 5533; Pub. L. 118–190, §7(a), Dec. 23, 2024, 138 Stat. 2656.)

Editorial Notes

Prior Provisions

A prior section 306, added Pub. L. 103–62, §3, Aug. 3, 1993, 107 Stat. 286; amended Pub. L. 106–65, div. A, title IX, §902, Oct. 5, 1999, 113 Stat. 717; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, §604(b), Dec. 20, 2006, 120 Stat. 3241, related to strategic plans, prior to repeal by Pub. L. 111–352, §2, Jan. 4, 2011, 124 Stat. 3866.

Amendments

2024—Subsec. (a)(8). Pub. L. 118–190, §7(a)(1), inserted ", as applicable" after "section 312".

Subsec. (a)(9). Pub. L. 118–190, §7(a)(2), inserted "with respect to the head of an agency required to develop a plan described in subsection (a) or (b) of section 312," before "an assessment" in introductory provisions.

2019—Subsec. (a)(7). Pub. L. 115–435, §101(c)(1), substituted semicolon for "; and" at end.

Subsec. (a)(8). Pub. L. 115–435, §101(c)(2), inserted ", and citations to relevant provisions of the plans required under section 312; and" after "to be conducted" and struck out period at end.

Subsec. (a)(9). Pub. L. 115–435, §101(c)(3), added par. (9).

Statutory Notes and Related Subsidiaries

Effective Date of 2019 Amendment

Pub. L. 115–435, title IV, §403, Jan. 14, 2019, 132 Stat. 5557, provided that: "Except as otherwise provided, this Act [see Short Title of 2019 Amendment note set out under section 101 of this title], and the amendments made by this Act, shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 14, 2019]."

Construction of 2019 Amendment

Pub. L. 115–435, title IV, §401, Jan. 14, 2019, 132 Stat. 5556, provided that: "Nothing in this Act [see Short Title of 2019 Amendment note set out under section 101 of this title], or the amendments made by this Act, may be construed—

"(1) to require the disclosure of information or records that are exempt from disclosure under section 552 of title 5, United States Code (commonly known as the 'Freedom of Information Act');

"(2) to create or expand an exemption from disclosure under such section;

"(3) to override, limit, or otherwise affect intellectual property rights, including rights under titles 17 and 35, United States Code;

"(4) to affect the authority of a Federal agency regarding the use, disclosure, or licensing of—

"(A) confidential business information that could be withheld under section 552(b)(4) of title 5, United States Code; or

"(B) data assets restricted from disclosure under a contract or other binding, written agreement; or

"(5) to affect the independence, responsibilities, or work products of an Inspector General of any agency."

[For definition of "agency" as used in section 401 of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]

GAO Report

Pub. L. 115–435, title I, §101(d), Jan. 14, 2019, 132 Stat. 5533, provided that: "Not later than 2 years after the date on which each strategic plan required under section 306(a) of title 5, United States Code, is published, the Comptroller General of the United States shall submit to Congress a report that—

"(1) summarizes agency findings and highlights trends in the assessment conducted pursuant to subsection (a)(9) of section 306 of title 5, United States Code, as added by subsection (c); and

"(2) if appropriate, recommends actions to further improve agency capacity to use evaluation techniques and data to support evaluation efforts."

[For definitions of "agency" and "evaluation" as used in section 101(d) of Pub. L. 115–435, set out above, see section 101(e)(4) of Pub. L. 115–435, set out as a note under section 311 of this title.]

Biennial OMB Report

Pub. L. 115–435, title II, §202(g)(2), Jan. 14, 2019, 132 Stat. 5544, provided that: "Not later than 1 year after [the] date of the enactment of this Act [Jan. 14, 2019], and biennially thereafter, the Director of the Office of Management and Budget shall electronically publish a report on agency performance and compliance with this Act [see Short Title of 2019 Amendment note set out under section 101 of this title] and the amendments made by this Act."

[For definition of "agency" as used in section 202(g)(2) of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]

Use of Existing Resources

Pub. L. 115–435, title IV, §402, Jan. 14, 2019, 132 Stat. 5557, provided that: "To the extent practicable, the head of each agency shall use existing procedures and systems to carry out agency requirements and shall select existing employees for appointments under this Act [see Short Title of 2019 Amendment note set out under section 101 of this title] and the amendments made by this Act."

[For definition of "agency" as used in section 402 of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]

SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES

§311. Definitions

In this subchapter:

(1) Agency.—The term "agency" means an agency referred to under section 901(b) of title 31.

(2) Director.—The term "Director" means the Director of the Office of Management and Budget.

(3) Evaluation.—The term "evaluation" means an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency.

(4) Evidence.—The term "evidence" has the meaning given that term in section 3561 of title 44.

(5) State.—The term "State" means each of the several States, the District of Columbia, each territory or possession of the United States, and each federally recognized governing body of any Indian Tribe, band, nation, pueblo, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(6) Statistical activities; statistical agency or unit; statistical purpose.—The terms "statistical activities", "statistical agency or unit", and "statistical purpose" have the meanings given those terms in section 3561 of title 44.

(Added Pub. L. 115–435, title I, §101(a)(2), Jan. 14, 2019, 132 Stat. 5530.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

Evaluation and Personnel Standards

Pub. L. 115–435, title I, §101(e), Jan. 14, 2019, 132 Stat. 5534, provided that:

"(1) Requirement.—Not later than 1 year after the date of enactment of this Act [Jan. 14, 2019], the Director of the Office of Management and Budget, in consultation with any interagency council relating to evaluation, shall—

"(A) issue guidance for program evaluation for agencies consistent with widely accepted standards for evaluation; and

"(B) identify best practices for evaluation that would improve Federal program evaluation.

"(2) Guidance.—Not later than 90 days after the date on which the guidance under paragraph (1) is issued, the head of each agency shall oversee the implementation of such guidance.

"(3) OPM guidance.—Not later than 180 days after the date on which the guidance under paragraph (1) is issued, the Director of the Office of Personnel Management, in consultation with the Director of the Office of Management and Budget, shall—

"(A) identify key skills and competencies needed for program evaluation in an agency;

"(B) establish a new occupational series, or update and improve an existing occupational series, for program evaluation within an agency; and

"(C) establish a new career path for program evaluation within an agency.

"(4) Definitions.—In this Act [see Short Title of 2019 Amendment note set out under section 101 of this title]:

"(A) Agency.—Except as otherwise provided, the term 'agency' has the meaning given the term 'Executive agency' under section 105 [probably means section 105 of title 5, United States Code].

"(B) Evaluation.—The term 'evaluation' has the meaning given that term in section 311 of title 5, United States Code, as added by subsection (a)."

§312. Agency evidence-building plan

(a) Requirement.—The head of each agency shall include in the strategic plan required under section 306 a systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency. Such plan shall contain the following:

(1) A list of policy-relevant questions for which the agency intends to develop evidence to support policymaking.

(2) A list of data the agency intends to collect, use, or acquire to facilitate the use of evidence in policymaking.

(3) A list of methods and analytical approaches that may be used to develop evidence to support policymaking.

(4) A list of any challenges to developing evidence to support policymaking, including any statutory or other restrictions to accessing relevant data.

(5) A description of the steps the agency will take to accomplish paragraphs (1) and (2).

(6) Any other information as required by guidance issued by the Director.

(b) Evaluation Plan.—The head of each agency shall issue in conjunction with the performance plan required under section 1115(b) of title 31, an evaluation plan describing activities the agency plans to conduct pursuant to subsection (a) of this section during the fiscal year following the year in which the performance plan is submitted. Such plan shall—

(1) describe key questions for each significant evaluation study that the agency plans to begin in the next fiscal year;

(2) describe key information collections or acquisitions the agency plans to begin in the next fiscal year; and

(3) any ¹ other information included in guidance issued by the Director under subsection (a)(6).

(c) Consultation.—In developing the plan required under subsection (a), the head of an agency shall consult with stakeholders, including the public, agencies, State and local governments, and representatives of non-governmental researchers.

(Added Pub. L. 115–435, title I, §101(a)(2), Jan. 14, 2019, 132 Stat. 5530.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

¹ So in original.

§313. Evaluation Officers

(a) Establishment.—The head of each agency shall designate a senior employee of the agency as the Evaluation Officer of the agency.

(b) Qualifications.—The Evaluation Officer of an agency shall be appointed or designated without regard to political affiliation and based on demonstrated expertise in evaluation methodology and practices and appropriate expertise to the disciplines of the agency.

(c) Coordination.—The Evaluation Officer of an agency shall, to the extent practicable, coordinate activities with agency officials necessary to carry out the functions required under subsection (d).

(d) Functions.—The Evaluation Officer of each agency shall—

(1) continually assess the coverage, quality, methods, consistency, effectiveness, independence, and balance of the portfolio of evaluations, policy research, and ongoing evaluation activities of the agency;

(2) assess agency capacity to support the development and use of evaluation;

(3) establish and implement an agency evaluation policy; and

(4) coordinate, develop, and implement the plans required under section 312.

(Added Pub. L. 115–435, title I, §101(a)(2), Jan. 14, 2019, 132 Stat. 5531.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

§314. Statistical expertise

(a) In General.—The head of each agency shall designate the head of any statistical agency or unit within the agency, or in the case of an agency that does not have a statistical agency or unit, any senior agency official with appropriate expertise, as a statistical official to advise on statistical policy, techniques, and procedures. Agency officials engaged in statistical activities may consult with any such statistical official as necessary.

(b) Membership on Interagency Council on Statistical Policy.—Each statistical official designated under subsection (a) shall serve as a member of the Interagency Council on Statistical Policy established under section 3504(e)(8) of title 44.

(Added Pub. L. 115–435, title I, §101(a)(2), Jan. 14, 2019, 132 Stat. 5531.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

§315. Advisory Committee on Data for Evidence Building

(a) Establishment.—The Director, or the head of an agency designated by the Director, shall establish an Advisory Committee on Data for Evidence Building (in this section referred to as the "Advisory Committee") to review, analyze, and make recommendations on how to promote the use of Federal data for evidence building.

(b) Membership.—The members of the Advisory Committee shall consist of the Chief Statistician of the United States, who shall serve as the Chair of the Advisory Committee, and other members appointed by the Director as follows:

(1) One member who is an agency Chief Information Officer.

(2) One member who is an agency Chief Privacy Officer.

(3) One member who is an agency Chief Performance Officer.

(4) Three members who are agency Chief Data Officers.

(5) Three members who are agency Evaluation Officers.

(6) Three members who are members of the Interagency Council for Statistical Policy ¹ established under section 3504(e)(8) of title 44.

(7) At least 10 members who are representatives of State and local governments and nongovernmental stakeholders with expertise in government data policy, privacy, technology, transparency policy, evaluation and research methodologies, and other relevant subjects, of whom—

(A) at least one shall have expertise in transparency policy;

(B) at least one shall have expertise in privacy policy;

(C) at least one shall have expertise in statistical data use;

(D) at least one shall have expertise in information management;

(E) at least one shall have expertise in information technology; and

(F) at least one shall be from the research and evaluation community.

(c) Term of Service.—

(1) In general.—Each member of the Advisory Committee shall serve for a term of 2 years.

(2) Vacancy.—Any member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term. A vacancy in the Commission shall be filled in the manner in which the original appointment was made.

(d) Compensation.—Members of the Advisory Committee shall serve without compensation.

(e) Duties.—The Advisory Committee shall—

(1) assist the Director in carrying out the duties of the Director under part D of subchapter III of chapter 35 of title 44;

(2) evaluate and provide recommendations to the Director on how to facilitate data sharing, enable data linkage, and develop privacy enhancing techniques; and

(3) review the coordination of data sharing or availability for evidence building across all agencies.

(f) Reports.—The Advisory Committee shall submit to the Director and make publicly available an annual report on the activities and findings of the Advisory Committee.

(g) Termination.—The Advisory Committee shall terminate not later than two years after the date of the first meeting.

(Added Pub. L. 115–435, title I, §101(a)(2), Jan. 14, 2019, 132 Stat. 5531.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

¹ So in original. Probably should be "Interagency Council on Statistical Policy".

SUBCHAPTER III—FEDERAL GOVERNMENT SERVICE DELIVERY

§321. Definitions

In this subchapter:

(1) Agency.—The term "agency" has the meaning given that term in section 3502 of title 44.

(2) Director.—The term "Director" means the Director of the Office of Management and Budget.

(3) Government service delivery.—The term "Government service delivery" means any action by an agency related to providing a benefit or service to an individual, business, or organization (such as a grantee or State, local, or Tribal entity), including any such action of a contractor or nonprofit organization acting on behalf of the agency or administering a federally-funded program.

(4) Government service delivery channel.—The term "Government service delivery channel" means the format or medium of an interaction or transaction with the Federal Government, including in-person, through the mail, through a digital service, by telephone, through a contact center, on a website, through outreach and communication, and through collaboration with a third party, or through other ways in which an individual or entity significantly interacts with the Federal Government.

(5) High impact service provider.—The term "high impact service provider" means an agency program identified by the Director due to the scale and impact of the public-facing services of the program.

(Added Pub. L. 118–231, §2(a), Jan. 4, 2025, 138 Stat. 2829.)

§322. Federal Government service delivery

(a) ¹ Federal Government Service Delivery Lead.—The Director shall designate or appoint a senior official as the Federal Government Service Delivery Lead within the Office of Management and Budget whose responsibility is to coordinate governmentwide efforts to improve Government service delivery by agencies. The individual shall have the following duties and authorities:

(1) Facilitate and coordinate governmentwide efforts to improve Government service delivery provided by agencies, particularly with respect to high impact service providers.

(2) Carry out the duties and powers prescribed by the Director.

(3) Serve as the lead, governmentwide official responsible for supporting Government service delivery.

(4) Advise the Director concerning the improvement of Government service delivery provided by agencies.

(5) In consultation with each lead agency service delivery official and any other agency stakeholder as appropriate, develop and oversee the implementation of governmentwide Government service delivery standards, policies, and guidelines for services and programs provided by agencies, including standards, policies, and guidelines to—

(A) understand the needs of an individual, business, or organization interacting with an agency;

(B) solicit and consider voluntary feedback on the Government service delivery by the agency;

(C) assess Government service delivery processes;

(D) consider the factors of ease, efficiency, transparency, accessibility, fairness, burden (as defined in section 3502 of title 44), and duration, including wait and processing times, with respect to Government service delivery; and

(E) encourage the adoption of commercial products and services in accordance with section 3307 of title 41.

(6) Collect and report qualitative and quantitative information or data on Government service delivery through existing reporting mechanisms.

(7) Evaluate the quality of Government service delivery, including through the establishment of performance metrics developed using the standards, policies, and guidelines developed pursuant to paragraph (5) and the information or data collected and reported pursuant to paragraph (6).

(8) Engage with stakeholders to identify leading practices in service design and delivery that would improve Government service delivery across and within agencies.

(9) Ensure agency service delivery initiatives, including those related to the 21st Century Integrated Digital Experience Act (15 U.S.C. 3501 note; Public Law 115–336), are identified in agency congressional budget justifications.

(10) Coordinate with Office of Management and Budget stakeholders and other agency stakeholders on Government service delivery.

(11) In collaboration with relevant agency officials as appropriate, and in coordination with relevant Office of Management and Budget stakeholders, ensure that websites of agencies, including those associated with high impact service providers, are consistent with the objectives of this subchapter, the 21st Century Integrated Digital Experience Act, and any other applicable law.

(Added Pub. L. 118–231, §2(a), Jan. 4, 2025, 138 Stat. 2830.)

¹ No subsec. (b) has been enacted.

§323. Lead agency officials for Government service delivery

(a) Responsibility for Government Service Delivery.—The head of each agency shall be responsible for the Government service delivery of the agency which shall, at a minimum, include improving and enhancing Government services to better achieve the mission of the agency and build and maintain trust, transparency, and accountability.

(b) Lead Agency Service Delivery Officials.—Not later than one year after the date of the enactment of this subchapter, the head of each agency shall designate or appoint a senior official of the agency (who may be the deputy head of the agency) to implement this subchapter who shall have the following duties and authorities:

(1) Report directly to the head or deputy head of the agency.

(2) Possess sufficient operational authority to effectuate implementation of Government service delivery improvements within the agency, particularly with respect to high impact service providers.

(3) Coordinate and execute, as appropriate, under the direction of the head of the agency, and in collaboration with relevant agency officials as appropriate, efforts to improve and enhance the Government service delivery and Government service delivery channels of the agency.

(4) At the direction of the Federal Government Service Delivery Lead, submit an implementation plan for improving agency Government service delivery.

(5) Coordinate the collection and reporting of the data and information required pursuant to section 322 and use such data and information to improve Government service delivery.

(6) Facilitate collaboration among and between offices, and components within the agency and with other agencies as appropriate, in coordination with the Federal Government Service Delivery Lead, to improve and enhance Government service delivery.

(7) Assist with the implementation by the agency of the 21st Century Integrated Digital Experience Act (15 U.S.C. 3501 note; Public Law 115–336).

(8) Assist in the incorporation of the Government service delivery requirements established under this subchapter in agency plans (such as strategic plans or annual performance plans).

(Added Pub. L. 118–231, §2(a), Jan. 4, 2025, 138 Stat. 2831.)

Editorial Notes

References in Text

The date of the enactment of this subchapter, referred to in subsec. (b), is the date of enactment of Pub. L. 118–231, which was approved Jan. 4, 2025.

§324. Rule of construction

Nothing in this subchapter may be construed to diminish or reduce the authority of agency Chief Information Officers for information resources management provided in section 11315 of title 40 or those authorities to manage information resources to accomplish agency missions as established in section 3502 of title 44.

(Pub. L. 118–231, §2(a), Jan. 4, 2025, 138 Stat. 2831.)

CHAPTER 4—INSPECTORS GENERAL

        

§401. Definitions

In this chapter:

(1) Establishment.—The term "establishment" means the Department of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Housing and Urban Development, the Interior, Justice, Labor, State, Transportation, Homeland Security, the Treasury, or Veterans Affairs; the Agency for International Development, the Community Development Financial Institutions Fund, the Environmental Protection Agency, the Federal Communications Commission, the Federal Emergency Management Agency, the General Services Administration, the National Aeronautics and Space Administration, the Nuclear Regulatory Commission, the Office of Personnel Management, the Railroad Retirement Board, the Federal Deposit Insurance Corporation, the Small Business Administration, the Corporation for National and Community Service, the Social Security Administration, the Federal Housing Finance Agency, the Tennessee Valley Authority, the Export-Import Bank of the United States, the Commissions established under section 15301 of title 40, the National Security Agency, or the National Reconnaissance Office, as the case may be.

(2) Federal agency.—The term "Federal agency" means an agency as defined in section 552(f) of this title (including an establishment as defined in paragraph (1)), but shall not be construed to include the Government Accountability Office.

(3) Head of the establishment.—The term "head of the establishment" means the Secretary of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Housing and Urban Development, the Interior, Labor, State, Transportation, Homeland Security, the Treasury, or Veterans Affairs; the Attorney General; the Administrator of the Agency for International Development, Environmental Protection, General Services, National Aeronautics and Space, Small Business, or the Federal Emergency Management Agency; the Director of the Office of Personnel Management; the Chairman of the Nuclear Regulatory Commission, the Federal Communications Commission, or the Railroad Retirement Board; the Chief Executive Officer of the Corporation for National and Community Service; the Administrator of the Community Development Financial Institutions Fund; the Chairperson of the Federal Deposit Insurance Corporation; the Commissioner of Social Security, Social Security Administration; the Director of the Federal Housing Finance Agency; the Board of Directors of the Tennessee Valley Authority; the President of the Export-Import Bank of the United States; the Federal Cochairpersons of the Commissions established under section 15301 of title 40; the Director of the National Security Agency; or the Director of the National Reconnaissance Office; as the case may be.

(4) Inspector general.—The term "Inspector General" means the Inspector General of an establishment.

(5) Office.—The term "Office" means the Office of Inspector General of an establishment.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4207.)

Amendments Not Shown in Text

This section was derived from section 12 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 12 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §§5202(b), 5272(10), Dec. 23, 2022, 136 Stat. 3227, 3241, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4207, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 12 of Pub. L. 95–452 was amended as follows:

(1) in paragraph (3) [enacted by Pub. L. 117–286 as paragraph (4) of this section] by inserting "except as otherwise expressly provided," before "the term"; and

(2) by striking "and" at the end of paragraph (4), by substituting "; and" for the period at the end of paragraph (5), and by adding at the end the following:

"(6) the term 'appropriate congressional committees' means—

"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;

"(B) the Committee on Oversight and Reform of the House of Representatives; and

"(C) any other relevant congressional committee or subcommittee of jurisdiction."

Section 12 of Pub. L. 95–452 began with "the term" in paragraphs (1) to (5) and ended with semicolons in paragraphs (1) to (3), "; and" in paragraph (4), and a period in paragraph (5). As restated by Pub. L. 117–286, the text of paragraphs (1) to (5) began with "The term" and all ended with periods.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
401	5 U.S.C. App. (IGA §12)	Pub. L. 95–452, §12, formerly §11, Oct. 12, 1978, 92 Stat. 1109; Pub. L. 96–88, title V, §508(n)(3), (4), Oct. 17, 1979, 93 Stat. 695; Pub. L. 97–113, title VII, §705(a)(2), Dec. 29, 1981, 95 Stat. 1544; Pub. L. 97–252, title XI, §1117(a)(4), (5), Sept. 8, 1982, 96 Stat. 751; Pub. L. 99–93, title I, §150(a)(2), Aug. 16, 1985, 99 Stat. 427; Pub. L. 99–399, title IV, §412(a)(2), Aug. 27, 1986, 100 Stat. 867; Pub. L. 100–504, title I, §102(c), Oct. 18, 1988, 102 Stat. 2515; Pub. L. 100–527, §13(h)(2), (3), Oct. 5, 1988, 102 Stat. 2643; Pub. L. 101–73, title V, §501(b)(1), Aug. 9, 1989, 103 Stat. 393; Pub. L. 102–233, title III, §315(a), Dec. 12, 1991, 105 Stat. 1772; Pub. L. 103–82, title II, §202(g)(4), Sept. 21, 1993, 107 Stat. 890; Pub. L. 103–204, §23(a)(1), Dec. 17, 1993, 107 Stat. 2407; Pub. L. 103–296, title I, §108(l)(2), Aug. 15, 1994, 108 Stat. 1489; Pub. L. 103–325, title I, §118(a), Sept. 23, 1994, 108 Stat. 2188; Pub. L. 104–106, div. D, title XLIII, §4322(b)(1), (3), Feb. 10, 1996, 110 Stat. 677; Pub. L. 105–277, div. G, subdiv. A, title XIII, §1314(b), Oct. 21, 1998, 112 Stat. 2681–776; Pub. L. 106–422, §1(b)(2), Nov. 1, 2000, 114 Stat. 1872; Pub. L. 107–189, §22(a), (d), June 14, 2002, 116 Stat. 707, 708; Pub. L. 107–296, title XVII, §1701, Nov. 25, 2002, 116 Stat. 2313; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–295, title VI, §612(c), Oct. 4, 2006, 120 Stat. 1410; Pub. L. 110–234, title XIV, §14217(c), May 22, 2008, 122 Stat. 1482; Pub. L. 110–246, §4(a), title XIV, §14217(c), June 18, 2008, 122 Stat. 1664, 2244; Pub. L. 110–289, div. A, title I, §1105(c), July 30, 2008, 122 Stat. 2668; renumbered §12, Pub. L. 110–409, §7(a), Oct. 14, 2008, 122 Stat. 4305; Pub. L. 113–126, title IV, §§402(2), 412(2), July 7, 2014, 128 Stat. 1408, 1409; Pub. L. 115–141, div. P, title V, §501(a)(2), Mar. 23, 2018, 132 Stat. 1090.

In paragraph (1), the words "Veterans Affairs" are inserted in the list of Departments, and the words "Veterans' Administration" are deleted from the list of Administrations, to update obsolete references in the law.

In paragraph (1), the words "the Resolution Trust Corporation" have been omitted as obsolete because section 21A(m)(1) of the Federal Home Loan Bank Act (12 U.S.C. 1441a(m)(1)) provided for termination of the Resolution Trust Corporation not later than December 31, 1995, and the authority and responsibilities of the Resolution Trust Corporation were transferred to the Federal Deposit Insurance Corporation under section 40(n)(4) of the Federal Deposit Insurance Act (12 U.S.C. 1831q(n)(4)).

In paragraphs (1) and (3), the words "of the United States" are inserted after "Export-Import Bank" to correct errors in the law.

In paragraph (3), the words "Veterans Affairs" are inserted in the list of Secretaries, and the words "Veterans' Affairs" are deleted from the list of Administrators, to update obsolete references in the law.

In paragraph (3), the words "the Director of" are inserted before "the Office of Personnel Management" to correct an error in the law. The Office of Personnel Management is headed by a director (rather than an administrator) as provided in section 1102(a) of title 5, United States Code.

In paragraph (3), the words "the Chairperson of the Thrift Depositor Protection Oversight Board" are omitted because the Thrift Depositor Protection Oversight Board was abolished by section 14(a) through (d) of the Homeowners Protection Act of 1998 (Public Law 105–216, 112 Stat. 908).

In paragraph (3), the words "the chief executive officer of the Resolution Trust Corporation" are omitted because section 21A(m)(1) of the Federal Home Loan Bank Act (12 U.S.C. 1441a(m)(1)) provided for termination of the Resolution Trust Corporation not later than December 31, 1995, and the authority and responsibilities of the Resolution Trust Corporation were transferred to the Federal Deposit Insurance Corporation under section 40(n)(4) of the Federal Deposit Insurance Act (12 U.S.C. 1831q(n)(4)).

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Act

Pub. L. 95–452, §13, formerly §12, Oct. 12, 1978, 92 Stat. 1109, renumbered §13 by Pub. L. 110–409, §7(a), Oct. 14, 2008, 122 Stat. 4305, provided that: "The provisions of this Act [see Tables for classification] and the amendments made by this Act [amending sections 5315 and 5316 of this title and section 3522 of Title 42, The Public Health and Welfare] shall take effect October 1, 1978."

Short Title of 2022 Amendment

Pub. L. 117–263, div. E, title LII, §5201, Dec. 23, 2022, 136 Stat. 3222, provided that: "This subtitle [subtitle A (§§5201–5204) of title LII of div. E of Pub. L. 117–263, see Tables for classification] may be cited as the 'Securing Inspector General Independence Act of 2022'."

Pub. L. 117–263, div. E, title LII, §5231, Dec. 23, 2022, 136 Stat. 3234, provided that: "This subtitle [subtitle C (§§5231–5237) of title LII of div. E of Pub. L. 117–263, see Tables for classification] may be cited as the 'Integrity Committee Transparency Act of 2022'."

Short Title of 2018 Act

Pub. L. 115–192, §1, June 25, 2018, 132 Stat. 1502, provided that: "This Act [see Tables for classification] may be cited as the 'Whistleblower Protection Coordination Act'."

Short Title of 2016 Act

Pub. L. 114–317, §1(a), Dec. 16, 2016, 130 Stat. 1595, provided that: "This Act [see Tables for classification] may be cited as the 'Inspector General Empowerment Act of 2016'."

Short Title of 2008 Act

Pub. L. 110–409, §1, Oct. 14, 2008, 122 Stat. 4302, provided that: "This Act [see Tables for classification] may be cited as the 'Inspector General Reform Act of 2008'."

Short Title of 2006 Act

Pub. L. 109–440, §1, Dec. 20, 2006, 120 Stat. 3286, provided that: "This Act [see Tables for classification] may be cited as the 'Iraq Reconstruction Accountability Act of 2006'."

Short Title of 1998 Act

Pub. L. 105–272, title VII, §701(a), Oct. 20, 1998, 112 Stat. 2413, provided that: "This title [see Tables for classification] may be cited as the 'Intelligence Community Whistleblower Protection Act of 1998'."

Short Title of 1988 Act

Pub. L. 100–504, title I, §101, Oct. 18, 1988, 102 Stat. 2515, provided that: "This title [see Tables for classification] may be cited as the 'Inspector General Act Amendments of 1988'."

Short Title of 1978 Act

Pub. L. 95–452, §1, Oct. 12, 1978, 92 Stat. 1101, provided: "That this Act [see Tables for classification] be cited as the 'Inspector General Act of 1978'."

Merger of Office of Inspector General of United States Information Agency With Office of Inspector General of Department of State; Transfer of Functions

Pub. L. 104–134, title I, §101[(a)] [title IV], Apr. 26, 1996, 110 Stat. 1321, 1321-37; renumbered title I, Pub. L. 104–140, §1(a), May 2, 1996, 110 Stat. 1327, provided: "That notwithstanding any other provision of law, (1) the Office of the Inspector General of the United States Information Agency is hereby merged with the Office of the Inspector General of the Department of State; (2) the functions exercised and assigned to the Office of the Inspector General of the United States Information Agency before the effective date of this Act [Apr. 26, 1996] (including all related functions) are transferred to the Office of the Inspector General of the Department of State; and (3) the Inspector General of the Department of State shall also serve as the Inspector General of the United States Information Agency."

[Pub. L. 104–208, div. A, title I, §101(a) [title IV], Sept. 30, 1996, 110 Stat. 3009, 3009-47, provided in part: "That notwithstanding any other provision of law, the merger of the Office of Inspector General of the United States Information Agency with the Office of Inspector General of the Department of State provided for in the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1996, contained in Public Law 104–134 [set out above], is effective hereafter."]

[For abolition of Office of Inspector General of the United States Information Agency and transfer of functions to Office of Inspector General of Department of State and Foreign Service, see section 6533 of Title 22, Foreign Relations and Intercourse.]

Payment Authority Subject to Appropriations

Pub. L. 100–504, title I, §112, Oct. 18, 1988, 102 Stat. 2530, provided that: "Any authority to make payments under this title [see Tables for classification] shall be effective only to such extent as provided in appropriations Acts."

§402. Establishment and purpose of Offices of Inspector General

(a) Establishment.—

(1) In general.—Subject to paragraph (2), in each of the establishments listed in section 401(1) of this title, there is established an Office of Inspector General.

(2) Department of the treasury.—In the establishment of the Department of the Treasury, there is established—

(A) an Office of Inspector General of the Department of the Treasury; and

(B) an Office of Treasury Inspector General for Tax Administration.

(b) Purpose.—The offices established under subsection (a) are established in order to create independent and objective units—

(1) to conduct and supervise audits and investigations relating to the programs and operations of the establishments listed in section 401(1) of this title;

(2) to provide leadership and coordination and recommend policies for activities designed—

(A) to promote economy, efficiency, and effectiveness in the administration of those programs and operations; and

(B) to prevent and detect fraud and abuse in those programs and operations; and

(3) to provide a means for keeping the head of the establishments and Congress fully and currently informed about problems and deficiencies relating to the administration of those programs and operations and the necessity for and progress of corrective action.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4208.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
402	5 U.S.C. App. (IGA §2)	Pub. L. 95–452, §2, Oct. 12, 1978, 92 Stat. 1101; Pub. L. 96–88, title V, §508(n)(1), Oct. 17, 1979, 93 Stat. 694; Pub. L. 97–113, title VII, §705(a)(1), Dec. 29, 1981, 95 Stat. 1544; Pub. L. 97–252, title XI, §1117(a)(1), Sept. 8, 1982, 96 Stat. 750; Pub. L. 99–93, title I, §150(a)(1), Aug. 16, 1985, 99 Stat. 427; Pub. L. 99–399, title IV, §412(a)(1), Aug. 27, 1986, 100 Stat. 867; Pub. L. 100–504, title I, §102(a), (b), Oct. 18, 1988, 102 Stat. 2515; Pub. L. 100–527, §13(h)(1), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 105–206, title I, §1103(a), July 22, 1998, 112 Stat. 705; Pub. L. 110–409, §7(d)(1)(A), Oct. 14, 2008, 122 Stat. 4313.

§403. Appointments

(a) In General.—There shall be at the head of each Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. Each Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of the establishment. Neither the head of the establishment nor the officer next in rank below the head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.

(b) Removal or Transfer.—An Inspector General may be removed from office by the President. If an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.

(c) Not Employee Determining Policy.—For the purposes of section 7324 of this title, an Inspector General shall not be considered to be an employee who determines policies to be pursued by the United States in the nationwide administration of Federal laws.

(d) Assistant Inspectors General and Whistleblower Protection Coordinator.—

(1) In general.—Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service—

(A) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations of the establishment;

(B) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations; and

(C) designate a Whistleblower Protection Coordinator who shall—

(i) educate agency employees—

(I) about prohibitions against retaliation for protected disclosures; and

(II) who have made or are contemplating making a protected disclosure about the rights and remedies against retaliation for protected disclosures, including—

(aa) the means by which employees may seek review of any allegation of reprisal, including the roles of the Office of the Inspector General, the Office of Special Counsel, the Merit Systems Protection Board, and any other relevant entities; and

(bb) general information about the timeliness of such cases, the availability of any alternative dispute mechanisms, and avenues for potential relief;

(ii) assist the Inspector General in promoting the timely and appropriate handling and consideration of protected disclosures and allegations of reprisal, to the extent practicable, by the Inspector General; and

(iii) assist the Inspector General in facilitating communication and coordination with the Special Counsel, the Council of the Inspectors General on Integrity and Efficiency, the establishment, Congress, and any other relevant entity regarding the timely and appropriate handling and consideration of protected disclosures, allegations of reprisal, and general matters regarding the implementation and administration of whistleblower protection laws, rules, and regulations.

(2) Whistleblower protection coordinator not to act as legal representative, agent, or advocate.—The Whistleblower Protection Coordinator shall not act as a legal representative, agent, or advocate of the employee or former employee.

(3) Whistleblower protection coordinator access to inspector general.—The Whistleblower Protection Coordinator shall have direct access to the Inspector General as needed to accomplish the requirements of this subsection.

(4) Whistleblower protection coordinator exception for intelligence activity.—For the purposes of this section, the requirement of the designation of a Whistleblower Protection Coordinator under paragraph (1)(C) shall not apply to—

(A) any agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4))); or

(B) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counter intelligence activities.

(e) Rate of Pay.—The annual rate of basic pay for an Inspector General (as defined under section 401 of this title) shall be the rate payable for level III of the Executive Schedule under section 5314 of this title, plus 3 percent.

(f) Prohibition on Cash Awards.—An Inspector General (as defined under section 401 or 415(a) of this title) may not receive any cash award or cash bonus, including any cash award under chapter 45 of this title.

(g) Legal Advice.—Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service, obtain legal advice from a counsel either reporting directly to the Inspector General or another Inspector General.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4208.)

Amendments Not Shown in Text

This section was derived from section 3 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 3 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §§5202(a)(1), 5203(a), 5204(a), Dec. 23, 2022, 136 Stat. 3222, 3227, 3233, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4208, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 3 of Pub. L. 95–452 was amended as follows:

(1) in subsection (b)—

(A) by inserting "(1)(A)" after "(b)";

(B) in paragraph (1), as so designated—

(i) in subparagraph (A), as so designated, in the second sentence—

(I) by striking "reasons" and inserting "substantive rationale, including detailed and case-specific reasons,"; and

(II) by inserting "(including to the appropriate congressional committees)" after "Houses of Congress"; and

(ii) by adding at the end the following:

"(B) If there is an open or completed inquiry into an Inspector General that relates to the removal or transfer of the Inspector General under subparagraph (A), the written communication required under that subparagraph shall—

"(i) identify each entity that is conducting, or that conducted, the inquiry; and

"(ii) in the case of a completed inquiry, contain the findings made during the inquiry."; and

(C) by adding at the end the following:

"(2)(A) Subject to the other provisions of this paragraph, only the President may place an Inspector General on non-duty status.

"(B) If the President places an Inspector General on non-duty status, the President shall communicate in writing the substantive rationale, including detailed and case-specific reasons, for the change in status to both Houses of Congress (including to the appropriate congressional committees) not later than 15 days before the date on which the change in status takes effect, except that the President may submit that communication not later than the date on which the change in status takes effect if—

"(i) the President has made a determination that the continued presence of the Inspector General in the workplace poses a threat described in any of clauses (i) through (iv) of section 6329b(b)(2)(A) of title 5, United States Code; and

"(ii) in the communication, the President includes a report on the determination described in clause (i), which shall include—

"(I) a specification of which clause of section 6329b(b)(2)(A) of title 5, United States Code, the President has determined applies under clause (i) of this subparagraph;

"(II) the substantive rationale, including detailed and case-specific reasons, for the determination made under clause (i);

"(III) an identification of each entity that is conducting, or that conducted, any inquiry upon which the determination under clause (i) was made; and

"(IV) in the case of an inquiry described in subclause (III) that is completed, the findings made during that inquiry.

"(C) The President may not place an Inspector General on non-duty status during the 30-day period preceding the date on which the Inspector General is removed or transferred under paragraph (1)(A) unless the President—

"(i) has made a determination that the continued presence of the Inspector General in the workplace poses a threat described in any of clauses (i) through (iv) of section 6329b(b)(2)(A) of title 5, United States Code; and

"(ii) not later than the date on which the change in status takes effect, submits to both Houses of Congress (including to the appropriate congressional committees) a written communication that contains the information required under subparagraph (B), including the report required under clause (ii) of that subparagraph.

"(D) For the purposes of this paragraph—

"(i) the term 'Inspector General'—

"(I) means an Inspector General who was appointed by the President, without regard to whether the Senate provided advice and consent with respect to that appointment; and

"(II) includes the Inspector General of an establishment, the Special Inspector General for Afghanistan Reconstruction, the Special Inspector General for the Troubled Asset Relief Program, and the Special Inspector General for Pandemic Recovery; and

"(ii) a reference to the removal or transfer of an Inspector General under paragraph (1), or to the written communication described in that paragraph, shall be considered to be—

"(I) in the case of the Special Inspector General for Afghanistan Reconstruction, a reference to section 1229(c)(6) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 378);

"(II) in the case of the Special Inspector General for the Troubled Asset Relief Program, a reference to section 121(b)(4) of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5231(b)(4)); and

"(III) in the case of the Special Inspector General for Pandemic Recovery, a reference to section 4018(b)(3) of the CARES Act (15 U.S.C. 9053(b)(3)).";

(2) in subsection (d)(1)(C)—

(A) in clause (i), in the matter preceding subclause (I), by inserting ", including employees of that Office of Inspector General" after "employees"; and

(B) in clause (iii), by inserting "(including the Integrity Committee of that Council)" after "and Efficiency"; and

(3) by adding at the end the following:

"(h)(1) In this subsection—

"(A) the term 'first assistant to the position of Inspector General' means, with respect to an Office of Inspector General—

"(i) an individual who, as of the day before the date on which the Inspector General dies, resigns, or otherwise becomes unable to perform the functions and duties of that position—

"(I) is serving in a position in that Office; and

"(II) has been designated in writing by the Inspector General, through an order of succession or otherwise, as the first assistant to the position of Inspector General; or

"(ii) if the Inspector General has not made a designation described in clause (i)(II)—

"(I) the Principal Deputy Inspector General of that Office, as of the day before the date on which the Inspector General dies, resigns, or otherwise becomes unable to perform the functions and duties of that position; or

"(II) if there is no Principal Deputy Inspector General of that Office, the Deputy Inspector General of that Office, as of the day before the date on which the Inspector General dies, resigns, or otherwise becomes unable to perform the functions and duties of that position; and

"(B) the term 'Inspector General'—

"(i) means an Inspector General who is appointed by the President, by and with the advice and consent of the Senate; and

"(ii) includes the Inspector General of an establishment, the Special Inspector General for the Troubled Asset Relief Program, and the Special Inspector General for Pandemic Recovery.

"(2) If an Inspector General dies, resigns, or is otherwise unable to perform the functions and duties of the position—

"(A) section 3345(a) of title 5, United States Code, and section 103(e) of the National Security Act of 1947 (50 U.S.C. 3025(e)) shall not apply;

"(B) subject to paragraph (4), the first assistant to the position of Inspector General shall perform the functions and duties of the Inspector General temporarily in an acting capacity subject to the time limitations of section 3346 of title 5, United States Code; and

"(C) notwithstanding subparagraph (B), and subject to paragraphs (4) and (5), the President (and only the President) may direct an officer or employee of any Office of an Inspector General to perform the functions and duties of the Inspector General temporarily in an acting capacity subject to the time limitations of section 3346 of title 5, United States Code, only if—

"(i) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the Inspector General, the officer or employee served in a position in an Office of an Inspector General for not less than 90 days, except that—

"(I) the requirement under this clause shall not apply if the officer is an Inspector General; and

"(II) for the purposes of this subparagraph, performing the functions and duties of an Inspector General temporarily in an acting capacity does not qualify as service in a position in an Office of an Inspector General;

"(ii) the rate of pay for the position of the officer or employee described in clause (i) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule;

"(iii) the officer or employee has demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations; and

"(iv) not later than 30 days before the date on which the direction takes effect, the President communicates in writing to both Houses of Congress (including to the appropriate congressional committees) the substantive rationale, including the detailed and case-specific reasons, for such direction, including the reason for the direction that someone other than the individual who is performing the functions and duties of the Inspector General temporarily in an acting capacity (as of the date on which the President issues that direction) perform those functions and duties temporarily in an acting capacity.

"(3) Notwithstanding section 3345(a) of title 5, United States Code, and subparagraphs (B) and (C) of paragraph (2), and subject to paragraph (4), during any period in which an Inspector General is on non-duty status—

"(A) the first assistant to the position of Inspector General shall perform the functions and duties of the position temporarily in an acting capacity subject to the time limitations of section 3346 of title 5, United States Code; and

"(B) if the first assistant described in subparagraph (A) dies, resigns, or becomes otherwise unable to perform those functions and duties, the President (and only the President) may direct an officer or employee in that Office of Inspector General to perform those functions and duties temporarily in an acting capacity, subject to the time limitations of section 3346 of title 5, United States Code, if—

"(i) that direction satisfies the requirements under clauses (ii), (iii), and (iv) of paragraph (2)(C); and

"(ii) that officer or employee served in a position in that Office of Inspector General for not fewer than 90 of the 365 days preceding the date on which the President makes that direction.

"(4) An individual may perform the functions and duties of an Inspector General temporarily and in an acting capacity under subparagraph (B) or (C) of paragraph (2), or under paragraph (3), with respect to only 1 Inspector General position at any given time.

"(5) If the President makes a direction under paragraph (2)(C), during the 30-day period preceding the date on which the direction of the President takes effect, the functions and duties of the position of the applicable Inspector General shall be performed by—

"(A) the first assistant to the position of Inspector General; or

"(B) the individual performing those functions and duties temporarily in an acting capacity, as of the date on which the President issues that direction, if that individual is an individual other than the first assistant to the position of Inspector General."

As enacted by Pub. L. 117–286, subsection (b) of this section contains a heading after the subsection designation. The amendment inserting "(1)(A)" after "(b)" in section 3(b) of Pub. L. 95–452 amended text that did not contain a subsection heading.

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
403	5 U.S.C. App. (IGA §3)	Pub. L. 95–452, §3, Oct. 12, 1978, 92 Stat. 1101; Pub. L. 110–409, §§3(a), 4(a)(1), 5, 6(a), Oct. 14, 2008, 122 Stat. 4302, 4305; Pub. L. 112–199, title I, §117(a), Nov. 27, 2012, 126 Stat. 1474; Pub. L. 114–317, §7(d)(3)(A), Dec. 16, 2016, 130 Stat. 1606; Pub. L. 115–192, §2(a), June 25, 2018, 132 Stat. 1502.

In subsection (d)(4) (matter before subparagraph (A)), the words "Whistleblower Protection Coordinator" are substituted for "Whistleblower Protection Ombudsman" to correct an error in the law.

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Pub. L. 117–263, div. E, title LII, §5203(e), Dec. 23, 2022, 136 Stat. 3233, provided that:

"(1) Definition.—In this subsection, the term 'Inspector General' has the meaning given the term in subsection (h)(1)(B) of section 3 of the Inspector General Act of 1978 (5 U.S.C. App.), as added by subsection (a) of this section [see Amendments Not Shown in Text note above].

"(2) Applicability.—

"(A) In general.—Except as provided in subparagraph (B), this section [amending section 3 of Pub. L. 95–452 (restated as this section), sections 3033 and 3517 of Title 50, War and National Defense, and enacting provisions set out as a note under this section], and the amendments made by this section, shall take effect on the date of enactment of this Act [Dec. 23, 2022].

"(B) Existing vacancies.—If, as of the date of enactment of this Act, an individual is performing the functions and duties of an Inspector General temporarily in an acting capacity, this section, and the amendments made by this section, shall take effect with respect to that Inspector General position on the date that is 30 days after the date of enactment of this Act."

Construction

Pub. L. 117–263, div. E, title LII, §5203(d), Dec. 23, 2022, 136 Stat. 3233, provided that: "Nothing in the amendment made by subsection (a) [adding subsec. (h) to section 3 of Pub. L. 95–452 (restated as this section), see Amendments Not Shown in Text note above] may be construed to limit the applicability of sections 3345 through 3349d of title 5, United States Code (commonly known as the 'Federal Vacancies Reform Act of 1998'), other than with respect to section 3345(a) of that title."

Pub. L. 110–409, §6(c), Oct. 14, 2008, 122 Stat. 4305, as amended by Pub. L. 117–286, §4(b)(5), Dec. 27, 2022, 136 Stat. 4343, provided that: "Nothing in the amendments made by this section [amending former sections 3 and 8G of Pub. L. 95–452, see 5 U.S.C. 403, 415] shall be construed to alter the duties and responsibilities of the counsel for any establishment or designated Federal entity, except for the availability of counsel as provided under sections 403(g) and 415(g) of title 5, United States Code. The Counsel to the Inspector General shall perform such functions as the Inspector General may prescribe."

Acting Treasury Inspector General for Tax Administration

Pub. L. 105–277, div. C, title I, §101, Oct. 21, 1998, 112 Stat. 2681–584, as amended by Pub. L. 106–113, div. B, §1000(a)(5) [title II, §239(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A-302; Pub. L. 117–286, §4(b)(7), Dec. 27, 2022, 136 Stat. 4343, related to the appointment by the President of an Acting Treasury Inspector General for Tax Administration whose service was to conclude no later than Apr. 30, 1999.

[Pub. L. 106–113, div. B, §1000(a)(5) [title II, §239(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A-302, provided that the amendment made by subsection §239(a) to section 101 of Pub. L. 105–277 was effective as if included in the enactment of Pub. L. 105–277.]

§404. Duties and responsibilities

(a) In General.—It shall be the duty and responsibility of each Inspector General, with respect to the establishment within which the Inspector General's Office is established—

(1) to provide policy direction for and to conduct, supervise, and coordinate audits and investigations relating to the programs and operations of the establishment;

(2) to review existing and proposed legislation and regulations relating to programs and operations of the establishment and to make recommendations in the semiannual reports required by section 405(b) of this title concerning the impact of the legislation and regulations on the economy and efficiency in the administration of programs and operations administered or financed by the establishment, or the prevention and detection of fraud and abuse in the programs and operations;

(3) to recommend policies for, and to conduct, supervise, or coordinate other activities carried out or financed by, the establishment for the purpose of promoting economy and efficiency in the administration of, or preventing and detecting fraud and abuse in, its programs and operations;

(4) to recommend policies for the establishment, and to conduct, supervise, or coordinate relationships between the establishment and other Federal agencies, State and local governmental agencies, and nongovernmental entities, with respect to—

(A) all matters relating to the promotion of economy and efficiency in the administration of, or the prevention and detection of fraud and abuse in, programs and operations administered or financed by the establishment; or

(B) the identification and prosecution of participants in fraud or abuse referred to in subparagraph (A); and

(5) to keep the head of the establishment and Congress fully and currently informed, by means of the reports required by section 405 of this title and otherwise, concerning fraud and other serious problems, abuses, and deficiencies relating to the administration of programs and operations administered or financed by the establishment, to recommend corrective action concerning the problems, abuses, and deficiencies, and to report on the progress made in implementing the corrective action.

(b) Standards and Guidelines.—

(1) In general.—In carrying out the responsibilities specified in subsection (a)(1), each Inspector General shall—

(A) comply with standards established by the Comptroller General of the United States for audits of Federal establishments, organizations, programs, activities, and functions;

(B) establish guidelines for determining when it shall be appropriate to use non-Federal auditors; and

(C) take appropriate steps to ensure that any work performed by non-Federal auditors complies with the standards established by the Comptroller General as described in paragraph (1).¹

(2) Reviews performed exclusively by audit entities in federal government.—For purposes of determining compliance with paragraph (1)(A) with respect to whether internal quality controls are in place and operating and whether established audit standards, policies, and procedures are being followed by Offices of Inspector General of establishments defined under section 401 of this title, Offices of Inspector General of designated Federal entities defined under section 415(a) of this title, and any audit office established within a Federal entity defined under section 415(a) of this title, reviews shall be performed exclusively by an audit entity in the Federal Government, including the Government Accountability Office or the Office of Inspector General of each establishment defined under section 401 of this title, or the Office of Inspector General of each designated Federal entity defined under section 415(a) of this title.

(c) Effective Coordination and Cooperation.—In carrying out the duties and responsibilities established under this chapter, each Inspector General shall give particular regard to the activities of the Comptroller General of the United States with a view toward avoiding duplication and ensuring effective coordination and cooperation.

(d) Reporting Violation of Federal Criminal Law.—In carrying out the duties and responsibilities established under this chapter, each Inspector General shall report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.

(e) Recommendations for Corrective Actions.—

(1) Submission of documents.—In carrying out the duties and responsibilities established under this chapter, whenever an Inspector General issues a recommendation for corrective action to the agency, the Inspector General—

(A) shall submit the document making a recommendation for corrective action to—

(i) the head of the establishment;

(ii) the congressional committees of jurisdiction; and

(iii) if the recommendation for corrective action was initiated upon request by an individual or entity other than the Inspector General, that individual or entity;

(B) may submit the document making a recommendation for corrective action to any Member of Congress upon request; and

(C) not later than 3 days after the recommendation for corrective action is submitted in final form to the head of the establishment, post the document making a recommendation for corrective action on the website of the Office of Inspector General.

(2) Public disclosure otherwise prohibited by law.—Nothing in this subsection shall be construed as authorizing an Inspector General to publicly disclose information otherwise prohibited from disclosure by law.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4210.)

Amendments Not Shown in Text

This section was derived from section 4 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 4 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §5273(1), Dec. 23, 2022, 136 Stat. 3241, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4210, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 4 of Pub. L. 95–452 was amended in subsection (a)(2) as follows:

(1) by inserting ", including" after "to make recommendations"; and

(2) by inserting a comma after "section 5(a)".

The phrase "section 5(a)" did not appear in the text of subsection (a)(2) as enacted by Pub. L. 117–286 but was changed to "section 405(b) of this title".

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
404	5 U.S.C. App. (IGA §4)	Pub. L. 95–452, §4, Oct. 12, 1978, 92 Stat. 1102; Pub. L. 100–504, title I, §109, Oct. 18, 1988, 102 Stat. 2529; Pub. L. 103–82, title II, §202(g)(5)(A), Sept. 21, 1993, 107 Stat. 890; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–409, §7(d)(1)(A), Oct. 14, 2008, 122 Stat. 4313; Pub. L. 114–317, §§4(d), 7(d)(2)(A), Dec. 16, 2016, 130 Stat. 1602, 1606

In subsection (a)(4) (matter before subparagraph (A)), the words "the establishment" are inserted after "to recommend policies for" and a comma is inserted after "and nongovernmental entities" for clarity.

In subsection (b)(1)(C), the word "ensure" is substituted for "assure" for clarity.

In subsection (c), the word "ensuring" is substituted for "insuring" for clarity.

Editorial Notes

References in Text

Paragraph (1), referred to in subsec. (b)(1)(C), means par. (1) of subsec. (b) of this section, but probably should be a reference to subpar. (A) of subsec. (b)(1) of this section. Prior to repeal and restatement as this section, subsec. (b)(1) of the source section had been redesignated as subsec. (b)(1)(A) by Pub. L. 100–504, title I, §109(1), (2), Oct. 18, 1988, 102 Stat. 2529, with no conforming amendment to the reference, and the restated text carried over such reference without change.

-

¹ See References in Text note below.

§405. Reports

(a) Definitions.—In this section:

(1) Disallowed cost.—The term "disallowed cost" means a questioned cost that management, in a management decision, has sustained or agreed should not be charged to the Government.

(2) Final action.—The term "final action" means—

(A) the completion of all actions that the management of an establishment has concluded, in its management decision, are necessary with respect to the findings and recommendations included in an audit report; and

(B) in the event that the management of an establishment concludes no action is necessary, final action occurs when a management decision has been made.

(3) Management decision.—The term "management decision" means the evaluation by the management of an establishment of the findings and recommendations included in an audit report and the issuance of a final decision by management concerning its response to the findings and recommendations, including actions concluded to be necessary.

(4) Questioned cost.—The term "questioned cost" means a cost that is questioned by the Office because of—

(A) an alleged violation of a provision of a law, regulation, contract, grant, cooperative agreement, or other agreement or document governing the expenditure of funds;

(B) a finding that, at the time of the audit, the cost is not supported by adequate documentation; or

(C) a finding that the expenditure of funds for the intended purpose is unnecessary or unreasonable.

(5) Recommendation that funds be put to better use.—The term "recommendation that funds be put to better use" means a recommendation by the Office that funds could be used more efficiently if management of an establishment took actions to implement and complete the recommendation, including—

(A) reductions in outlays;

(B) deobligation of funds from programs or operations;

(C) withdrawal of interest subsidy costs on loans or loan guarantees, insurance, or bonds;

(D) costs not incurred by implementing recommended improvements related to the operations of the establishment, a contractor, or grantee;

(E) avoidance of unnecessary expenditures noted in preaward reviews of contract or grant agreements; or

(F) any other savings which are specifically identified.

(6) Senior government employee.—The term "senior Government employee" means—

(A) an officer or employee in the executive branch (including a special Government employee as defined in section 202 of title 18) who occupies a position classified at or above GS–15 of the General Schedule or, in the case of positions not under the General Schedule, for which the rate of basic pay is equal to or greater than 120 percent of the minimum rate of basic pay payable for GS–15 of the General Schedule; and

(B) any commissioned officer in the Armed Forces in pay grades O–6 and above.

(7) Unsupported cost.—The term "unsupported cost" means a cost that is questioned by the Office because the Office found that, at the time of the audit, such cost is not supported by adequate documentation.

(b) Semiannual Reports.—Each Inspector General shall, not later than April 30 and October 31 of each year, prepare semiannual reports summarizing the activities of the Office during the immediately preceding 6-month periods ending March 31 and September 30. The reports shall include, but need not be limited to—

(1) a description of significant problems, abuses, and deficiencies relating to the administration of programs and operations of such establishment disclosed by such activities during the reporting period;

(2) a description of the recommendations for corrective action made by the Office during the reporting period with respect to significant problems, abuses, or deficiencies identified pursuant to paragraph (1);

(3) an identification of each significant recommendation described in previous semiannual reports on which corrective action has not been completed;

(4) a summary of matters referred to prosecutive authorities and the prosecutions and convictions which have resulted;

(5) a summary of each report made to the head of the establishment under section 406(c)(2) of this title during the reporting period;

(6) a listing, subdivided according to subject matter, of each audit report, inspection report, and evaluation report issued by the Office during the reporting period and for each report, where applicable, the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs) and the dollar value of recommendations that funds be put to better use;

(7) a summary of each particularly significant report;

(8) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs), for reports—

(A) for which no management decision had been made by the commencement of the reporting period;

(B) which were issued during the reporting period;

(C) for which a management decision was made during the reporting period, including—

(i) the dollar value of disallowed costs; and

(ii) the dollar value of costs not disallowed; and

(D) for which no management decision has been made by the end of the reporting period;

(9) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the dollar value of recommendations that funds be put to better use by management, for reports—

(A) for which no management decision had been made by the commencement of the reporting period;

(B) which were issued during the reporting period;

(C) for which a management decision was made during the reporting period, including—

(i) the dollar value of recommendations that were agreed to by management; and

(ii) the dollar value of recommendations that were not agreed to by management; and

(D) for which no management decision has been made by the end of the reporting period;

(10) a summary of each audit report, inspection report, and evaluation report issued before the commencement of the reporting period—

(A) for which no management decision has been made by the end of the reporting period (including the date and title of each such report), an explanation of the reasons such management decision has not been made, and a statement concerning the desired timetable for achieving a management decision on each such report;

(B) for which no establishment comment was returned within 60 days of providing the report to the establishment; and

(C) for which there are any outstanding unimplemented recommendations, including the aggregate potential cost savings of those recommendations;

(11) a description and explanation of the reasons for any significant revised management decision made during the reporting period;

(12) information concerning any significant management decision with which the Inspector General is in disagreement;

(13) the information described under section 804(b) of the Federal Financial Management Improvement Act of 1996 (Public Law 104–208, §101(f) [title VIII], 31 U.S.C. 3512 note);

(14)(A) an appendix containing the results of any peer review conducted by another Office of Inspector General during the reporting period; or

(B) if no peer review was conducted within that reporting period, a statement identifying the date of the last peer review conducted by another Office of Inspector General;

(15) a list of any outstanding recommendations from any peer review conducted by another Office of Inspector General that have not been fully implemented, including a statement describing the status of the implementation and why implementation is not complete;

(16) a list of any peer reviews conducted by the Inspector General of another Office of the Inspector General during the reporting period, including a list of any outstanding recommendations made from any previous peer review (including any peer review conducted before the reporting period) that remain outstanding or have not been fully implemented;

(17) statistical tables showing—

(A) the total number of investigative reports issued during the reporting period;

(B) the total number of persons referred to the Department of Justice for criminal prosecution during the reporting period;

(C) the total number of persons referred to State and local prosecuting authorities for criminal prosecution during the reporting period; and

(D) the total number of indictments and criminal informations during the reporting period that resulted from any prior referral to prosecuting authorities;

(18) a description of the metrics used for developing the data for the statistical tables under paragraph (17);

(19) a report on each investigation conducted by the Office involving a senior Government employee where allegations of misconduct were substantiated, including the name of the senior government official (as defined by the department or agency) if already made public by the Office, and a detailed description of—

(A) the facts and circumstances of the investigation; and

(B) the status and disposition of the matter, including—

(i) if the matter was referred to the Department of Justice, the date of the referral; and

(ii) if the Department of Justice declined the referral, the date of the declination;

(20)(A) a detailed description of any instance of whistleblower retaliation, including information about the official found to have engaged in retaliation; and

(B) what, if any, consequences the establishment actually imposed to hold the official described in subparagraph (A) accountable;

(21) a detailed description of any attempt by the establishment to interfere with the independence of the Office, including—

(A) with budget constraints designed to limit the capabilities of the Office; and

(B) incidents where the establishment has resisted or objected to oversight activities of the Office or restricted or significantly delayed access to information, including the justification of the establishment for such action; and

(22) detailed descriptions of the particular circumstances of each—

(A) inspection, evaluation, and audit conducted by the Office that is closed and was not disclosed to the public; and

(B) investigation conducted by the Office involving a senior Government employee that is closed and was not disclosed to the public.

(c) Furnishing Semiannual Reports to Head of Establishment and Congress.—Semiannual reports of each Inspector General shall be furnished to the head of the establishment involved not later than April 30 and October 31 of each year and shall be transmitted by the head of the establishment to the appropriate committees or subcommittees of the Congress within 30 days after receipt of the report, together with a report by the head of the establishment containing—

(1) any comments the head of the establishment determines appropriate;

(2) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the dollar value of disallowed costs, for reports—

(A) for which final action had not been taken by the commencement of the reporting period;

(B) on which management decisions were made during the reporting period;

(C) for which final action was taken during the reporting period, including—

(i) the dollar value of disallowed costs that were recovered by management through collection, offset, property in lieu of cash, or otherwise; and

(ii) the dollar value of disallowed costs that were written off by management; and

(D) for which no final action has been taken by the end of the reporting period;

(3) statistical tables showing the total number of audit reports, inspection reports, and evaluation reports and the dollar value of recommendations that funds be put to better use by management agreed to in a management decision, for reports—

(A) for which final action had not been taken by the commencement of the reporting period;

(B) on which management decisions were made during the reporting period;

(C) for which final action was taken during the reporting period, including—

(i) the dollar value of recommendations that were actually completed; and

(ii) the dollar value of recommendations that management has subsequently concluded should not or could not be implemented or completed; and

(D) for which no final action has been taken by the end of the reporting period;

(4) whether the establishment entered into a settlement agreement with the official described in subsection (b)(20)(A), which shall be reported regardless of any confidentiality agreement relating to the settlement agreement;

(5) information relating to cases under chapter 38 of title 31, including—

(A) the number of reports submitted by investigating officials to reviewing officials under section 3803(a)(1) of such title;

(B) actions taken in response to reports described in subparagraph (A), which shall include statistical tables showing—

(i) pending cases;

(ii) resolved cases;

(iii) the average length of time to resolve each case;

(iv) the number of final agency decisions that were appealed to a district court of the United States or a higher court; and

(v) if the total number of cases in a report is greater than 2—

(I) the number of cases that were settled; and

(II) the total penalty or assessment amount recovered in each case, including through a settlement or compromise; and

(C) instances in which the reviewing official declined to proceed on a case reported by an investigating official; and

(6) a statement with respect to audit reports on which management decisions have been made but final action has not been taken, other than audit reports on which a management decision was made within the preceding year, containing—

(A) a list of such audit reports and the date each such report was issued;

(B) the dollar value of disallowed costs for each report;

(C) the dollar value of recommendations that funds be put to better use agreed to by management for each report; and

(D) an explanation of the reasons final action has not been taken with respect to each audit report,

except that the statement may exclude any audit reports that are under formal administrative or judicial appeal or upon which management of an establishment has agreed to pursue a legislative solution, but the statement shall identify the number of reports in each category so excluded.

(d) Reports Available to Public.—Within 60 days of the transmission of the semiannual reports of each Inspector General to Congress, the head of each establishment shall make copies of the report available to the public upon request and at a reasonable cost. Within 60 days after the transmission of the semiannual reports of each establishment head to Congress, the head of each establishment shall make copies of the report available to the public upon request and at a reasonable cost.

(e) Reporting Serious Problems, Abuses, or Deficiencies.—Each Inspector General shall report immediately to the head of the establishment involved whenever the Inspector General becomes aware of particularly serious or flagrant problems, abuses, or deficiencies relating to the administration of programs and operations of the establishment. The head of the establishment shall transmit any such report to the appropriate committees or subcommittees of Congress within 7 calendar days, together with a report by the head of the establishment containing any comments the establishment head deems appropriate.

(f) Limitation on Public Disclosure of Information.—

(1) In general.—Nothing in this section shall be construed to authorize the public disclosure of information that is—

(A) specifically prohibited from disclosure by any other provision of law;

(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or

(C) a part of an ongoing criminal investigation.

(2) Criminal investigation information in public records.—Notwithstanding paragraph (1)(C), any report under this section may be disclosed to the public in a form which includes information with respect to a part of an ongoing criminal investigation if such information has been included in a public record.

(3) No authorization to withhold information from congress.—Except to the extent and in the manner provided under section 6103(f) of the Internal Revenue Code of 1986 (26 U.S.C. 6103(f)), nothing in this section or in any other provision of this chapter shall be construed to authorize or permit the withholding of information from Congress, or from any committee or subcommittee of Congress.

(4) Provision of information to members of congress.—Subject to any other provision of law that would otherwise prohibit disclosure of such information, the information described in paragraph (1) may be provided to any Member of Congress upon request.

(5) Protection of personally identifiable information of whistleblowers.—An Office may not provide to Congress or the public any information that reveals the personally identifiable information of a whistleblower under this section unless the Office first obtains the consent of the whistleblower.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4212; Pub. L. 118–159, div. E, title LII, §5203(e), Dec. 23, 2024, 138 Stat. 2441.)

Amendments Not Shown in Text

This section was derived from section 5 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 5 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §§5235, 5241, 5272(1), 5273(2), 5274(a), Dec. 23, 2022, 136 Stat. 3236, 3237, 3239, 3241, 3244, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4212, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 5 of Pub. L. 95–452 was amended as follows:

(1) in subsection (a) [enacted by Pub. L. 117–286 as subsection (b) of this section]—

(A) by striking paragraphs (1) through (12) and inserting the following:

"(1) a description of significant problems, abuses, and deficiencies relating to the administration of programs and operations of the establishment and associated reports and recommendations for corrective action made by the Office;

"(2) an identification of each recommendation made before the reporting period, for which corrective action has not been completed, including the potential costs savings associated with the recommendation;

"(3) a summary of significant investigations closed during the reporting period;

"(4) an identification of the total number of convictions during the reporting period resulting from investigations;

"(5) information regarding each audit, inspection, or evaluation report issued during the reporting period, including—

"(A) a listing of each audit, inspection, or evaluation;

"(B) if applicable, the total dollar value of questioned costs (including a separate category for the dollar value of unsupported costs) and the dollar value of recommendations that funds be put to better use, including whether a management decision had been made by the end of the reporting period;

"(6) information regarding any management decision made during the reporting period with respect to any audit, inspection, or evaluation issued during a previous reporting period;";

(B) by redesignating paragraphs (13) through (22) as paragraphs (7) through (16), respectively;

(C) by amending paragraph (13), as so redesignated, to read as follows:

"(13) a report on each investigation conducted by the Office where allegations of misconduct were substantiated involving a senior Government employee or senior official (as defined by the Office) if the establishment does not have senior Government employees, which shall include—

"(A) the name of the senior Government employee, if already made public by the Office; and

"(B) a detailed description of—

"(i) the facts and circumstances of the investigation; and

"(ii) the status and disposition of the matter, including—

"(I) if the matter was referred to the Department of Justice, the date of the referral; and

"(II) if the Department of Justice declined the referral, the date of the declination;"; and

(D) by amending paragraph (15), as so redesignated, to read as follows:

"(15) information related to interference by the establishment, including—

"(A) a detailed description of any attempt by the establishment to interfere with the independence of the Office, including—

"(i) with budget constraints designed to limit the capabilities of the Office; and

"(ii) incidents where the establishment has resisted or objected to oversight activities of the Office or restricted or significantly delayed access to information, including the justification of the establishment for such action; and

"(B) a summary of each report made to the head of the establishment under section 6(c)(2) during the reporting period;";

(2) in subsection (b) [enacted by Pub. L. 117–286 as subsection (c) of this section]—

(A) in the matter preceding paragraph (1), by striking "committees or subcommittees of the Congress" and inserting "congressional committees";

(B) by striking paragraphs (2) and (3) and inserting the following:

"(2) where final action on audit, inspection, and evaluation reports had not been taken before the commencement of the reporting period, statistical tables showing—

"(A) with respect to management decisions—

"(i) for each report, whether a management decision was made during the reporting period;

"(ii) if a management decision was made during the reporting period, the dollar value of disallowed costs and funds to be put to better use as agreed to in the management decision; and

"(iii) total number of reports where a management decision was made during the reporting period and the total corresponding dollar value of disallowed costs and funds to be put to better use as agreed to in the management decision; and

"(B) with respect to final actions—

"(i) whether, if a management decision was made before the end of the reporting period, final action was taken during the reporting period;

"(ii) if final action was taken, the dollar value of—

"(I) disallowed costs that were recovered by management through collection, offset, property in lieu of cash, or otherwise;

"(II) disallowed costs that were written off by management;

"(III) disallowed costs and funds to be put to better use not yet recovered or written off by management;

"(IV) recommendations that were completed; and

"(V) recommendations that management has subsequently concluded should not or could not be implemented or completed; and

"(iii) total number of reports where final action was not taken and total number of reports where final action was taken, including the total corresponding dollar value of disallowed costs and funds to be put to better use as agreed to in the management decisions;";

(C) by redesignating paragraph (4) as paragraph (3);

(D) in paragraph (3), as so redesignated, by striking "subsection (a)(20)(A)" [enacted by Pub. L. 117–286 as "subsection (b)(20)(A)"] and inserting "subsection (a)(14)(A)" [probably should be "subsection (b)(14)(A)"]; and

(E) by striking paragraph (5) and inserting the following:

"(4) a statement explaining why final action has not been taken with respect to each audit, inspection, and evaluation report in which a management decision has been made but final action has not yet been taken, except that such statement—

"(A) may exclude reports if—

"(i) a management decision was made within the preceding year; or

"(ii) the report is under formal administrative or judicial appeal or management of the establishment has agreed to pursue a legislative solution; and

"(B) shall identify the number of reports in each category so excluded.";

(3) in subsection (d) [enacted by Pub. L. 117–286 as subsection (e) of this section], by striking "committees or subcommittees of Congress" and inserting "congressional committees";

(4) by redesignating subsections (e) and (f) [enacted by Pub. L. 117–286 as subsections (f) and (a) of this section, respectively] as subsections (g) and (h), respectively, and by inserting after subsection (d) the following:

"(e) ADDITIONAL REPORTS.—

"(1) REPORT TO INSPECTOR GENERAL.—The Chairperson of the Integrity Committee of the Council of the Inspectors General on Integrity and Efficiency shall, immediately whenever the Chairperson of the Integrity Committee becomes aware of particularly serious or flagrant problems, abuses, or deficiencies relating to the administration of programs and operations of an Office of Inspector General for which the Integrity Committee may receive, review, and refer for investigation allegations of wrongdoing under section 11(d), submit a report to the Inspector General who leads the Office at which the serious or flagrant problems, abuses, or deficiencies were alleged.

"(2) REPORT TO PRESIDENT, CONGRESS, AND THE ESTABLISHMENT.—Not later than 7 days after the date on which an Inspector General receives a report submitted under paragraph (1), the Inspector General shall submit to the President, the appropriate congressional committees, and the head of the establishment—

"(A) the report received under paragraph (1); and

"(B) a report by the Inspector General containing any comments the Inspector General determines appropriate.";

(5) by inserting after subsection (e), as added by section "5625" of title LII of Pub. L. 117–263 [probably should be section "5235"], the following:

"(f)(1) Except as provided in paragraph (2), not later than 15 days after an Inspector General is removed, placed on paid or unpaid nonduty status, or transferred to another position or location within an establishment, the officer or employee performing the functions and duties of the Inspector General temporarily in an acting capacity shall submit to the appropriate congressional committees information regarding work being conducted by the Office as of the date on which the Inspector General was removed, placed on paid or unpaid non-duty status, or transferred, which shall include—

"(A) for each investigation—

"(i) the type of alleged offense;

"(ii) the fiscal quarter in which the Office initiated the investigation;

"(iii) the relevant Federal agency, including the relevant component of that Federal agency for any Federal agency listed in section 901(b) of title 31, United States Code, under investigation or affiliated with the individual or entity under investigation; and

"(iv) whether the investigation is administrative, civil, criminal, or a combination thereof, if known; and

"(B) for any work not described in subparagraph (A)—

"(i) a description of the subject matter and scope;

"(ii) the relevant agency, including the relevant component of that Federal agency, under review;

"(iii) the date on which the Office initiated the work; and

"(iv) the expected time frame for completion.

"(2) With respect to an inspector general of an element of the intelligence community specified in section 8G(d)(2) of the Inspector General Act of 1978 (5 U.S.C. App.), the submission required by paragraph (1) shall only be made to the committees of Congress specified in section 8G(d)(2)(E)." [section 8G(d)(2) of the Inspector General Act of 1978 restated by Pub. L. 117–286 as section 415(d)(2) of this title];

(6) by adding at the end of subsection (g) [corresponding to subsection (f) of this section], as redesignated by section "5625" of title LII of Pub. L. 117–263 [probably should be section "5235"] the following:

"(6)(A) Except as provided in subparagraph (B), if an audit, evaluation, inspection, or other non-investigative report prepared by an Inspector General specifically identifies a specific non-governmental organization or business entity, whether or not the non-governmental organization or business entity is the subject of that audit, evaluation, inspection, or non-investigative report—

"(i) the Inspector General shall notify the non-governmental organization or business entity;

"(ii) the non-governmental organization or business entity shall have—

"(I) 30 days to review the audit, evaluation, inspection, or non-investigative report beginning on the date of publication of the audit, evaluation, inspection, or non-investigative report; and

"(II) the opportunity to submit a written response for the purpose of clarifying or providing additional context as it directly relates to each instance wherein an audit, evaluation, inspection, or non-investigative report specifically identifies that non-governmental organization or business entity; and

"(iii) if a written response is submitted under clause (ii)(II) within the 30-day period described in clause (ii)(I)—

"(I) the written response shall be attached to the audit, evaluation, inspection, or non-investigative report; and

"(II) in every instance where the report may appear on the public-facing website of the Inspector General, the website shall be updated in order to access a version of the audit, evaluation, inspection, or non-investigative report that includes the written response.

"(B) Subparagraph (A) shall not apply with respect to a non-governmental organization or business entity that refused to provide information or assistance sought by an Inspector General during the creation of the audit, evaluation, inspection, or non-investigative report.

"(C) An Inspector General shall review any written response received under subparagraph (A) for the purpose of preventing the improper disclosure of classified information or other non-public information, consistent with applicable laws, rules, and regulations, and, if necessary, redact such information."; and

(7) by redesignating subsection (h) [corresponding to subsection (a) of this section], as redesignated by section "5625" of title LII of Pub. L. 117–263 [probably should be section "5235"], as subsection (i) and by inserting after subsection (g), as redesignated by section "5625" of title LII of Pub. L. 117–263 [probably should be section "5235"], the following:

"(h) If an Office has published any portion of the report or information required under subsection (a) to the website of the Office or on oversight.gov, the Office may elect to provide links to the relevant webpage or website in the report of the Office under subsection (a) in lieu of including the information in that report." [subsection (a) restated by Pub. L. 117–286 as subsection (b) of this section]

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
405	5 U.S.C. App. (IGA §5)	Pub. L. 95–452, §5, Oct. 12, 1978, 92 Stat. 1103; Pub. L. 97–252, title XI, §1117(c), Sept. 8, 1982, 96 Stat. 752; Pub. L. 100–504, title I, §§102(g), 106, Oct. 18, 1988, 102 Stat. 2521, 2525; Pub. L. 104–208, div. A, title I, §101(f) [title VIII, §805(c)], Sept. 30, 1996, 110 Stat. 3009–314, 3009-393; Pub. L. 110–409, §12, Oct. 14, 2008, 122 Stat. 4315; Pub. L. 111–203, title IX, §989C, July 21, 2010, 124 Stat. 1945; Pub. L. 114–317, §§4(c), 7(d)(2)(B), (C), Dec. 16, 2016, 130 Stat. 1600, 1606; Pub. L. 115–192, §2(c), June 25, 2018, 132 Stat. 1503; Pub. L. 116–92, div. A, title XVII, §1710, Dec. 20, 2019, 133 Stat. 1801.

In subsection (b)(6), the words "inspection report, and evaluation report" are substituted for "inspection reports, and evaluation reports" to correct typographical errors in the law.

In subsection (b)(10) (matter before subparagraph (A)), the words "inspection report, and evaluation report" are substituted for "inspection reports, and evaluation reports" to correct typographical errors in the law.

In subsection (b)(10), at the end of subparagraph (C), a semicolon is substituted for the period to correct a typographical error in the law.

In subsection (b)(13), the parenthetical "(Public Law 104–208, Sec. 101(f) [title VIII], 31 U.S.C. 3512 note)" is inserted after "section 804(b) of the Federal Financial Management Improvement Act of 1996" for clarity.

Editorial Notes

References in Text

The General Schedule, referred to in subsec. (a)(6)(A), is set out under section 5332 of this title.

Commissioned officer pay grades O–6 and above, referred to in subsec. (a)(6)(B), is described in section 201 of Title 37, Pay and Allowances of the Uniformed Services, and is set out under section 5332 of this title.

Section 804(b) of the Federal Financial Management Improvement Act of 1996, referred to in subsec. (b)(13), is section 101(f) [title VIII, §804(b)] of title I of Pub. L. 104–208, Sept. 30, 1996, 110 Stat. 3009–314, 3009-392, which is set out in a note under section 3512 of Title 31, Money and Finance.

Amendments

2024—Subsec. (c)(5), (6). Pub. L. 118–159 added par. (5) and redesignated former par. (5) as (6).

Statutory Notes and Related Subsidiaries

Retroactive Applicability

Pub. L. 117–263, div. E, title LII, §5274(b), Dec. 23, 2022, 136 Stat. 3245, provided that: "During the 30-day period beginning on the date of enactment of this Act [Dec. 23, 2022]—

"(1) the amendment made by subsection (a) [adding par. (6) to section 5(g) of Pub. L. 95–452 (restated as subsec. (f) of this section), see Amendments Not Shown in Text note above] shall apply upon the request of a non-governmental organization or business entity named in an audit, evaluation, inspection, or other non-investigative report prepared on or after January 1, 2019; and

"(2) any written response submitted under clause (iii) of section 5(g)(6)(A) of the Inspector General Act of 1978 (5 U.S.C. App.), as added by subsection (a), with respect to such an audit, evaluation, inspection, or other non-investigative report shall attach to the original report in the manner described in that clause."

Corrective Responses by Heads of Certain Establishments to Deficiencies Identified by Inspectors General

Pub. L. 111–203, title IX, §989H, July 21, 2010, 124 Stat. 1948, provided that: "The Chairman of the Board of Governors of the Federal Reserve System, the Chairman of the Commodity Futures Trading Commission, the Chairman of the National Credit Union Administration, the Director of the Pension Benefit Guaranty Corporation, and the Chairman of the Securities and Exchange Commission shall each—

"(1) take action to address deficiencies identified by a report or investigation of the Inspector General of the establishment concerned; or

"(2) certify to both Houses of Congress that no action is necessary or appropriate in connection with a deficiency described in paragraph (1)."

Disclosure of Government Contractor Audit Findings

Pub. L. 110–181, div. A, title VIII, §845, Jan. 28, 2008, 122 Stat. 240, as amended by Pub. L. 117–286, §4(b)(8), Dec. 27, 2022, 136 Stat. 4343, provided that:

"(a) Required Annex on Significant Audit Findings.—

"(1) In general.—Each Inspector General appointed under chapter 4 of title 5, United States Code, shall submit, as part of the semiannual report submitted to Congress pursuant to section 5 of such Act, an annex on final, completed contract audit reports issued to the contracting activity containing significant audit findings issued during the period covered by the semiannual report concerned.

"(2) Elements.—Such annex shall include—

"(A) a list of such contract audit reports;

"(B) for each audit report, a brief description of the nature of the significant audit findings in the report; and

"(C) for each audit report, the specific amounts of costs identified as unsupported, questioned, or disallowed.

"(3) Information exempt from public disclosure.—(A) Nothing in this subsection shall be construed to require the release of information to the public that is exempt from public disclosure under section 552(b) of title 5, United States Code.

"(B) For each element required by paragraph (2), the Inspector General concerned shall note each instance where information has been redacted in accordance with the requirements of section 552(b) of title 5, United States Code, and submit an unredacted annex to the committees listed in subsection (d)(2) within 7 days after the issuance of the semiannual report.

"(b) Defense Contract Audit Agency Included.—For purposes of subsection (a), audits of the Defense Contract Audit Agency shall be included in the annex provided by the Inspector General of the Department of Defense if they include significant audit findings.

"(c) Exception.—Subsection (a) shall not apply to an Inspector General if no audits described in such subsection were issued during the covered period.

"(d) Submission of Individual Audits.—

"(1) Requirement.—The head of each Federal department or agency shall provide, within 14 days after a request in writing by the chairman or ranking member of any committee listed in paragraph (2), a full and unredacted copy of any audit described in subsection (a). Such copy shall include an identification of information in the audit exempt from public disclosure under section 552(b) of title 5, United States Code.

"(2) Committees.—The committees listed in this paragraph are the following:

"(A) The Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives.

"(B) The Committee on Homeland Security and Governmental Affairs of the Senate.

"(C) The Committees on Appropriations of the House of Representatives and the Senate.

"(D) With respect to the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and House of Representatives.

"(E) The Committees of primary jurisdiction over the agency or department to which the request is made.

"(e) Classified Information.—Nothing in this section shall be interpreted to require the handling of classified information or information relating to intelligence sources and methods in a manner inconsistent with any law, regulation, executive order, or rule of the House of Representatives or of the Senate relating to the handling or protection of such information.

"(f) Definitions.—In this section:

"(1) Significant audit findings.—The term 'significant audit findings' includes—

"(A) unsupported, questioned, or disallowed costs in an amount in excess of $10,000,000; or

"(B) other findings that the Inspector General of the agency or department concerned determines to be significant.

"(2) Contract.—The term 'contract' includes a contract, an order placed under a task or delivery order contract, or a subcontract."

Prompt Management Decisions and Implementation of Audit Recommendations

Pub. L. 103–355, title VI, §6009, Oct. 13, 1994, 108 Stat. 3367, as amended by Pub. L. 104–106, div. A, title VIII, §810, Feb. 10, 1996, 110 Stat. 394; Pub. L. 117–286, §4(b)(9), Dec. 27, 2022, 136 Stat. 4343, provided that:

"(a) Management Decisions.—(1) The head of a Federal agency shall make management decisions on all findings and recommendations set forth in an audit report of the inspector general of the agency within a maximum of six months after the issuance of the report.

"(2) The head of a Federal agency shall make management decisions on all findings and recommendations set forth in an audit report of any auditor from outside the Federal Government within a maximum of six months after the date on which the head of the agency receives the report.

"(b) Completion of Final Action.—The head of a Federal agency shall complete final action on each management decision required with regard to a recommendation in an inspector general's report under subsection (a)(1) within 12 months after the date of the inspector general's report. If the head of the agency fails to complete final action with regard to a management decision within the 12-month period, the inspector general concerned shall identify the matter in each of the inspector general's semiannual reports pursuant to section 405(b)(3) of title 5, United States Code, until final action on the management decision is completed."

§406. Authority of Inspector General

(a) In General.—In addition to the authority otherwise provided by this chapter, each Inspector General, in carrying out the provisions of this chapter, is authorized—

(1)(A) to have timely access to all records, reports, audits, reviews, documents, papers, recommendations, or other materials available to the applicable establishment which relate to the programs and operations with respect to which that Inspector General has responsibilities under this chapter;

(B) to have access under subparagraph (A) notwithstanding any other provision of law, except pursuant to any provision of law enacted by Congress that expressly—

(i) refers to the Inspector General; and

(ii) limits the right of access of the Inspector General; and

(C) except as provided in subsection (i), with regard to Federal grand jury materials protected from disclosure pursuant to rule 6(e) of the Federal Rules of Criminal Procedure, to have timely access to such information if the Attorney General grants the request in accordance with subsection (h);

(2) to make such investigations and reports relating to the administration of the programs and operations of the applicable establishment as are, in the judgment of the Inspector General, necessary or desirable;

(3) to request such information or assistance as may be necessary for carrying out the duties and responsibilities provided by this chapter from any Federal, State, or local governmental agency or unit thereof;

(4) to require by subpoena the production of all information, documents, reports, answers, records, accounts, papers, and other data in any medium (including electronically stored information), as well as any tangible thing and documentary evidence necessary in the performance of the functions assigned by this chapter, which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court, but procedures other than subpoenas shall be used by the Inspector General to obtain documents and information from Federal agencies;

(5) to administer to or take from any person an oath, affirmation, or affidavit, whenever necessary in the performance of the functions assigned by this chapter, which oath, affirmation, or affidavit when administered or taken by or before an employee of an Office of Inspector General designated by the Inspector General shall have the same force and effect as if administered or taken by or before an officer having a seal;

(6) to have direct and prompt access to the head of the establishment involved when necessary for any purpose pertaining to the performance of functions and responsibilities under this chapter;

(7) to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office subject to the provisions of this title, governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of this title relating to classification and General Schedule pay rates;

(8) to obtain services as authorized by section 3109 of this title, at daily rates not to exceed the maximum rate payable under section 5376 of this title; and

(9) to the extent and in such amounts as may be provided in advance by appropriations Acts, to enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and to make such payments as may be necessary to carry out the provisions of this chapter.

(b) Public Disclosure Otherwise Prohibited by Law.—Nothing in this section shall be construed as authorizing an Inspector General to publicly disclose information otherwise prohibited from disclosure by law.

(c) Requests for Information.—

(1) Compliance in general.—Upon request of an Inspector General for information or assistance under subsection (a)(3), the head of any Federal agency involved shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the Federal agency from which the information is requested, furnish to the Inspector General, or to an authorized designee, the requested information or assistance.

(2) Unreasonable refusal.—Whenever information or assistance requested under subsection (a)(1) or (a)(3) is, in the judgment of an Inspector General, unreasonably refused or not provided, the Inspector General shall report the circumstances to the head of the establishment involved without delay.

(d) Office Space and Supplies.—Each head of an establishment shall provide the Office within the establishment with appropriate and adequate office space at central and field office locations of the establishment, together with such equipment, office supplies, and communications facilities and services as may be necessary for the operation of the offices, and shall provide necessary maintenance services for the offices and the equipment and facilities provided.

(e) Applying Certain Provisions.—

(1) Each office considered separate agency.—

(A) For purposes of applying the provisions of law identified in subparagraph (B)—

(i) each Office of Inspector General shall be considered to be a separate agency; and

(ii) the Inspector General who is the head of an office referred to in clause (i) shall, with respect to that office, have the functions, powers, and duties of an agency head or appointing authority under such provisions.

(B) This paragraph applies with respect to the following provisions of this title:

(i) Subchapter II of chapter 35.

(ii) Sections 8335(b), 8336, 8344, 8414, 8425(b), and 8468.

(iii) All provisions relating to the Senior Executive Service (as determined by the Office of Personnel Management), subject to paragraph (2).

(2) Applying section 4507(b).—For purposes of applying section 4507(b) of this title, paragraph (1)(A)(ii) shall be applied by substituting "the Council of the Inspectors General on Integrity and Efficiency (established by section 424 of this title) shall" for "the Inspector General who is the head of an office referred to in clause (i) shall, with respect to that office,".

(f) Additional Authority.—

(1) In general.—In addition to the authority otherwise provided by this chapter, each Inspector General, any Assistant Inspector General for Investigations under such an Inspector General, and any special agent supervised by such an Assistant Inspector General may be authorized by the Attorney General to—

(A) carry a firearm while engaged in official duties as authorized under this chapter or other statute, or as expressly authorized by the Attorney General;

(B) make an arrest without a warrant while engaged in official duties as authorized under this chapter or other statute, or as expressly authorized by the Attorney General, for any offense against the United States committed in the presence of such Inspector General, Assistant Inspector General, or agent, or for any felony cognizable under the laws of the United States if such Inspector General, Assistant Inspector General, or agent has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; and

(C) seek and execute warrants for arrest, search of a premises, or seizure of evidence issued under the authority of the United States upon probable cause to believe that a violation has been committed.

(2) Determination.—The Attorney General may authorize exercise of the powers under this subsection only upon an initial determination that—

(A) the affected Office of Inspector General is significantly hampered in the performance of responsibilities established by this chapter as a result of the lack of such powers;

(B) available assistance from other law enforcement agencies is insufficient to meet the need for such powers; and

(C) adequate internal safeguards and management procedures exist to ensure proper exercise of such powers.

(3) Exemptions from requirement of initial determination of eligibility.—The Inspector General offices of the Department of Commerce, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Department of the Interior, Department of Justice, Department of Labor, Department of State, Department of Transportation, Department of the Treasury, Department of Veterans' Affairs, Agency for International Development, Environmental Protection Agency, Federal Deposit Insurance Corporation, Federal Emergency Management Agency, General Services Administration, National Aeronautics and Space Administration, Nuclear Regulatory Commission, Office of Personnel Management, Railroad Retirement Board, Small Business Administration, Social Security Administration, and the Tennessee Valley Authority are exempt from the requirement of paragraph (2) for an initial determination of eligibility by the Attorney General.

(4) Guidelines.—The Attorney General shall promulgate, and revise as appropriate, guidelines which shall govern the exercise of the law enforcement powers established under paragraph (1).

(5) Rescinding or suspending powers.—

(A) Powers authorized for an office of inspector general.—Powers authorized for an Office of Inspector General under paragraph (1) may be rescinded or suspended upon a determination by the Attorney General that any of the requirements under paragraph (2) is no longer satisfied or that the exercise of authorized powers by that Office of Inspector General has not complied with the guidelines promulgated by the Attorney General under paragraph (4).

(B) Powers authorized to be exercised by an individual.—Powers authorized to be exercised by any individual under paragraph (1) may be rescinded or suspended with respect to that individual upon a determination by the Attorney General that such individual has not complied with guidelines promulgated by the Attorney General under paragraph (4).

(6) Not reviewable.—A determination by the Attorney General under paragraph (2) or (5) shall not be reviewable in or by any court.

(7) Memorandum of understanding.—To ensure the proper exercise of the law enforcement powers authorized by this subsection, the Offices of Inspector General described under paragraph (3) shall, not later than 180 days after November 25, 2002, collectively enter into a memorandum of understanding to establish an external review process for ensuring that adequate internal safeguards and management procedures continue to exist within each Office and within any Office that later receives an authorization under paragraph (2). The review process shall be established in consultation with the Attorney General, who shall be provided with a copy of the memorandum of understanding that establishes the review process. Under the review process, the exercise of the law enforcement powers by each Office of Inspector General shall be reviewed periodically by another Office of Inspector General or by a committee of Inspectors General. The results of each review shall be communicated in writing to the applicable Inspector General and to the Attorney General.

(8) Not a limitation on other law enforcement powers.—No provision of this subsection shall limit the exercise of law enforcement powers established under any other statutory authority, including United States Marshals Service special deputation.

(9) Definition of inspector general.—In this subsection, the term "Inspector General" means an Inspector General appointed under section 403 of this title or an Inspector General appointed under section 415 of this title.

(g) Budgets.—

(1) Inspector general's budget estimate and request transmitted to head of establishment or designated federal entity.—For each fiscal year, an Inspector General shall transmit a budget estimate and request to the head of the establishment or designated Federal entity to which the Inspector General reports. The budget request shall specify the aggregate amount of funds requested for such fiscal year for the operations of that Inspector General and shall specify the amount requested for all training needs, including a certification from the Inspector General that the amount requested satisfies all training requirements for the Inspector General's office for that fiscal year, and any resources necessary to support the Council of the Inspectors General on Integrity and Efficiency. Resources necessary to support the Council of the Inspectors General on Integrity and Efficiency shall be specifically identified and justified in the budget request.

(2) Head of establishment or designated federal entity's proposed budget transmitted to president.—In transmitting a proposed budget to the President for approval, the head of each establishment or designated Federal entity shall include—

(A) an aggregate request for the Inspector General;

(B) amounts for Inspector General training;

(C) amounts for support of the Council of the Inspectors General on Integrity and Efficiency; and

(D) any comments of the affected Inspector General with respect to the proposal.

(3) President's budget submitted to congress.—The President shall include in each budget of the United States Government submitted to Congress—

(A) a separate statement of the budget estimate prepared in accordance with paragraph (1);

(B) the amount requested by the President for each Inspector General;

(C) the amount requested by the President for training of Inspectors General;

(D) the amount requested by the President for support for the Council of the Inspectors General on Integrity and Efficiency; and

(E) any comments of the affected Inspector General with respect to the proposal if the Inspector General concludes that the budget submitted by the President would substantially inhibit the Inspector General from performing the duties of the office.

(h) Federal Grand Jury Materials.—

(1) Notification of attorney general of request.—If the Inspector General of an establishment submits a request to the head of the establishment for Federal grand jury materials pursuant to subsection (a)(1), the head of the establishment shall immediately notify the Attorney General of such request.

(2) Determination by attorney general.—Not later than 15 days after the date on which a request is submitted to the Attorney General under paragraph (1), the Attorney General shall determine whether to grant or deny the request for Federal grand jury materials and shall immediately notify the head of the establishment of such determination. The Attorney General shall grant the request unless the Attorney General determines that granting access to the Federal grand jury materials would be likely to—

(A) interfere with an ongoing criminal investigation or prosecution;

(B) interfere with an undercover operation;

(C) result in disclosure of the identity of a confidential source, including a protected witness;

(D) pose a serious threat to national security; or

(E) result in significant impairment of the trade or economic interests of the United States.

(3) Comments.—

(A) Requirement to inform inspector general of determination by attorney general.—The head of the establishment shall inform the Inspector General of the establishment of the determination made by the Attorney General with respect to the request for Federal grand jury materials.

(B) Submission of comments by inspector general.—The Inspector General of the establishment described under subparagraph (A) may submit comments on the determination submitted pursuant to such subparagraph to the committees listed under paragraph (4) that the Inspector General considers appropriate.

(4) Statement of attorney general regarding denial of request.—Not later than 30 days after notifying the head of an establishment of a denial pursuant to paragraph (2), the Attorney General shall submit a statement that the request for Federal grand jury materials by the Inspector General was denied and the reason for the denial to each of the following:

(A) The Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate.

(B) The Committee on Oversight and Reform, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.

(C) Other appropriate committees and subcommittees of Congress.

(i) Non-applicability of Certain Provisions to Requests From Inspector General of Department of Justice.—Subsections (a)(1)(C) and (h) shall not apply to requests from the Inspector General of the Department of Justice.

(j) Computerized Comparisons.—

(1) Definitions.—In this subsection, the terms "agency", "matching program", "record", and "system of records" have the meanings given those terms in section 552a(a) of title 5.

(2) Non-consideration of computerized comparisons as matching programs.—For purposes of section 552a of title 5 or any other provision of law, a computerized comparison of two or more automated Federal systems of records, or a computerized comparison of a Federal system of records with other records or non-Federal records, performed by an Inspector General or by an agency in coordination with an Inspector General in conducting an audit, investigation, inspection, evaluation, or other review authorized under this chapter shall not be considered a matching program.

(3) Limitation.—Nothing in this subsection shall be construed to impede the exercise by an Inspector General of any matching program authority established under any other provision of law.

(k) Non-Applicability of Federal Information Policy.—Subchapter I of chapter 35 of title 44 shall not apply to the collection of information during the conduct of an audit, investigation, inspection, evaluation, or other review conducted by the Council of the Inspectors General on Integrity and Efficiency or any Office of Inspector General, including any Office of Special Inspector General.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4218.)

Amendments Not Shown in Text

This section was derived from section 6 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 6 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §§5261, 5272(2), Dec. 23, 2022, 136 Stat. 3238, 3239, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4218, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 6 of Pub. L. 95–452 was amended as follows:

(1) in subsection (c), by adding at the end the following:

"(3) If the information or assistance that is the subject of a report under paragraph (2) is not provided to the Inspector General by the date that is 30 days after the report is made, the Inspector General shall submit a notice that the information or assistance requested has not been provided by the head of the establishment involved or the head of the Federal agency involved, as applicable, to the appropriate congressional committees."; and

(2) in subsection (h)(4)—

(A) in subparagraph (B), by striking "Government"; and

(B) by amending subparagraph (C) to read as follows:

"(C) Any other relevant congressional committee or subcommittee of jurisdiction."

The word "Government" did not appear before "Reform" in the text of subsection (h)(4)(B) as enacted by Pub. L. 117–286. See Historical and Revision note below.

For definition of "appropriate congressional committees" as seen in the above amendment by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
406	5 U.S.C. App. (IGA §6)	Pub. L. 95–452, §6, Oct. 12, 1978, 92 Stat. 1104; Pub. L. 100–504, title I, §§107, 110(a), Oct. 18, 1988, 102 Stat. 2528, 2529; Pub. L. 107–296, title VIII, §812(a), Nov. 25, 2002, 116 Stat. 2222; Pub. L. 110–409, §§8, 9, 11, 14(a), Oct. 14, 2008, 122 Stat. 4313–4316; Pub. L. 114–317, §§2, 5, 7(d)(2)(D), (3)(B), Dec. 16, 2016, 130 Stat. 1595, 1603, 1606.

In subsection (a)(8), the words "maximum rate payable under section 5376 of this title" are substituted for "equivalent rate prescribed for grade GS–18 of the General Schedule by section 5332 of title 5, United States Code" for clarity and because of section 101(c) of the Federal Employees Pay Comparability Act of 1990 (enacted by section 529 of Public Law 101–509 (5 U.S.C. 5376 note)).

In subsection (f)(7), the date "November 25, 2002" is substituted for "the date of enactment of this subsection" for clarity. Subsection (f) (formerly subsection (e)) of section 6 of the Inspector General Act of 1978 was enacted on November 25, 2002, by section 812(a) of the Homeland Security Act of 2002 (Public Law 107–296, 116 Stat. 2222).

In subsection (h)(4)(B), the words "Committee on Oversight and Reform" are substituted for "Committee on Oversight and Government Reform" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

Editorial Notes

References in Text

The Federal Rules of Criminal Procedure, referred to in subsec. (a)(1)(C), are set out in the Appendix to Title 18, Crimes and Criminal Procedure.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Establishment of Inspectors General Criminal Investigator Academy and Inspectors General Forensic Laboratory

Pub. L. 106–422, §2, Nov. 1, 2000, 114 Stat. 1873, as amended by Pub. L. 117–286, §4(b)(10), Dec. 27, 2022, 136 Stat. 4343, provided that:

"(a) Inspectors General Criminal Investigator Academy.—

"(1) Establishment.—There is established the Criminal Investigator Academy within the Department of the Treasury. The Criminal Investigator Academy is established for the purpose of performing investigator training services for offices of inspectors general created under chapter 4 of title 5, United States Code.

"(2) Executive director.—The Criminal Investigator Academy shall be administered by an Executive Director who shall report to an inspector general for an establishment as defined in section 401 of title 5, United States Code—

"(A) designated by the President's Council on Integrity and Efficiency; or

"(B) if that council is eliminated, by a majority vote of the inspectors general created under chapter 4 of title 5, United States Code.

"(b) Inspectors General Forensic Laboratory.—

"(1) Establishment.—There is established the Inspectors General Forensic Laboratory within the Department of the Treasury. The Inspectors General Forensic Laboratory is established for the purpose of performing forensic services for offices of inspectors general created under chapter 4 of title 5, United States Code.

"(2) Executive director.—The Inspectors General Forensic Laboratory shall be administered by an Executive Director who shall report to an inspector general for an establishment as defined in section 401 of title 5, United States Code—

"(A) designated by the President's Council on Integrity and Efficiency; or

"(B) if that council is eliminated, by a majority vote of the inspectors general created under chapter 4 of title 5, United States Code.

"(c) Separate Appropriations Account.—[Amended section 1105 of Title 31, Money and Finance.]

"(d) Authorization of Appropriations.—There are authorized to carry out this section such sums as may be necessary for fiscal year 2001 and each fiscal year thereafter."

§407. Complaints by employees

(a) Receipt and Investigation.—The Inspector General may receive and investigate complaints or information from an employee of the establishment concerning the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety.

(b) Prohibition on Disclosure of Identity.—The Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines the disclosure is unavoidable during the course of the investigation.

(c) Prohibition on Reprisal.—Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to that authority, take or threaten to take any action against any employee as a reprisal for making a complaint or disclosing information to an Inspector General, unless the complaint was made or the information disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4224.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
407	5 U.S.C. App. (IGA §7)	Pub. L. 95–452, §7, Oct. 12, 1978, 92 Stat. 1105.

§408. Additional provisions with respect to the Inspector General of the Department of Defense

(a) Inspector General.—A member of the Armed Forces, active or reserve, shall not be appointed Inspector General of the Department of Defense.

(b) Authority of Secretary of Defense.—

(1) In general.—Notwithstanding the last two sentences of section 403(a) of this title, the Inspector General shall be under the authority, direction, and control of the Secretary of Defense with respect to audits or investigations, or the issuance of subpoenas, which require access to information concerning—

(A) sensitive operational plans;

(B) intelligence matters;

(C) counterintelligence matters;

(D) ongoing criminal investigations by other administrative units of the Department of Defense related to national security; or

(E) other matters the disclosure of which would constitute a serious threat to national security.

(2) Authority to prohibit audit or investigation.—With respect to the information described in paragraph (1), the Secretary of Defense may prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, from accessing information described in paragraph (1), or from issuing any subpoena, after the Inspector General has decided to initiate, carry out, or complete such audit or investigation, access such information, or to issue such subpoena, if the Secretary determines that such prohibition is necessary to preserve the national security interests of the United States.

(3) Statement concerning exercise of power.—If the Secretary of Defense exercises any power under paragraph (1) or (2), the Inspector General shall submit a statement concerning that exercise of power within 30 days to the Committee on Armed Services and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Armed Services and the Committee on Oversight and Reform of the House of Representatives and to other appropriate committees or subcommittees of the Congress.

(4) Statement of reasons for exercise of power.—The Secretary shall, within 30 days after submission of a statement under paragraph (3), transmit a statement of the reasons for the exercise of power under paragraph (1) or (2) to the congressional committees specified in paragraph (3) and to other appropriate committees or subcommittees.

(c) Additional Duties and Responsibilities.—In addition to the other duties and responsibilities specified in this chapter, the Inspector General of the Department of Defense shall—

(1) be the principal adviser to the Secretary of Defense for matters relating to the prevention and detection of fraud, waste, and abuse in the programs and operations of the Department;

(2) initiate, conduct, and supervise such audits and investigations in the Department of Defense (including the military departments) as the Inspector General considers appropriate;

(3) provide policy direction for audits and investigations relating to fraud, waste, and abuse and program effectiveness;

(4) investigate fraud, waste, and abuse uncovered as a result of other contract and internal audits, as the Inspector General considers appropriate;

(5) develop policy, monitor and evaluate program performance, and provide guidance with respect to all Department activities relating to criminal investigation programs;

(6) monitor and evaluate the adherence of Department auditors to internal audit, contract audit, and internal review principles, policies, and procedures;

(7) develop policy, evaluate program performance, and monitor actions taken by all components of the Department in response to contract audits, internal audits, internal review reports, and audits conducted by the Comptroller General of the United States;

(8) request assistance as needed from other audit, inspection, and investigative units of the Department of Defense (including military departments);

(9) give particular regard to the activities of the internal audit, inspection, and investigative units of the military departments with a view toward avoiding duplication and ensuring effective coordination and cooperation; and

(10) conduct, or approve arrangements for the conduct of, external peer reviews of Department of Defense audit agencies in accordance with, and in such frequency as provided by, Government auditing standards as established by the Comptroller General of the United States.

(d) Reporting Violations of Chapter 47 of Title 10.—Notwithstanding section 404(d) of this title, the Inspector General of the Department of Defense shall expeditiously report suspected or alleged violations of chapter 47 of title 10 (Uniform Code of Military Justice), to the Secretary of the military department concerned or the Secretary of Defense.

(e) Member of Armed Forces Deemed To Be Employee.—For the purposes of section 407 of this title, a member of the Armed Forces shall be deemed to be an employee of the Department of Defense, except that, when the Coast Guard operates as a service of another department or agency of the Federal Government, a member of the Coast Guard shall be deemed to be an employee of that department or agency.

(f) Reports.—

(1) Reports transmitted to congressional committees.—Each semiannual report prepared by the Inspector General of the Department of Defense under section 405(b) of this title shall be transmitted by the Secretary of Defense to the Committees on Armed Services and on Homeland Security and Governmental Affairs of the Senate and the Committees on Armed Services and on Oversight and Reform of the House of Representatives and to other appropriate committees or subcommittees of Congress. Each report shall include—

(A) information concerning the numbers and types of contract audits conducted by the Department during the reporting period; and

(B) information concerning any Department of Defense audit agency that, during the reporting period, has either received a failed opinion from an external peer review or is overdue for an external peer review required to be conducted in accordance with subsection (c)(10).

(2) Additional reports transmitted to congressional committees.—Any report required to be transmitted by the Secretary of Defense to the appropriate committees or subcommittees of the Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified in section 405(e) of this title, to the congressional committees specified in paragraph (1).

(g) Non-Applicability of Section 1385 of Title 18.—The provisions of section 1385 of title 18,¹ shall not apply to audits and investigations conducted by, under the direction of, or at the request of the Inspector General of the Department of Defense to carry out the purposes of this chapter.

(h) General Counsel to Inspector General of Department of Defense.—

(1) In general.—There is a General Counsel to the Inspector General of the Department of Defense, who shall be appointed by the Inspector General of the Department of Defense.

(2) Duties and functions.—

(A) Notwithstanding section 140(b) of title 10, the General Counsel is the chief legal officer of the Office of the Inspector General.

(B) The Inspector General is the exclusive legal client of the General Counsel.

(C) The General Counsel shall perform such functions as the Inspector General may prescribe.

(D) The General Counsel shall serve at the discretion of the Inspector General.

(3) Office of general counsel.—There is an Office of the General Counsel to the Inspector General of the Department of Defense. The Inspector General may appoint to the Office to serve as staff of the General Counsel such legal counsel as the Inspector General considers appropriate.

(i) Authority To Require Attendance and Testimony of Witnesses.—

(1) Subpoena.—The Inspector General of the Department of Defense is authorized to require by subpoena the attendance and testimony of witnesses as necessary in the performance of functions assigned to the Inspector General by this chapter, except that the Inspector General shall use procedures other than subpoenas to obtain attendance and testimony from Federal employees.

(2) Enforcement.—A subpoena issued under this subsection, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court.

(3) Notification.—The Inspector General shall notify the Attorney General 7 days before issuing any subpoena under this section.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4224.)

Amendments Not Shown in Text

This section was derived from section 8 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §5272(3), Dec. 23, 2022, 136 Stat. 3239, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4224, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8 of Pub. L. 95–452 was amended as follows:

(1) in subsection (b)—

(A) in paragraph (3), by striking "the Committees on Armed Services and Governmental Affairs of the Senate and the Committee on Armed Services and the Committee on Government Reform and Oversight of the House of Representatives and to other appropriate committees or subcommittees of the Congress" and inserting "the appropriate congressional committees, including the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives"; and

(B) in paragraph (4), by striking "and to other appropriate committees or subcommittees"; and

(2) in subsection (f)—

(A) in paragraph (1), by striking "the Committees on Armed Services and on Homeland Security and Governmental Affairs of the Senate and the Committees on Armed Services and on Oversight and Government Reform of the House of Representatives and to other appropriate committees or subcommittees of Congress" and inserting "the appropriate congressional committees, including the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives"; and

(B) in paragraph (2), by striking "committees or subcommittees of the Congress" and inserting "congressional committees".

The text directed to be stricken in subsections (b)(3) and (f)(1) did not appear exactly as quoted in the text enacted by Pub. L. 117–286. See Historical and Revision notes below.

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
408	5 U.S.C. App. (IGA §8)	Pub. L. 95–452, §8, Oct. 12, 1978, 92 Stat. 1105; Pub. L. 97–252, title XI, §1117(b), Sept. 8, 1982, 96 Stat. 751; Pub. L. 100–504, title I, §110(b), Oct. 18, 1988, 102 Stat. 2529; Pub. L. 104–106, div. A, title XV, §1502(f)(6), Feb. 10, 1996, 110 Stat. 510; Pub. L. 106–65, div. A, title X, §1067(17), Oct. 5, 1999, 113 Stat. 775; Pub. L. 110–417, [div. A], title IX, §907, Oct. 14, 2008, 122 Stat. 4569; Pub. L. 111–84, div. A, title X, §1042, Oct. 28, 2009, 123 Stat. 2455; Pub. L. 112–239, div. A, title XVI, §1614, Jan. 2, 2013, 126 Stat. 2066; Pub. L. 114–317, §6(1), Dec. 16, 2016, 130 Stat. 1604.

In subsection (b)(3), the words "Committee on Homeland Security and Governmental Affairs of the Senate" are substituted for "[Committee on] Governmental Affairs of the Senate" on authority of Senate Resolution No. 445, 108th Congress, October 9, 2004 (effective January 4, 2005).

In subsection (b)(3), the words "Committee on Oversight and Reform" are substituted for "Committee on Government Reform and Oversight" on authority of House Resolution No. 5 (106th Congress, January 6, 1999), House Resolution No. 6 (110th Congress, January 5, 2007), and rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

In subsection (c)(9), the word "ensuring" is substituted for "insuring" for clarity.

In subsection (f)(1) (matter before subparagraph (A)), the words "[Committee on] Oversight and Reform" are substituted for "[Committee on] Oversight and Government Reform" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

¹ So in original. The comma probably should not appear.

§409. Special provisions concerning the Agency for International Development

(a) Definition of Agency for International Development.—As used in this chapter, the term "Agency for International Development" includes any successor agency primarily responsible for administering part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.).

(b) Members of Foreign Service.—In addition to the officers and employees provided for in section 406(a)(7) of this title, members of the Foreign Service may, at the request of the Inspector General of the Agency for International Development, be assigned as employees of the Inspector General. Members of the Foreign Service so assigned shall be responsible solely to the Inspector General, and the Inspector General (or the Inspector General's designee) shall prepare the performance evaluation reports for the members assigned as employees of the Inspector General.

(c) Field Offices.—In establishing and staffing field offices pursuant to section 406(d) of this title, the Administrator of the Agency for International Development shall not be bound by overseas personnel ceilings.

(d) Additional Officer.—The Inspector General of the Agency for International Development shall be in addition to the officers provided for in section 624(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2384(a)).

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4227.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
409(a)	5 U.S.C. App. (IGA §8A(f))	Pub. L. 95–452, §8A(f), formerly (h), as added Pub. L. 97–113, title VII, §705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (f), Pub. L. 105–277, div. G, subdiv. A, title XIV, §1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792.
409(b)	5 U.S.C. App. (IGA §8A(c))	Pub. L. 95–452, §8A(c), formerly (d), as added Pub. L. 97–113, title VII, §705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (c), Pub. L. 105–277, div. G, subdiv. A, title XIV, §1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792.
409(c)	5 U.S.C. App. (IGA §8A(d))	Pub. L. 95–452, §8A(d), formerly (e), as added Pub. L. 97–113, title VII, §705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (d), Pub. L. 105–277, div. G, subdiv. A, title XIV, §1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792; Pub. L. 114–317, §7(d)(2)(E), Dec. 16, 2016, 130 Stat. 1606.
409(d)	5 U.S.C. App. (IGA §8A(e))	Pub. L. 95–452, §8A(e), formerly (g), as added Pub. L. 97–113, title VII, §705(a)(3), Dec. 29, 1981, 95 Stat. 1545; redesignated (e), Pub. L. 105–277, div. G, subdiv. A, title XIV, §1422(b)(2)(C), Oct. 21, 1998, 112 Stat. 2681–792.

In subsection (b), the reference to "section 406(a)(7) of this title" is substituted for "section 6(a)(6) of this Act" for clarity and to correct an error in the law. In the source law (section 8A(c) of the Inspector General Act of 1978), the reference to "section 6(a)(6) of this Act" is incorrect. Section 6(a)(6) of the Inspector General Act of 1978 was redesignated as section 6(a)(7) of that Act by section 107(1) of the Inspector General Act Amendments of 1988 (Public Law 100–504, 102 Stat. 2528).

In subsection (c), the words "overseas personnel ceilings" are substituted for "overseas personnel ceilings established under the Monitoring Overseas Direct Employment policy" to eliminate obsolete language. The Monitoring Overseas Direct Employment (MODE) policy was superseded by National Security Decision Directive No. 38 (NSDD–38) (June 2, 1982). (See https://www.state.gov/m/pri/nsdd/45148.htm, last visited December 14, 2017).

Editorial Notes

References in Text

The Foreign Assistance Act of 1961, referred to in subsec. (a), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424. Part I of the Act is classified generally to subchapter I (§2151 et seq.) of chapter 32 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of Title 22 and Tables.

§410. Special provisions concerning the Nuclear Regulatory Commission

(a) Delegation.—The Chairman of the Commission may delegate the authority specified in the 2d sentence of section 403(a) of this title to another member of the Nuclear Regulatory Commission, but shall not delegate such authority to any other officer or employee of the Commission.

(b) Personnel.—Notwithstanding paragraphs (7) and (8) of section 406(a) of this title, the Inspector General of the Nuclear Regulatory Commission is authorized to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office of Inspector General and to obtain the temporary or intermittent services of experts or consultants or an organization of experts or consultants, subject to the applicable laws and regulations that govern such selections, appointments, and employment, and the obtaining of such services, within the Nuclear Regulatory Commission.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4228.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
410	5 U.S.C. App. (IGA §8B)	Pub. L. 95–452, §8B, as added Pub. L. 100–504, title I, §102(f), Oct. 18, 1988, 102 Stat. 2517.

§411. Special provisions concerning the Federal Deposit Insurance Corporation

(a) Delegation.—The Chairperson of the Federal Deposit Insurance Corporation may delegate the authority specified in the 2d sentence of section 403(a) of this title to the Vice Chairperson of the Board of Directors of the Federal Deposit Insurance Corporation, but may not delegate such authority to any other officer or employee of the Corporation.

(b) Personnel.—Notwithstanding paragraphs (7) and (8) of section 406(a) of this title, the Inspector General of the Federal Deposit Insurance Corporation may select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office of Inspector General and may obtain the temporary or intermittent services of experts or consultants or an organization of experts or consultants, subject to the applicable laws and regulations that govern such selections, appointments, and employment, and the obtaining of such services, within the Federal Deposit Insurance Corporation.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4228.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
411	5 U.S.C. App. (IGA §8C)	Pub. L. 95–452, §8C, as added Pub. L. 103–204, §23(a)(2), Dec. 17, 1993, 107 Stat. 2407.

§412. Special provisions concerning the Department of the Treasury

(a) In General.—

(1) Authority of secretary of treasury over certain audits and investigations.—Notwithstanding the 2d sentence and last sentence of section 403(a) of this title, the Inspector General of the Department of the Treasury shall be under the authority, direction, and control of the Secretary of the Treasury with respect to audits or investigations, or the issuance of subpoenas, which require access to sensitive information concerning—

(A) ongoing criminal investigations or proceedings;

(B) undercover operations;

(C) the identity of confidential sources, including protected witnesses;

(D) deliberations and decisions on policy matters, including documented information used as a basis for making policy decisions, the disclosure of which could reasonably be expected to have a significant influence on the economy or market behavior;

(E) intelligence or counterintelligence matters; or

(F) other matters the disclosure of which would constitute a serious threat to national security or to the protection of any person or property authorized protection by section 3056 of title 18, section 3056A of title 18, or any provision of the Presidential Protection Assistance Act of 1976 (Public Law 94–524, 18 U.S.C. 3056 note).

(2) Authority of secretary of treasury to prohibit carrying out or completing certain audits and investigations.—With respect to the information described under paragraph (1), the Secretary of the Treasury may prohibit the Inspector General of the Department of the Treasury from carrying out or completing any audit or investigation, from accessing information described in paragraph (1), or from issuing any subpoena, after such Inspector General has decided to initiate, carry out, or complete such audit or investigation, access such information, or to issue such subpoena, if the Secretary determines that such prohibition is necessary to prevent the disclosure of any information described under paragraph (1) or to prevent significant impairment to the national interests of the United States.

(3) Notification and statement of reasons for exercise of power.—If the Secretary of the Treasury exercises any power under paragraph (1) or (2), the Secretary of the Treasury shall notify the Inspector General of the Department of the Treasury in writing, stating the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General of the Department of the Treasury shall transmit a copy of such notice to the Committee on Homeland Security and Governmental Affairs and the Committee on Finance of the Senate and the Committee on Oversight and Reform and the Committee on Ways and Means of the House of Representatives, and to other appropriate committees or subcommittees of the Congress.

(4) Exception relating to treasury inspector general for tax administration.—The Secretary of the Treasury may not exercise any power under paragraph (1) or (2) with respect to the Treasury Inspector General for Tax Administration.

(b) Oversight Responsibility for Internal Investigations.—

(1) In general.—In carrying out the duties and responsibilities specified in this chapter, the Inspector General of the Department of the Treasury shall have oversight responsibility for the internal investigations performed by the Office of Internal Affairs of the Tax and Trade Bureau. The head of such office shall promptly report to the Inspector General of the Department of the Treasury the significant activities being carried out by such office.

(2) Exercise of duties and responsibilities.—The Inspector General of the Department of the Treasury shall exercise all duties and responsibilities of an Inspector General for the Department of the Treasury other than the duties and responsibilities exercised by the Treasury Inspector General for Tax Administration.

(3) Establishment of procedures.—The Secretary of the Treasury shall establish procedures under which the Inspector General of the Department of the Treasury and the Treasury Inspector General for Tax Administration will—

(A) determine how audits and investigations are allocated in cases of overlapping jurisdiction; and

(B) provide for coordination, cooperation, and efficiency in the conduct of such audits and investigations.

(c) Audits and Investigations in Department of Treasury.—Notwithstanding subsection (b), the Inspector General of the Department of the Treasury may initiate, conduct and supervise such audits and investigations in the Department of the Treasury (including the bureau referred to in subsection (b)) as the Inspector General of the Department of the Treasury considers appropriate.

(d) Authority To Provide Written Notice to Tax and Trade Bureau.—If the Inspector General of the Department of the Treasury initiates an audit or investigation under subsection (c) concerning the bureau referred to in subsection (b), the Inspector General of the Department of the Treasury may provide the head of the office of such bureau referred to in subsection (b) with written notice that the Inspector General of the Department of the Treasury has initiated such an audit or investigation. If the Inspector General of the Department of the Treasury issues a notice under the preceding sentence, no other audit or investigation shall be initiated into the matter under audit or investigation by the Inspector General of the Department of the Treasury, and any other audit or investigation of such matter shall cease.

(e) Treasury Inspector General for Tax Administration.—

(1) Access to returns and return information.—The Treasury Inspector General for Tax Administration shall have access to returns and return information, as defined in section 6103(b) of the Internal Revenue Code of 1986 (26 U.S.C. 6103(b)), only in accordance with the provisions of section 6103 of the Internal Revenue Code of 1986 (26 U.S.C. 6103) and this chapter.

(2) Standardized records and accountings.—The Internal Revenue Service shall maintain the same system of standardized records or accountings of all requests from the Treasury Inspector General for Tax Administration for inspection or disclosure of returns and return information (including the reasons for and dates of such requests), and of returns and return information inspected or disclosed pursuant to such requests, as described under section 6103(p)(3)(A) of the Internal Revenue Code of 1986 (26 U.S.C. 6103(p)(3)(A)). Such system of standardized records or accountings shall also be available for examination in the same manner as provided under section 6103(p)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 6103(p)(3)).

(3) Safeguards and conditions.—The Treasury Inspector General for Tax Administration shall be subject to the same safeguards and conditions for receiving returns and return information as are described under section 6103(p)(4) of the Internal Revenue Code of 1986 (26 U.S.C. 6103(p)(4)).

(f) Audit or Investigation Shall Not Affect Final Decision Under Section 6406 of Internal Revenue Code of 1986.—An audit or investigation conducted by the Inspector General of the Department of the Treasury or the Treasury Inspector General for Tax Administration shall not affect a final decision of the Secretary of the Treasury or the Secretary's delegate under section 6406 of the Internal Revenue Code of 1986 (26 U.S.C. 6406).

(g) Reports.—

(1) Reports to congressional committees.—Any report required to be transmitted by the Secretary of the Treasury to the appropriate committees or subcommittees of the Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified under such section, to the Committee on Homeland Security and Governmental Affairs and the Committee on Finance of the Senate and the Committee on Oversight and Reform and the Committee on Ways and Means of the House of Representatives.

(2) Reports made by treasury inspector general for tax administration to congressional committees.—Any report made by the Treasury Inspector General for Tax Administration that is required to be transmitted by the Secretary of the Treasury to the appropriate committees or subcommittees of Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified under such subsection, to the Internal Revenue Service Oversight Board and the Commissioner of Internal Revenue.

(h) Duties and Responsibilities of Treasury Inspector General for Tax Administration.—The Treasury Inspector General for Tax Administration shall exercise all duties and responsibilities of an Inspector General of an establishment with respect to the Department of the Treasury and the Secretary of the Treasury on all matters relating to the Internal Revenue Service. The Treasury Inspector General for Tax Administration shall have sole authority under this chapter to conduct an audit or investigation of the Internal Revenue Service Oversight Board and the Chief Counsel for the Internal Revenue Service.

(i) Ability To Lead Large and Complex Organization.—In addition to the requirements of the 1st sentence of section 403(a) of this title, the Treasury Inspector General for Tax Administration should have demonstrated ability to lead a large and complex organization.

(j) Prohibition on Appointment of Employee of Internal Revenue Service to Certain Positions.—An individual appointed to the position of Treasury Inspector General for Tax Administration, the Assistant Inspector General for Auditing of the Office of the Treasury Inspector General for Tax Administration under section 403(d)(1)(B)(i) of this title (or, effective November 27, 2017, section 403(d)(2)(B)(i) of this title), the Assistant Inspector General for Investigations of the Office of the Treasury Inspector General for Tax Administration under section 403(d)(1)(B)(ii) of this title (or, effective November 27, 2017, section 403(d)(2)(B)(ii) of this title), or any position of Deputy Inspector General of the Office of the Treasury Inspector General for Tax Administration may not be an employee of the Internal Revenue Service—

(1) during the 2-year period preceding the date of appointment to such position; or

(2) during the 5-year period following the date such individual ends service in such position.

(k) Additional Duties and Responsibilities.—

(1) In general.—In addition to the duties and responsibilities exercised by an inspector general of an establishment, the Treasury Inspector General for Tax Administration—

(A) shall have the duty to enforce criminal provisions under section 7608(b) of the Internal Revenue Code of 1986 (26 U.S.C. 7608(b));

(B) in addition to the functions authorized under section 7608(b)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 7608(b)(2)), may carry firearms;

(C) shall be responsible for protecting the Internal Revenue Service against external attempts to corrupt or threaten employees of the Internal Revenue Service, but shall not be responsible for the conducting of background checks and the providing of protection to the Commissioner of Internal Revenue; and

(D) may designate any employee in the Office of the Treasury Inspector General for Tax Administration to enforce such laws and perform such functions referred to under subparagraphs (A), (B), and (C).

(2) Reporting violations.—

(A) Reporting reasonable grounds to believe a violation of federal criminal law occurred.—In performing a law enforcement function under paragraph (1), the Treasury Inspector General for Tax Administration shall report any reasonable grounds to believe there has been a violation of Federal criminal law to the Attorney General at an appropriate time as determined by the Treasury Inspector General for Tax Administration, notwithstanding section 404(d) of this title.

(B) Reporting problems, abuses, or deficiencies.—In the administration of section 405(e) of this title and subsection (g)(2) of this section, the Secretary of the Treasury may transmit the required report with respect to the Treasury Inspector General for Tax Administration at an appropriate time as determined by the Secretary, if the problem, abuse, or deficiency relates to—

(i) the performance of a law enforcement function under paragraph (1); and

(ii) sensitive information concerning matters under subsection (a)(1)(A) through (F).

(3) Limitation.—Nothing in this subsection shall be construed to affect the authority of any other person to carry out or enforce any provision specified in paragraph (1).

(l) Request for Audit or Investigation Relating to Internal Revenue Service.—

(1) In general.—The Commissioner of Internal Revenue or the Internal Revenue Service Oversight Board may request, in writing, the Treasury Inspector General for Tax Administration to conduct an audit or investigation relating to the Internal Revenue Service. If the Treasury Inspector General for Tax Administration determines not to conduct such audit or investigation, the Inspector General shall timely provide a written explanation for such determination to the person making the request.

(2) Reports.—

(A) Final report of audit.—Any final report of an audit conducted by the Treasury Inspector General for Tax Administration shall be timely submitted by the Inspector General to the Commissioner of Internal Revenue and the Internal Revenue Service Oversight Board.

(B) Periodic list of investigations for which final report completed.—The Treasury Inspector General for Tax Administration shall periodically submit to the Commissioner and Board a list of investigations for which a final report has been completed by the Inspector General and shall provide a copy of any such report upon request of the Commissioner or Board.

(C) Applicability.—This paragraph applies regardless of whether the applicable audit or investigation is requested under paragraph (1).

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4229.)

Amendments Not Shown in Text

This section was derived from section 8D of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8D of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §5272(4), Dec. 23, 2022, 136 Stat. 3240, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4229, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8D of Pub. L. 95–452 was amended as follows:

(1) in subsection (a)(3), by striking "Committees on Governmental Affairs and Finance of the Senate and the Committees on Government Operations and Ways and Means of the House of Representatives, and to other appropriate committees or subcommittees of the Congress" and inserting "appropriate congressional committees, including the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives"; and

(2) in subsection (g)—

(A) in paragraph (1)—

(i) by striking "committees or subcommittees of the Congress" and inserting "congressional committees"; and

(ii) by striking "Committees on Governmental Affairs and Finance of the Senate and the Committees on Government Reform and Oversight and Ways and Means of the House of Representatives" and inserting "Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives"; and

(B) in paragraph (2), by striking "committees or subcommittees of Congress" and inserting "congressional committees".

Text directed to be stricken in subsections (a)(3) and (g)(1) did not appear exactly as quoted in the text enacted by Pub. L. 117–286. See Historical and Revision notes below.

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
412	5 U.S.C. App. (IGA §8D)	Pub. L. 95–452, §8D, formerly §8C, as added Pub. L. 100–504, title I, §102(f), Oct. 18, 1988, 102 Stat. 2518; renumbered §8D, Pub. L. 103–204, §23(a)(3), Dec. 17, 1993, 107 Stat. 2408; amended Pub. L. 105–206, title I, §1103(b), (e)(1), (2), July 22, 1998, 112 Stat. 705, 709; Pub. L. 107–296, title XI, §1112(a)(1), Nov. 25, 2002, 116 Stat. 2275; Pub. L. 108–7, div. L, §104(c)(2), Feb. 20, 2003, 117 Stat. 531; Pub. L. 109–177, title VI, §605(e)(3), Mar. 9, 2006, 120 Stat. 255; Pub. L. 110–409, §14(b), Oct. 14, 2008, 122 Stat. 4316; Pub. L. 112–199, title I, §117(b), Nov. 27, 2012, 126 Stat. 1475; Pub. L. 114–317, §§6(2), 7(d)(3)(C), Dec. 16, 2016, 130 Stat. 1604, 1606.

In subsection (a)(3) and subsection (g)(1), the words "[Committee] on Homeland Security and Governmental Affairs [of the Senate]" are substituted for "[Committee] on Governmental Affairs of the Senate" on authority of Senate Resolution No. 445, 108th Congress, October 9, 2004 (effective January 4, 2005).

In subsection (a)(3), the words "Committee on Oversight and Reform [of the House of Representatives]" are substituted for "[Committee on] Government Operations [of the House of Representatives]" on authority of section 1(a) of Public Law 104–14 (2 U.S.C. note prec. 21), House Resolution No. 5 (106th Congress, January 6, 1999), House Resolution No. 6 (110th Congress, January 5, 2007), and rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

In subsection (g)(1), the words "Committee on Oversight and Reform" are substituted for "[Committee on] Government Reform and Oversight" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

Editorial Notes

References in Text

The Presidential Protection Assistance Act of 1976, referred to in subsec. (a)(1)(F), is Pub. L. 94–524, Oct. 17, 1976, 90 Stat. 2475, which enacted and amended provisions set out as notes under section 3056 of Title 18, Crimes and Criminal Procedure. For complete classification of this Act to the Code, see Tables.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

§413. Special provisions concerning the Department of Justice

(a) In General.—

(1) Authority of attorney general over certain audits and investigations.—Notwithstanding the 2d sentence and last sentence of section 403(a) of this title, the Inspector General shall be under the authority, direction, and control of the Attorney General with respect to audits or investigations, or the issuance of subpoenas, which require access to sensitive information concerning—

(A) ongoing civil or criminal investigations or proceedings;

(B) undercover operations;

(C) the identity of confidential sources, including protected witnesses;

(D) intelligence or counterintelligence matters; or

(E) other matters the disclosure of which would constitute a serious threat to national security.

(2) Authority of attorney general to prohibit carrying out or completing certain audits and investigations.—With respect to the information described under paragraph (1), the Attorney General may prohibit the Inspector General from carrying out or completing any audit or investigation, from accessing information described in paragraph (1), or from issuing any subpoena, after such Inspector General has decided to initiate, carry out, or complete such audit or investigation, access such information, or to issue such subpoena, if the Attorney General determines that such prohibition is necessary to prevent the disclosure of any information described under paragraph (1) or to prevent significant impairment to the national interests of the United States.

(3) Notification and statement of reasons for exercise of power.—If the Attorney General exercises any power under paragraph (1) or (2), the Attorney General shall notify the Inspector General in writing, stating the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General shall transmit a copy of such notice to the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate and the Committee on Oversight and Reform and the Committee on the Judiciary of the House of Representatives, and to other appropriate committees or subcommittees of the Congress.

(b) Carrying Out Duties and Responsibilities.—In carrying out the duties and responsibilities specified in this chapter, the Inspector General of the Department of Justice—

(1) may initiate, conduct and supervise such audits and investigations in the Department of Justice as the Inspector General considers appropriate;

(2) except as specified in subsection (a) and paragraph (3), may investigate allegations of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice, or may, in the discretion of the Inspector General, refer such allegations to the Office of Professional Responsibility or the internal affairs office of the appropriate component of the Department of Justice;

(3) shall refer to the Counsel, Office of Professional Responsibility of the Department of Justice, allegations of misconduct involving Department attorneys, investigators, or law enforcement personnel, where the allegations relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice, except that no such referral shall be made if the attorney is employed in the Office of Professional Responsibility;

(4) may investigate allegations of criminal wrongdoing or administrative misconduct by a person who is the head of any agency or component of the Department of Justice; and

(5) shall forward the results of any investigation conducted under paragraph (4), along with any appropriate recommendation for disciplinary action, to the Attorney General.

(c) Reports.—Any report required to be transmitted by the Attorney General to the appropriate committees or subcommittees of the Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified under that section, to the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on the Judiciary and the Committee on Oversight and Reform of the House of Representatives.

(d) Regulation To Ensure Reporting of Certain Allegations to Inspector General.—The Attorney General shall ensure by regulation that any component of the Department of Justice receiving a nonfrivolous allegation of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice, except with respect to allegations described in subsection (b)(3), shall report that information to the Inspector General.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4233; Pub. L. 118–71, §2(a), July 25, 2024, 138 Stat. 1492.)

Amendment of Section

Pub. L. 118–71, §2(a), (b), July 25, 2024, 138 Stat. 1492, 1501, provided that, effective on the date that is 90 days after the date on which appropriations are made available to the Inspector General of the Department of Justice and the Department of Justice for the specific purpose of carrying out the provisions of Pub. L. 118–71, this section is amended by adding at the end the following:

(e) Inspections Regime.—

(1) Definitions.—In this subsection:

(A) Appropriate congressional committees.—The term "appropriate congressional committees" means—

(i) the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate; and

(ii) the Committee on the Judiciary and the Committee on Oversight and Accountability of the House of Representatives.

(B) Bureau.—The term "Bureau" means the Bureau of Prisons.

(C) Covered facility.—The term "covered facility"—

(i) means a correctional facility operated by the Bureau; and

(ii) does not include a post-incarceration residential re-entry center.

(D) Family advocate.—The term "family advocate" includes—

(i) a grandparent, parent, sibling, spouse or domestic partner, child, aunt, uncle, cousin, niece, nephew, grandchild, or any other person related to an individual by blood, adoption, marriage, civil union, a romantic or fostering relationship; or

(ii) a friend of—

(I) the incarcerated person; or

(II) the family of the incarcerated person.

(E) Inspector general.—The term "Inspector General" means the Inspector General of the Department of Justice.

(F) Ombudsman.—The term "Ombudsman" means the Ombudsman established under paragraph (3)(A).

(G) Representative of an incarcerated person.—The term "representative of an incarcerated person" includes paid or unpaid legal counsel or any other person or entity chosen by an incarcerated person to represent the interests of the incarcerated person.

(H) Sexual abuse.—The term "sexual abuse" has the meaning given that term in section 115.6 of title 28, Code of Federal Regulations (or any successor thereto).

(I) Staff.—The term "staff" means employees and contractors of the Bureau.

(2) Inspections of covered facilities by the inspector general.—

(A) Establishment of inspections regime.—

(i) In general.—The Inspector General shall conduct periodic inspections of covered facilities pursuant to the requirements of this subsection.

(ii) Access to covered facilities.—The Attorney General shall ensure that the Inspector General has access to—

(I) any covered facility (including the incarcerated people, detainees, staff, bargaining unit representative organization) in accordance with paragraph (4); and

(II) any other information that the Inspector General determines is necessary to carry out the provisions of this subsection.

(iii) Notice of inspections.—An inspection of a covered facility under this subsection may be announced or unannounced.

(iv) Community input.—In developing the inspections regime under this subsection, the Inspector General is encouraged to consult formerly incarcerated people, family or representatives of incarcerated people, and community advocates.

(B) Inspection criteria.—An inspection of a covered facility under this subsection may include an assessment of the following:

(i) The policies, procedures, and administrative guidance of the facility.

(ii) The conditions of confinement.

(iii) Working conditions for staff.

(iv) The availability of evidence-based recidivism reduction programs and productive activities, as such terms are defined in section 3635 of title 18, and the application of earned time credits pursuant to section 3632 of title 18.

(v) The policies and procedures relating to visitation.

(vi) The policies and practices relating to classification and housing.

(vii) The policies and practices relating to the use of single-cell confinement, administrative segregation, and other forms of restrictive housing.

(viii) The medical facilities and medical and mental health care, programs, procedures, and policies, including the number and qualifications of medical and mental health staff and the availability of sex-specific and trauma-responsive care for incarcerated people.

(ix) Medical services and mental health resources for staff.

(x) Lockdowns at the facility.

(xi) Credible allegations of incidents involving excessive use of force, completed, attempted, or threatened violence, including sexual abuse, or misconduct committed against incarcerated people.

(xii) Credible allegations of incidents involving completed, attempted, or threatened violence, including sexual violence or sexual abuse, committed against staff.

(xiii) Adequacy of staffing at the covered facility, including the number and job assignments of staff, the ratio of staff to inmates at the facility, the staff position vacancy rate at the facility, and the use of overtime, mandatory overtime, and augmentation.

(xiv) Deaths or serious injuries of incarcerated people or staff that occurred at the facility.

(xv) The existence of contraband that jeopardizes the health or safety of incarcerated people or staff, including incident reports, referrals for criminal prosecution, and confirmed prosecutions.

(xvi) Access of incarcerated people to—

(I) legal counsel, including confidential meetings and communications;

(II) discovery and other case-related legal materials; and

(III) the law library at the covered facility.

(xvii) Any aspect of the operation of the covered facility that the Inspector General determines to be necessary over the course of an inspection.

(C) Inspection schedule.—An inspection of a covered facility under this subsection shall be conducted on a schedule based on the combined risk score of the covered facility as described in subparagraph (E) and the following considerations:

(i) Higher risk facilities shall receive more frequent inspections.

(ii) The Inspector General shall reevaluate the combined risk score methodology and inspection schedule periodically and may alter 1 or both to ensure that higher risk facilities are identified and receiving the appropriate frequency of inspection.

(iii) A determination by the Inspector General that 1 or more of the criteria listed in subparagraph (B) should be inspected, with regard to a covered facility or group of covered facilities.

(D) Report.—

(i) In general.—Not later than 6 months after the completion of an inspection of a covered facility under this subsection, or a group of inspections that assess the same or similar issues at more than 1 facility, the Inspector General shall submit a final copy of the report to the Attorney General, the appropriate congressional committees, employee representative organizations, and the public, that addresses 1 or more of the following topics:

(I) A characterization of the conditions of confinement and working conditions, including a summary of the inspection criteria reviewed under clauses (ii) and (iii) of subparagraph (B).

(II) Recommendations made to the covered facility to improve safety and conditions within the facility, including recommendations regarding staffing.

(III) A recommended timeline for the next inspection and assessment, which shall not limit the authority of the Inspector General to perform additional inspections and assessments, announced or unannounced.

(IV) Any other issues or matters identified during the inspection of the facility or facilities.

(ii) Consultation with stakeholders.—In developing the recommendations described in clause (i), the Inspector General may consult with stakeholders, including employee representative organizations.

(E) Risk score.—Not later than 18 months after the date of enactment of the Federal Prison Oversight Act, the Inspector General shall establish methodology and protocols for determining the combined risk score of a covered facility, which—

(i) shall be delivered to the appropriate congressional committees; and

(ii) may be based on—

(I) frequency and duration of lockdowns;

(II) availability of programming;

(III) staffing levels;

(IV) access to adequate physical and mental health resources;

(V) incidences of physical assault, neglect, or sexual abuse;

(VI) opportunity to maintain family ties through phone calls, video calls, mail, email, and visitation;

(VII) adequacy of the nutrition provided;

(VIII) amount or frequency of staff discipline cases;

(IX) amount or frequency of misconduct by people incarcerated at the covered facility;

(X) access of incarcerated people to—

(aa) legal counsel, including confidential meetings and communications;

(bb) discovery and other case-related legal materials; and

(cc) the law library at the covered facility; and

(XI) other factors as determined by the Inspector General.

(F) Bureau response to report.—

(i) In general.—Not later than 60 days after the date on which the Inspector General issues a report under subparagraph (D), the Bureau shall respond in writing to the inspection report, which shall include a corrective action plan.

(ii) Public availability.—Each response and action plan described in clause (i) shall be made available to the public on the website of the Inspector General.

(iii) Compliance with corrective action plan.—The Inspector General may conduct additional inspections or investigations, announced or unannounced, to monitor the compliance of the Bureau with a corrective action plan described in clause (i).

(G) Rule of construction.—The authority in this paragraph is consistent with and does not supersede, conflict with, or otherwise alter the authority provided to the Inspector General under section 406.

(3) Ombudsman.—

(A) In general.—Not later than 1 year after the date of enactment of the Federal Prison Oversight Act, the Attorney General shall establish in the Department of Justice an Ombudsman who may—

(i) receive a complaint from an incarcerated person, a family advocate, a representative of an incarcerated person, staff, a representative of staff, a Member of Congress, or a member of the judicial branch of the Federal Government regarding issues that may adversely affect the health, safety, welfare, or rights of incarcerated people or staff, including—

(I) abuse or neglect;

(II) the conditions of confinement, including the availability of health care;

(III) working conditions of staff;

(IV) decisions, administrative actions, or guidance of the Bureau, including those relating to prison staffing;

(V) inaction or omissions by the Bureau, including failure to consider or respond to complaints or grievances by incarcerated people or staff promptly or appropriately;

(VI) policies, rules, or procedures of the Bureau, including gross mismanagement; and

(VII) alleged violations of non-criminal law by staff or incarcerated people that may adversely affect the health, safety, welfare, or rights of any person;

(ii) refer a complainant and others to appropriate resources or Federal agencies;

(iii) make inquiries and recommend actions to appropriate entities on behalf of a complainant, the Ombudsman, or others; and

(iv) decline to investigate or take any action with respect to any complaint and, in any case in which the Ombudsman declines to investigate or take any action, shall notify the complainant in writing of the decision not to investigate or take any action and the reasons for the decision.

(B) Limitations on authority.—The Ombudsman—

(i) may not investigate—

(I) any complaints relating to the underlying criminal conviction of an incarcerated person;

(II) a complaint from staff that relates to the employment or contractual relationship of the staff member with the Bureau, unless the complaint is related to the health, safety, welfare, working conditions, gross mismanagement of a covered facility, or rehabilitation of incarcerated people; or

(III) any allegation of criminal or administrative misconduct, as described in subsection (b)(2), and shall refer any matter covered by subsection (b)(2) to the Inspector General, who may, at the discretion of Inspector General, refer such allegations back to the Ombudsman or the internal affairs office of the appropriate component of the Department of Justice; and

(ii) may not levy any fees for the submission or investigation of complaints.

(C) Decision on the merits of a complaint.—At the conclusion of an investigation of a complaint, the Ombudsman shall—

(i) render a decision on the merits of each complaint;

(ii) communicate the decision to the complainant, if any, and to the Bureau; and

(iii) state the recommendations and reasoning of the Ombudsman if, in the opinion of the Ombudsman, the Bureau or any employee thereof should—

(I) consider the matter further;

(II) modify or cancel any action;

(III) alter a rule, practice, or ruling;

(IV) explain in detail the administrative action in question; or

(V) rectify an omission.

(D) Actions following a decision by the ombudsman.—

(i) Request for information about actions taken.—If the Ombudsman so requests, the Bureau shall, within the time specified, respond to any inquiry or request for information from the Ombudsman and inform the Ombudsman about any action taken on the recommendations provided by the Ombudsman or the reasons for not complying with any request for information or recommendations.

(ii) Reporting of continuing issues.—If the Ombudsman believes, based on an investigation conducted by the Ombudsman, that there has been or continues to be a significant health, safety, welfare, working conditions, or rehabilitation issue, the Ombudsman shall report the finding to the Attorney General and the appropriate congressional committees.

(iii) Monitoring of internal disciplinary actions of the bureau.—In the event that the Bureau conducts an internal disciplinary investigation or review of 1 or more staff members of the Bureau as a result of an investigation by the Ombudsman, the Ombudsman may monitor the internal disciplinary action to ensure a fair and objective process.

(4) Inspector general and ombudsman access to bureau of prisons facilities.—

(A) In general.—

(i) Access to bureau facilities.—Except as provided in clause (ii), upon demand, in person or in writing and with or without prior notice, the Inspector General and the Ombudsman shall be granted access to all Bureau facilities, which shall include—

(I) all areas that are used by incarcerated people, all areas that are accessible to incarcerated people, and access to programs for incarcerated people at any time of day; and

(II) the opportunity to—

(aa) conduct private and confidential interviews with any incarcerated person, staff, employee representative organization, or other person; and

(bb) communicate privately and confidentially, both formally and informally, with incarcerated people or staff by telephone, mail, electronic communication, and in person, which shall not be monitored or recorded by or conducted in the presence of staff.

(ii) Exception.—Clause (i) shall not apply in situations where the head of the covered facility provides evidence to the Inspector General or the Ombudsman that there is risk of serious and immediate physical harm to visitors due to an ongoing event that requires restricting access to the facility.

(B) Purpose of visits.—Access to Bureau facilities under subparagraph (A) is for the purposes of—

(i) conducting announced or unannounced inspections by the Inspector General as described in paragraph (2), including inspections to monitor the compliance of the Bureau with a corrective action plan described in paragraph (2)(F)(i);

(ii) conducting an investigation or other activity by the Ombudsman as described in paragraph (3); and

(iii) inspecting, viewing, photographing, and video recording all areas of the facility that are used by incarcerated people or are accessible to incarcerated people.

(C) Access to documents.—

(i) In general.—The Inspector General and the Ombudsman have the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the Bureau that either the Inspector General or the Ombudsman considers necessary in an inspection, investigation, or other activity, and the Bureau shall assist the Inspector General and the Ombudsman in obtaining the necessary releases for those documents that are specifically restricted or privileged for use by the Bureau.

(ii) Production of records.—Following notification from the Inspector General or the Ombudsman with a written demand for access to Bureau records, the Bureau shall provide access to the requested documentation in a manner consistent with section 552a (commonly known as the "Privacy Act of 1974")—

(I) not later than 30 business days after receipt of the written request; or

(II) in the case of records pertaining to the death of an incarcerated person or staff, threats of bodily harm including sexual or physical assaults, or the denial or delay of necessary medical treatment, not later than 10 business days after receipt of the written request, unless the Inspector General or the Ombudsman consents to an extension of that time frame.

(D) Minimize disruption of operations.—The Inspector General and the Ombudsman shall—

(i) develop procedures—

(I) to ensure that the Inspector General has access to, and the right to review and investigate, any allegations received by the Ombudsman to ensure that the Inspector General may carry out the authorities provided to the Inspector General under this chapter; and

(II) that may provide that the Inspector General and the Ombudsman will determine certain categories of allegations that are not necessary for the Inspector General to review prior to the Ombudsman proceeding;

(ii) work with the Bureau to minimize disruption to the operations of the Bureau due to inspections, investigations, or other activity;

(iii) comply with the security clearance processes of the Bureau, provided these processes do not impede the activities described in this subsection; and

(iv) limit the public release of any photographs or video recordings that would jeopardize—

(I) the safety, security, or good order of a covered facility or the Bureau; or

(II) public safety.

(E) Rule of construction.—The authority in this paragraph is consistent with and does not supersede, conflict with, or otherwise alter the authority provided to the Inspector General under section 406.

(5) Confidentiality.—

(A) In general.—Correspondence and communication with the Inspector General and the Ombudsman, including communication regarding an issue described in section 4051 of title 18 is confidential and shall be protected as privileged correspondence in the same manner as legal correspondence or communications.

(B) Procedures.—Subject to subparagraph (C), the Inspector General and the Ombudsman shall establish confidentiality procedures for all information maintained by the respective office to ensure that, to the greatest extent practicable, before, during, or after an investigation—

(i) staff are not aware of the identity of a complainant; and

(ii) other incarcerated people are not aware of the identity of a complainant.

(C) Exception.—The Inspector General and the Ombudsman may disclose identifying information for the sole purpose of carrying out an investigation and as otherwise authorized under section 407(b).

(6) Filing complaints.—

(A) Filing complaints on behalf of an incarcerated individual.—

(i) Online form.—The Ombudsman shall create a secure online form to be made available on the website of the Ombudsman where the family advocates and representatives of incarcerated people can submit complaints and inquiries on issues identified in paragraph (3)(A)(i) on behalf of an individual incarcerated at a covered facility.

(ii) Telephone hotline.—The Ombudsman shall create a telephone hotline through which family advocates and representatives of incarcerated people can call to file complaints and inquiries on issues identified in paragraph (3)(A)(i) on behalf of an individual incarcerated at a covered facility.

(B) Filing complaints by an incarcerated individual.—

(i) Internal private submission.—The Bureau shall provide multiple internal ways for incarcerated individuals in covered facilities to privately submit to the Ombudsman complaints and inquiries on issues identified in paragraph (3)(A)(i).

(ii) Submission via independent entity.—The Bureau shall also provide not less than 1 process for incarcerated individuals in covered facilities to submit complaints and inquiries on issues identified in paragraph (3)(A)(i) to a public or private entity or office that is not part of the Bureau and that is able to receive and immediately forward complaints and inquiries to the Ombudsman, allowing the incarcerated individual to remain anonymous upon request.

(C) Determination.—

(i) Confirmation of receipt.—Not later than 5 business days after submission of a complaint or inquiry under subparagraph (A) or (B), the Ombudsman shall confirm receipt.

(ii) Determination.—Not later than 15 business days after issuing the confirmation under clause (i), the Ombudsman shall make a determination as to whether any action is warranted and notify the complainant of the determination.

(iii) Statement regarding decision.—If the Ombudsman has determined action is unwarranted under clause (ii), the Ombudsman shall provide a written statement explaining the decision to the complainant.

(D) Public education.—The Ombudsman shall coordinate with the Bureau to educate incarcerated people, representatives of incarcerated people, and the public about the existence and functions of the Ombudsman.

(E) Administrative exhaustion.—Nothing in this paragraph shall be construed as a necessary administrative remedy required for exhaustion under section 7(a) of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997e(a)).

(7) Prohibition on retaliation.—

(A) In general.—The Bureau and staff of the Bureau shall not discharge, retaliate against, or in any manner discriminate against any complainant or any person or entity that has instituted or caused to be instituted any proceeding, investigation, or inspection under or related to this subsection.

(B) Investigation.—Any alleged discharge of, retaliation against, or discrimination against a complainant, entity, or person because of a complaint, investigation, or inspection may be considered by the Ombudsman as an appropriate subject of an investigation or other activity.

(8) Due process protections.—

(A) In general.—The Attorney General and the Inspector General shall ensure that implementation of this subsection is consistent with section 552a (commonly known as the "Privacy Act of 1974") and all other applicable laws, and respects appropriate due process protections for staff.

(B) Rule of construction.—Nothing in this paragraph shall be construed to modify, supersede, or otherwise affect the authority of the Inspector General to access all records, reports, audits, reviews, documents, papers, recommendations, or other materials, as authorized by section 406(a).

(9) Percentage of annual appropriation for the bureau of prisons.—It is the sense of Congress that the amount allocated to the Inspector General and the Ombudsman to carry out the activities described in this subsection should equal an amount between 0.2 percent and 0.5 percent of the annual appropriation for the Bureau.

See 2024 Amendment note below.

Amendments Not Shown in Text

This section was derived from section 8E of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8E of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §5272(5), Dec. 23, 2022, 136 Stat. 3240, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4233, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8E of Pub. L. 95–452 was amended as follows:

(1) in subsection (a)(3), by striking "Committees on Governmental Affairs and Judiciary of the Senate and the Committees on Government Operations and Judiciary of the House of Representatives, and to other appropriate committees or subcommittees of the Congress" and inserting "appropriate congressional committees, including the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives"; and

(2) in subsection (c)—

(A) by striking "committees or subcommittees of the Congress" and inserting "congressional committees"; and

(B) by striking "Committees on the Judiciary and Governmental Affairs of the Senate and the Committees on the Judiciary and Government Operations of the House of Representatives" and inserting "Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives".

Some of the text directed to be stricken in subsections (a)(3) and (c) did not appear exactly as quoted in the text enacted by Pub. L. 117–286. See Historical and Revision notes below.

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
413	5 U.S.C. App. (IGA §8E)	Pub. L. 95–452, §8E, formerly §8D, as added Pub. L. 100–504, title I, §102(f), Oct. 18, 1988, 102 Stat. 2520; renumbered §8E, Pub. L. 103–204, §23(a)(3), Dec. 17, 1993, 107 Stat. 2408; Pub. L. 107–273, div. A, title III, §308, Nov. 2, 2002, 116 Stat. 1784; Pub. L. 114–317, §§6(3), 7(d)(3)(D), Dec. 16, 2016, 130 Stat. 1604, 1606.

In subsection (a)(3) and subsection (c), the words "[Committee] on Homeland Security and Governmental Affairs [of the Senate]" are substituted for "[Committee] on Governmental Affairs [of the Senate]" because of Senate Resolution No. 445, 108th Congress, October 9, 2004 (effective January 4, 2005).

In subsection (a)(3) and subsection (c), the words "Committee on Oversight and Reform [of the House of Representatives]" are substituted for "[Committee on] Government Operations [of the House of Representatives]" on authority of section 1(a) of Public Law 104–14 (2 U.S.C. note prec. 21), House Resolution No. 5 (106th Congress, January 6, 1999), House Resolution No. 6 (110th Congress, January 5, 2007), and rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

Editorial Notes

Amendments

2024—Subsec. (e). Pub. L. 118–71 added subsec. (e).

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective Date of 2024 Amendment

Pub. L. 118–71, §2(b), July 25, 2024, 138 Stat. 1501, provided that: "This Act [see Short Title of 2024 Amendment note set out under section 101 of this title], and the amendments made by this Act, shall take effect on the date that is 90 days after the date on which appropriations are made available to the Inspector General of the Department of Justice and the Department of Justice for the specific purpose of carrying out the provisions of this Act and the amendments made by this Act."

Appointment of Oversight Official Within the Office of Inspector General

Pub. L. 107–273, div. A, title III, §309(a), Nov. 2, 2002, 116 Stat. 1784, provided that:

"(1) In general.—The Inspector General of the Department of Justice shall direct that 1 official from the office of the Inspector General be responsible for supervising and coordinating independent oversight of programs and operations of the Federal Bureau of Investigation until September 30, 2004.

"(2) Continuation of oversight.—The Inspector General may continue individual oversight in accordance with paragraph (1) after September 30, 2004, at the discretion of the Inspector General."

Review of Civil Rights Complaints by the Department of Justice

Pub. L. 107–56, title X, §1001, Oct. 26, 2001, 115 Stat. 391, provided that: "The Inspector General of the Department of Justice shall designate one official who shall—

"(1) review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice;

"(2) make public through the Internet, radio, television, and newspaper advertisements information on the responsibilities and functions of, and how to contact, the official; and

"(3) submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report on the implementation of this subsection [section] and detailing any abuses described in paragraph (1), including a description of the use of funds appropriations used to carry out this subsection [section]."

§414. Special provisions concerning the Corporation for National and Community Service

(a) Personnel.—Notwithstanding the provisions of paragraphs (7) and (8) of section 406(a) of this title, it is within the exclusive jurisdiction of the Inspector General of the Corporation for National and Community Service to—

(1) appoint and determine the compensation of such officers and employees in accordance with section 195(b) of the National and Community Service Act of 1990 (42 U.S.C. 12651f(b)); and

(2) procure the temporary and intermittent services of and compensate such experts and consultants, in accordance with section 3109(b) of this title,

as may be necessary to carry out the functions, powers, and duties of the Inspector General.

(b) Reports to Board of Directors.—Not later than the date on which the Chief Executive Officer of the Corporation for National and Community Service transmits any report to the Congress under subsection (b) or (c) of section 405 of this title, the Chief Executive Officer shall transmit such report to the Board of Directors of such Corporation.

(c) Review of Audit Reports by Board of Directors.—Not later than the date on which the Chief Executive Officer of the Corporation for National and Community Service transmits a report described under section 405(c) of this title to the Board of Directors as provided under subsection (b) of this section, the Chief Executive Officer shall also transmit any audit report which is described in the statement required under section 405(c)(4) to the Board of Directors. All such audit reports shall be placed on the agenda for review at the next scheduled meeting of the Board of Directors following such transmittal. The Chief Executive Officer of the Corporation shall be present at such meeting to provide any information relating to such audit reports.

(d) Report of Problem, Abuse, or Deficiency to Board of Directors.—Not later than the date on which the Inspector General of the Corporation for National and Community Service reports a problem, abuse, or deficiency under section 405(e) of this title to the Chief Executive Officer of the Corporation, the Chief Executive Officer shall report such problem, abuse, or deficiency to the Board of Directors.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4235.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
414	5 U.S.C. App. (IGA §8F)	Pub. L. 95–452, §8F, formerly §8E, as added Pub. L. 103–82, title II, §202(g)(1), Sept. 21, 1993, 107 Stat. 889; renumbered §8F, Pub. L. 103–204, §23(a)(3), Dec. 17, 1993, 107 Stat. 2408; amended Pub. L. 111–13, title IV, §4101, Apr. 21, 2009, 123 Stat. 1597.

§415. Requirements for Federal entities and designated Federal entities

(a) Definitions.—Notwithstanding section 401 of this title, in this section:

(1) Designated federal entity.—

(A) In general.—The term "designated Federal entity" means Amtrak, the Appalachian Regional Commission, the Board of Governors of the Federal Reserve System and the Bureau of Consumer Financial Protection, the Committee for Purchase From People Who Are Blind or Severely Disabled, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Corporation for Public Broadcasting, the Defense Intelligence Agency, the Denali Commission, the Equal Employment Opportunity Commission, the Farm Credit Administration, the Federal Election Commission, the Election Assistance Commission, the Federal Labor Relations Authority, the Federal Maritime Commission, the Federal Trade Commission, the Legal Services Corporation, the National Archives and Records Administration, the National Credit Union Administration, the National Endowment for the Arts, the National Endowment for the Humanities, the National Geospatial-Intelligence Agency, the National Labor Relations Board, the National Science Foundation, the Peace Corps, the Pension Benefit Guaranty Corporation, the Securities and Exchange Commission, the Smithsonian Institution, the United States International Development Finance Corporation, the United States International Trade Commission, the Postal Regulatory Commission, and the United States Postal Service.

(B) Amtrak.—Effective at the beginning of the first fiscal year after a fiscal year for which Amtrak receives no Federal subsidy, subparagraph (A) is amended by striking "Amtrak,".

(2) Federal entity.—The term "Federal entity" means any Government corporation (within the meaning of section 103(1) of this title), any Government controlled corporation (within the meaning of section 103(2) of this title), or any other entity in the executive branch of the Government, or any independent regulatory agency, but does not include—

(A) an establishment (as defined under section 401 of this title) or part of an establishment;

(B) a designated Federal entity (as defined under paragraph (1) of this subsection) or part of a designated Federal entity;

(C) the Executive Office of the President;

(D) the Central Intelligence Agency;

(E) the Government Accountability Office; or

(F) any entity in the judicial or legislative branches of the Government, including the Administrative Office of the United States Courts and the Architect of the Capitol and any activities under the direction of the Architect of the Capitol.

(3) Head of the designated federal entity.—The term "head of the designated Federal entity" means the board or commission of the designated Federal entity, or in the event the designated Federal entity does not have a board or commission, any person or persons designated by statute as the head of a designated Federal entity and if no such designation exists, the chief policymaking officer or board of a designated Federal entity as identified in the list published pursuant to subsection (h)(1) of this section, except that—

(A) with respect to the National Science Foundation, such term means the National Science Board;

(B) with respect to the United States Postal Service, such term means the Governors (within the meaning of section 102(3) of title 39);

(C) with respect to the Federal Labor Relations Authority, such term means the members of the Authority (described under section 7104 of this title);

(D) with respect to the Committee for Purchase From People Who Are Blind or Severely Disabled, such term means the Chairman of the Committee for Purchase From People Who Are Blind or Severely Disabled;

(E) with respect to the National Archives and Records Administration, such term means the Archivist of the United States;

(F) with respect to the National Credit Union Administration, such term means the National Credit Union Administration Board (described under section 102 of the Federal Credit Union Act (12 U.S.C. 1752a));

(G) with respect to the National Endowment of the Arts, such term means the National Council on the Arts;

(H) with respect to the National Endowment for the Humanities, such term means the National Council on the Humanities;

(I) with respect to the Peace Corps, such term means the Director of the Peace Corps; and

(J) with respect to the United States International Development Finance Corporation, such term means the Board of Directors of the United States International Development Finance Corporation.

(4) Head of the federal entity.—The term "head of the Federal entity" means any person or persons designated by statute as the head of a Federal entity, and if no such designation exists, the chief policymaking officer or board of a Federal entity as identified in the list published pursuant to subsection (h)(1) of this section.

(5) Inspector general.—The term "Inspector General" means an Inspector General of a designated Federal entity.

(6) Office of inspector general.—The term "Office of Inspector General" means an Office of Inspector General of a designated Federal entity.

(b) Office of Inspector General in Each Designated Federal Entity.—Not later than 180 days after October 18, 1988, there shall be established and maintained in each designated Federal entity an Office of Inspector General. The head of the designated Federal entity shall transfer to such office the offices, units, or other components, and the functions, powers, or duties thereof, that such head determines are properly related to the functions of the Office of Inspector General and would, if so transferred, further the purposes of this section. There shall not be transferred to such office any program operating responsibilities.

(c) Appointment of Inspector General.—Except as provided under subsection (f) of this section, the Inspector General shall be appointed by the head of the designated Federal entity in accordance with the applicable laws and regulations governing appointments within the designated Federal entity. Each Inspector General shall be appointed without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations. For purposes of implementing this section, the Chairman of the Board of Governors of the Federal Reserve System shall appoint the Inspector General of the Board of Governors of the Federal Reserve System and the Bureau of Consumer Financial Protection. The Inspector General of the Board of Governors of the Federal Reserve System and the Bureau of Consumer Financial Protection shall have all of the authorities and responsibilities provided by this Act with respect to the Bureau of Consumer Financial Protection, as if the Bureau were part of the Board of Governors of the Federal Reserve System.

(d) Supervision.—

(1) In general.—Each Inspector General shall report to and be under the general supervision of the head of the designated Federal entity, but shall not report to, or be subject to supervision by, any other officer or employee of such designated Federal entity. Except as provided in paragraph (2), the head of the designated Federal entity shall not prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.

(2) Exception relating to intelligence community.—

(A) In general.—The Secretary of Defense, in consultation with the Director of National Intelligence, may prohibit the inspector general of an element of the intelligence community specified in subparagraph (D) from initiating, carrying out, or completing any audit or investigation, or from accessing information available to an element of the intelligence community specified in subparagraph (D), if the Secretary determines that the prohibition is necessary to protect vital national security interests of the United States.

(B) Statement of reasons for exercise of authority.—If the Secretary exercises the authority under subparagraph (A), the Secretary shall submit to the committees of Congress specified in subparagraph (E) an appropriately classified statement of the reasons for the exercise of such authority not later than 7 days after the exercise of such authority.

(C) Notification to inspector general.—At the same time the Secretary submits under subparagraph (B) a statement on the exercise of the authority in subparagraph (A) to the committees of Congress specified in subparagraph (E), the Secretary shall notify the inspector general of such element of the submittal of such statement and, to the extent consistent with the protection of intelligence sources and methods, provide such inspector general with a copy of such statement. Such inspector general may submit to such committees of Congress any comments on a notice or statement received by the inspector general under this subparagraph that the inspector general considers appropriate.

(D) Elements of the intelligence community.—The elements of the intelligence community specified in this subparagraph are as follows:

(i) The Defense Intelligence Agency.

(ii) The National Geospatial-Intelligence Agency.

(iii) The National Reconnaissance Office.

(iv) The National Security Agency.

(E) Committees of congress.—The committees of Congress specified in this subparagraph are—

(i) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

(ii) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

(e) Removal.—

(1) Board, chairman of committee, or commission is head of designated federal entity.—In the case of a designated Federal entity for which a board, chairman of a committee, or commission is the head of the designated Federal entity, a removal under this subsection may only be made upon the written concurrence of a 2/3 majority of the board, committee, or commission.

(2) Inspector general removed or transferred.—If an Inspector General is removed from office or is transferred to another position or location within a designated Federal entity, the head of the designated Federal entity shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer. Nothing in this subsection shall prohibit a personnel action otherwise authorized by law, other than transfer or removal.

(f) United States Postal Service.—

(1) Appointment.—For purposes of carrying out subsection (c) with respect to the United States Postal Service, the appointment provisions of section 202(e) of title 39 shall be applied.

(2) Oversight responsibility of inspector general for activities of postal inspection service.—In carrying out the duties and responsibilities specified in this chapter, the Inspector General of the United States Postal Service (hereinafter in this subsection referred to as the "Inspector General") shall have oversight responsibility for all activities of the Postal Inspection Service, including any internal investigation performed by the Postal Inspection Service. The Chief Postal Inspector shall promptly report the significant activities being carried out by the Postal Inspection Service to such Inspector General.

(3) Audits and investigations.—

(A) Authority, direction, and control of governors.—

(i) Access to sensitive information.—Notwithstanding subsection (d), the Inspector General shall be under the authority, direction, and control of the Governors with respect to audits or investigations, or the issuance of subpoenas, which require access to sensitive information concerning—

(I) ongoing civil or criminal investigations or proceedings;

(II) undercover operations;

(III) the identity of confidential sources, including protected witnesses;

(IV) intelligence or counterintelligence matters; or

(V) other matters the disclosure of which would constitute a serious threat to national security.

(ii) Authority to prohibit inspector general from carrying out or completing audit or investigation.—With respect to the information described under clause (i), the Governors may prohibit the Inspector General from carrying out or completing any audit or investigation, or from issuing any subpoena, after such Inspector General has decided to initiate, carry out, or complete such audit or investigation or to issue such subpoena, if the Governors determine that such prohibition is necessary to prevent the disclosure of any information described under clause (i) or to prevent significant impairment to the national interests of the United States.

(iii) Notification of reasons for exercise of power.—If the Governors exercise any power under clause (i) or (ii), the Governors shall notify the Inspector General in writing, stating the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General shall transmit a copy of such notice to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives, and to other appropriate committees or subcommittees of the Congress.

(B) Initiating, conducting, and supervising audits and investigations.—In carrying out the duties and responsibilities specified in this chapter, the Inspector General—

(i) may initiate, conduct, and supervise such audits and investigations in the United States Postal Service as the Inspector General considers appropriate; and

(ii) shall give particular regard to the activities of the Postal Inspection Service with a view toward avoiding duplication and ensuring effective coordination and cooperation.

(C) Reporting serious problems, abuses, or deficiencies.—Any report required to be transmitted by the Governors to the appropriate committees or subcommittees of the Congress under section 405(e) of this title shall also be transmitted, within the 7-day period specified under such section, to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives.

(4) Limitation.—Nothing in this chapter shall restrict, eliminate, or otherwise adversely affect any of the rights, privileges, or benefits of either employees of the United States Postal Service, or labor organizations representing employees of the United States Postal Service, under chapter 12 of title 39, the National Labor Relations Act, any handbook or manual affecting employee labor relations with the United States Postal Service, or any collective bargaining agreement.

(5) Definition of governors.—In this subsection, the term "Governors" has the meaning given the term by section 102(3) of title 39.

(6) Authorization of appropriations.—There are authorized to be appropriated, out of the Postal Service Fund, such sums as may be necessary for the Office of Inspector General of the United States Postal Service.

(g) Special Application.—

(1) Sections 404, 405, 406, and 407.—Sections 404, 405, 406 (other than paragraphs (7) and (8) of section 406(a)), and 407 of this title shall apply to each Inspector General and Office of Inspector General of a designated Federal entity, and such sections shall be applied to each designated Federal entity and head of the designated Federal entity (as defined under subsection (a)) by substituting—

(A) "designated Federal entity" for "establishment"; and

(B) "head of the designated Federal entity" for "head of the establishment".

(2) Personnel.—In addition to the other authorities specified in this chapter, an Inspector General is authorized to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office of Inspector General and to obtain the temporary or intermittent services of experts or consultants or an organization of experts or consultants, subject to the applicable laws and regulations that govern such selections, appointments, and employment, and the obtaining of such services, within the designated Federal entity.

(3) Application of section 412(a).—Notwithstanding the last sentence of subsection (d)(1) of this section, the provisions of subsection (a) of section 412 of this title (other than the provisions of subparagraphs (A), (B), (C), and (E) of subsection (a)(1) of section 412 of this title) shall apply to the Inspector General of the Board of Governors of the Federal Reserve System and the Bureau of Consumer Financial Protection and the Chairman of the Board of Governors of the Federal Reserve System in the same manner as such provisions apply to the Inspector General of the Department of the Treasury and the Secretary of the Treasury, respectively.

(4) Counsel.—Each Inspector General shall—

(A) in accordance with applicable laws and regulations governing appointments within the designated Federal entity, appoint a Counsel to the Inspector General who shall report to the Inspector General;

(B) obtain the services of a counsel appointed by and directly reporting to another Inspector General on a reimbursable basis; or

(C) obtain the services of appropriate staff of the Council of the Inspectors General on Integrity and Efficiency on a reimbursable basis.

(h) Annual Listing and Report.—

(1) Listing.—Each year, the Director of the Office of Management and Budget, after consultation with the Comptroller General of the United States, shall publish in the Federal Register a list of the Federal entities and designated Federal entities and if the designated Federal entity is not a board or commission, include the head of each such entity (as defined under subsection (a)).

(2) Report.—On October 31 of each year, the head of each Federal entity (as defined under subsection (a)) shall prepare and transmit to the Director of the Office of Management and Budget and to each House of the Congress a report that—

(A) states whether there has been established in the Federal entity an office that meets the requirements of this section;

(B) specifies the actions taken by the Federal entity otherwise to ensure that audits are conducted of its programs and operations in accordance with the standards for audit of governmental organizations, programs, activities, and functions issued by the Comptroller General of the United States, and includes a list of each audit report completed by a Federal or non-Federal auditor during the reporting period and a summary of any particularly significant findings; and

(C) summarizes any matters relating to the personnel, programs, and operations of the Federal entity referred to prosecutive authorities, including a summary description of any preliminary investigation conducted by or at the request of the Federal entity concerning these matters, and the prosecutions and convictions which have resulted.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4235.)

Amendments Not Shown in Text

This section was derived from section 8G of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8G of Pub. L. 95–452 was amended by Pub. L. 117–108, title II, §209(a), Apr. 6, 2022, 136 Stat. 1151, and by Pub. L. 117–263, div. E, title LII, §§5202(a)(2), 5272(6), Dec. 23, 2022, 136 Stat. 3224, 3240, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4235, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title.

Section 8G of Pub. L. 95–452 was amended by Pub. L. 117–108 as follows:

(1) in subsection (a)(2), by striking "the Postal Regulatory Commission,"; and

(2) in subsection (f)—

(A) in paragraph (2), by inserting subparagraph (A) designation before "In carrying" and adding at the end the following:

"(B) In carrying out the duties and responsibilities specified in this Act, the Inspector General of the United States Postal Service shall function as the Inspector General for the Postal Regulatory Commission, and shall have equal responsibility over the United States Postal Service and the Postal Regulatory Commission. The Commission shall comply with the Inspector General's oversight as if the Commission were a designated Federal entity under subsection (a)(2) and as if the Inspector General were the inspector general of the Commission. The Governors of the Postal Service shall not direct oversight activities for the Postal Regulatory Commission.";

(B) in paragraph (3)—

(i) in subparagraph (A)(i), by inserting "pertaining to the United States Postal Service" after "subpoenas,";

(ii) in subparagraph (B)(i), by inserting "and the Postal Regulatory Commission" after "United States Postal Service"; and

(iii) in subparagraph (C), by inserting "or the Postal Regulatory Commission" after "Governors"; and

(C) by redesignating paragraphs (4), (5), and (6) as (5), (6), and (7), respectively, and adding after paragraph (3) the following:

"(4) For activities pertaining to the Postal Regulatory Commission, sections 4, 5, 6 (other than subsection (g) thereof), and 7 of this Act shall be applied by substituting the term 'head of the Postal Regulatory Commission' for 'head of the establishment'."

Section 8G of Pub. L. 95–452 was amended by Pub. L. 117–263 as follows:

(1) in subsection (e)—

(A) in paragraph (1), by inserting "or placement on non-duty status" after "a removal";

(B) in paragraph (2)—

(i) by inserting "(A)" after "(2)";

(ii) in subparagraph (A), as so designated, in the first sentence—

(I) by striking "reasons" and inserting "substantive rationale, including detailed and case-specific reasons,"; and

(II) by inserting "(including to the appropriate congressional committees)" after "Houses of Congress"; and

(iii) by adding at the end the following:

"(B) If there is an open or completed inquiry into an Inspector General that relates to the removal or transfer of the Inspector General under subparagraph (A), the written communication required under that subparagraph shall—

"(i) identify each entity that is conducting, or that conducted, the inquiry; and

"(ii) in the case of a completed inquiry, contain the findings made during the inquiry."; and

(C) by adding at the end the following:

"(3)(A) Subject to the other provisions of this paragraph, only the head of the applicable designated Federal entity (referred to in this paragraph as the 'covered official') may place an Inspector General on non-duty status.

"(B) If a covered official places an Inspector General on non-duty status, the covered official shall communicate in writing the substantive rationale, including detailed and case-specific reasons, for the change in status to both Houses of Congress (including to the appropriate congressional committees) not later than 15 days before the date on which the change in status takes effect, except that the covered official may submit that communication not later than the date on which the change in status takes effect if—

"(i) the covered official has made a determination that the continued presence of the Inspector General in the workplace poses a threat described in any of clauses (i) through (iv) of section 6329b(b)(2)(A) of title 5, United States Code; and

"(ii) in the communication, the covered official includes a report on the determination described in clause (i), which shall include—

"(I) a specification of which clause of section 6329b(b)(2)(A) of title 5, United States Code, the covered official has determined applies under clause (i) of this subparagraph;

"(II) the substantive rationale, including detailed and case-specific reasons, for the determination made under clause (i);

"(III) an identification of each entity that is conducting, or that conducted, any inquiry upon which the determination under clause (i) was made; and

"(IV) in the case of an inquiry described in subclause (III) that is completed, the findings made during that inquiry.

"(C) A covered official may not place an Inspector General on non-duty status during the 30-day period preceding the date on which the Inspector General is removed or transferred under paragraph (2)(A) unless the covered official—

"(i) has made a determination that the continued presence of the Inspector General in the workplace poses a threat described in any of clauses (i) through (iv) of section 6329b(b)(2)(A) of title 5, United States Code; and

"(ii) not later than the date on which the change in status takes effect, submits to both Houses of Congress (including to the appropriate congressional committees) a written communication that contains the information required under subparagraph (B), including the report required under clause (ii) of that subparagraph.

"(D) Nothing in this paragraph may be construed to limit or otherwise modify—

"(i) any statutory protection that is afforded to an Inspector General; or

"(ii) any other action that a covered official may take under law with respect to an Inspector General."; and

(2) in subsection (f)(3)—

(A) in subparagraph (A)(iii), by striking "Committee on Governmental Affairs of the Senate and the Committee on Government Reform and Oversight of the House of Representatives, and to other appropriate committees or subcommittees of the Congress" and inserting "the appropriate congressional committees"; and

(B) by striking subparagraph (C).

As enacted by Pub. L. 117–286, subsection (e)(2) of this section contains a heading after the paragraph designation. The amendment to section 8G of Pub. L. 95–452 inserting "(A)" after "(2)" amended text that did not contain a paragraph heading. The text directed to be stricken in subsection (f)(3)(A)(iii) did not appear exactly as quoted in the text enacted by Pub. L. 117–286. See Historical and Revision notes below.

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
415	5 U.S.C. App. (IGA §8G)	Pub. L. 95–452, §8G, formerly §8E, as added Pub. L. 100–504, title I, §104(a), Oct. 18, 1988, 102 Stat. 2522; amended Pub. L. 101–73, title VII, §702(c), Aug. 9, 1989, 103 Stat. 415; renumbered §8F and amended Pub. L. 103–82, title II, §202(g)(1), (2)(A), Sept. 21, 1993, 107 Stat. 889, 890; renumbered §8G and amended Pub. L. 103–204, §23(a)(3), (4), Dec. 17, 1993, 107 Stat. 2408; Pub. L. 104–88, title III, §319, Dec. 29, 1995, 109 Stat. 949; Pub. L. 104–208, div. A, title I, §101(f) [title VI, §662(b)(1), (2)], Sept. 30, 1996, 110 Stat. 3009–314, 3009-379; Pub. L. 105–134, title IV, §409(a)(1), Dec. 2, 1997, 111 Stat. 2586; Pub. L. 105–277, div. C, title III, §306(h), as added Pub. L. 106–31, title I, §105(a)(5), May 21, 1999, 113 Stat. 63; Pub. L. 106–422, §1(b)(1), Nov. 1, 2000, 114 Stat. 1872; Pub. L. 107–252, title VIII, §812(a), Oct. 29, 2002, 116 Stat. 1727; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, §§603(b), 605(a), Dec. 20, 2006, 120 Stat. 3240, 3242; Pub. L. 110–409, §§2, 3(b), 6(b), 7(d)(1), Oct. 14, 2008, 122 Stat. 4302, 4305, 4313; Pub. L. 111–203, title IX, §§989B, 989D, title X, §1081, July 21, 2010, 124 Stat. 1945, 1946, 2080; Pub. L. 111–259, title IV, §431(a), (c), Oct. 7, 2010, 124 Stat. 2731; Pub. L. 113–126, title IV, §§402(1), 412(1), July 7, 2014, 128 Stat. 1408, 1409; Pub. L. 114–113, div. H, title IV, §401(a), Dec. 18, 2015, 129 Stat. 2639; Pub. L. 114–317, §§6(4), 7(d)(2)(F), (3)(E), Dec. 16, 2016, 130 Stat. 1604, 1606; Pub. L. 115–141, div. P, title V, §501(a)(1), Mar. 23, 2018, 132 Stat. 1090; Pub. L. 115–254, div. F, title I, §1414, Oct. 5, 2018, 132 Stat. 3492.

In subsection (a)(1)(A), the words "the Board for International Broadcasting" are omitted as obsolete. The Board for International Broadcasting was established by section 3(a) of the Board for International Broadcasting Act of 1973 (Public Law 93–129, 87 Stat. 457). The Board for International Broadcasting Act of 1973 was repealed by section 310(e) of the United States International Broadcasting Act of 1994 (Public Law 103–236, title III, 108 Stat. 442).

In subsection (a)(1)(A), the words "the Federal Housing Finance Board" are omitted as obsolete because the Federal Housing Finance Board was abolished by section 1311 of the Housing and Economic Recovery Act of 2008 (Public Law 110–289, div. A, title III, 12 U.S.C. 4511 note).

In subsection (a)(1)(A), the words "the Panama Canal Commission" are omitted as obsolete because of section 1305 of the Panama Canal Act of 1979 (22 U.S.C. 3714a).

In subsection (a)(1), subparagraph (B) restates the amendment made by section 409(a) of the Amtrak Reform and Accountability Act of 1997 (Public Law 105–134, 111 Stat. 2586). That provision amended section 8G(a)(2) of the Inspector General Act of 1978 by striking "Amtrak" from the definition of "designated Federal entity". However, the amendment was enacted with a conditional effective date; it will take effect at the beginning of the first fiscal year after a fiscal year for which Amtrak receives no Federal subsidy. The conditional effective date creates uncertainty because it cannot be known in advance when the condition will be met and the amendment will take effect. In subsection (a)(1), subparagraph (B) explicitly incorporates the amendatory language and the conditional effective date within the restatement text in order to clarify that although "Amtrak" is currently included in the definition of "designated Federal entity", it is automatically struck from the definition, without further congressional action, whenever the specified condition is met.

In subsection (f)(3), in subparagraph (A)(iii) and subparagraph (C), the words "[Committee] on Homeland Security and Governmental Affairs [of the Senate]" are substituted for "[Committee] on Governmental Affairs [of the Senate]" because of Senate Resolution No. 445, 108th Congress, October 9, 2004 (effective January 4, 2005).

In subsection (f)(3), in subparagraph (A)(iii) and subparagraph (C), the words "Committee on Oversight and Reform" are substituted for "Committee on Government Reform and Oversight" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

In subsection (f)(3)(B)(ii), the word "ensuring" is substituted for "insuring" for clarity.

In subsection (g)(3), the words "Notwithstanding the last sentence of subsection (d)(1) of this section" are substituted for "Notwithstanding the last sentence of subsection (d) of this section" for clarity and to correct an obsolete reference in the law. In section 8G of the Inspector General Act of 1978, subsection (d) was redesignated as subsection (d)(1) by section 431(c)(1) of the Intelligence Authorization Act for Fiscal Year 2010 (Public Law 111–259, 124 Stat. 2731).

In subsection (h)(1), the words "Each year," are substituted for "No later than April 30, 1989, and annually thereafter," to eliminate obsolete language.

In subsection (h)(2), the words "On October 31 of each year," are substituted for "Beginning on October 31, 1989, and on October 31 of each succeeding calendar year," to eliminate obsolete language.

Editorial Notes

References in Text

The National Labor Relations Act, referred to in subsec. (f)(4), is act July 5, 1935, ch. 372, 49 Stat. 449, which is classified generally to subchapter II (§151 et seq.) of chapter 7 of Title 29, Labor. For complete classification of this Act to the Code, see section 167 of Title 29 and Tables.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Savings Provision; References to Inspector General of the Postal Regulatory Commission

Pub. L. 117–108, title II, §209(c), Apr. 6, 2022, 136 Stat. 1152, provided that:

"(1) Personnel, documents, assets.—All personnel, documents, assets, unexpended balances of appropriations, and obligations of the Inspector General for the Postal Regulatory Commission shall transfer to the Inspector General of the Postal Service on the effective date of this section [see section 209(e) of Pub. L. 117–108, set out as an Effective Date of 2022 Amendent note under section 202 of Title 39, Postal Service].

"(2) Legal documents.—Any order, determination, rule, regulation, permit, grant, loan, contract, agreement, certificate, license, or privilege that has been issued, made, granted, or allowed to become effective by the Inspector General of the Postal Regulatory Commission that is in effect on the effective date of this section shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with law.

"(3) Proceedings.—This section and the amendments made by this section shall not affect any proceeding pending on the effective date of this section before the Inspector General of the Postal Regulatory Commission, but such proceeding shall be continued by the Inspector General of the Postal Service, at the discretion of that Inspector General. Nothing in this paragraph shall be construed to prohibit the discontinuance or modification of any such proceeding under the same terms and conditions and to the same extent that the proceeding could have been discontinued or modified if this section and those amendments had not been enacted.

"(4) Suits.—This section and the amendments made by this section shall not affect any suit commenced before the effective date of this section, and in any such suit, proceeding shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if this section or such amendments had not been enacted.

"(5) References.—Any reference in any other Federal law, Executive order, rule, regulation, or delegation of authority, or any document relating to the Inspector General of the Postal Regulatory Commission shall be deemed to refer to the Inspector General of the United States Postal Service."

[For definition of "Postal Service" as used in section 209(c) of Pub. L. 117–108, set out above, see section 102 of Title 39, Postal Service, as made applicable by section 2(b) of Pub. L. 117–108, which is set out as a note under section 501 of Title 39.]

Inspector General Oversight of Fund

Pub. L. 115–91, div. A, title XV, §1521(e), Dec. 12, 2017, 131 Stat. 1714, provided that:

"(1) Quality standards for ig products.—Except as provided in paragraph (3), each product published or issued by an Inspector General relating to the oversight of programs and activities funded under the Afghanistan Security Forces Fund shall be prepared—

"(A) in accordance with the Generally Accepted Government Auditing Standards/Government Auditing Standards (GAGAS/GAS), as issued and updated by the Government Accountability Office; or

"(B) if not prepared in accordance with the standards referred to in subparagraph (A), in accordance with the Quality Standards for Inspection and Evaluation issued by the Council of the Inspectors General on Integrity and Efficiency (commonly referred to as the 'CIGIE Blue Book').

"(2) Specification of quality standards followed.—Each product published or issued by an Inspector General relating to the oversight of programs and activities funded under the Afghanistan Security Forces Fund shall cite within such product the quality standards followed in conducting and reporting the work concerned.

"(3) Waiver.—The Lead Inspector General for Operation Freedom's Sentinel may waive the applicability of paragraph (1) to a specific product relating to the oversight by an Inspector General of activities and programs funded under the Afghanistan Security Forces Fund if the Lead Inspector General determines that the waiver would facilitate timely efforts to promote efficiency and effectiveness and prevent, detect, and deter fraud, waste, and abuse. Any product published or issued pursuant to a waiver under this paragraph shall include a statement that work for such product was not conducted in accordance with the standards referred to in paragraph (1) and an explanation why such standards were not employed."

Inspector General for Committee for Purchase From People Who Are Blind or Severely Disabled

Pub. L. 114–113, div. H, title IV, §401(b), Dec. 18, 2015, 129 Stat. 2640, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 18, 2015], the Chairman of the Committee for Purchase From People Who Are Blind or Severely Disabled shall appoint an Inspector General for the Committee."

[Pub. L. 114–113, div. H, title IV, §401(c), Dec. 18, 2015, 129 Stat. 2640, provided that: "This section [amending former section 8G of Pub. L. 95–452 (see this section), and enacting provisions set out as a note above], and the amendments made by this section, shall take effect on the date that is 180 days after the date of the enactment of this Act [Dec. 18, 2015]."]

Amtrak Inspector General

Pub. L. 114–94, div. A, title XI, §11314, Dec. 4, 2015, 129 Stat. 1674, as amended by Pub. L. 117–286, §4(b)(13), Dec. 27, 2022, 136 Stat. 4344, provided that:

"(a) Authority.—

"(1) In general.—The Inspector General of Amtrak shall have the authority available to other Inspectors General, as necessary in carrying out the duties specified in chapter 4 of title 5, United States Code, to investigate any alleged violation of sections 286, 287, 371, 641, 1001, 1002 and 1516 of title 18, United States Code.

"(2) Agency.—For purposes of sections 286, 287, 371, 641, 1001, 1002, and 1516 of title 18, United States Code, Amtrak and the Amtrak Office of Inspector General, shall be considered a corporation in which the United States has a proprietary interest as set forth in section 6 of such title.

"(b) Assessment.—The Inspector General of Amtrak shall—

"(1) not later than 60 days after the date of enactment of this Act [Dec. 4, 2015], initiate an assessment to determine whether current expenditures or procurements involving Amtrak's fulfillment of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) utilize competitive, market-driven provisions that are applicable throughout the entire term of such related expenditures or procurements; and

"(2) not later than 6 months after the date of enactment of this Act, transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives the assessment under paragraph (1).

"(c) Limitation.—The authority provided by subsection (a) shall be effective only with respect to a fiscal year for which Amtrak receives a Federal subsidy."

Inspector General at the Commission on Civil Rights

Pub. L. 113–76, div. B, title IV, Jan. 17, 2014, 128 Stat. 75, provided in part: "That the Inspector General for the Commission on Civil Rights (CCR IG), as provided in Public Law 113–6 [set out below], is authorized to close out all work related to pending or closed investigations, to complete pending investigations, and to terminate all activities related to the duties, responsibilities and authorities of the CCR IG: Provided further, That when the CCR IG concludes that all pending investigations have been completed, all work related to pending or closed investigations has been closed out, and all activities related to the duties, responsibilities and authorities of the CCR IG have ended, the CCR IG shall certify that conclusion to the Committees on Appropriations of the House of Representatives and the Senate, and the Office of the CCR IG shall then be terminated".

Pub. L. 113–6, div. B, title IV, Mar. 26, 2013, 127 Stat. 266, as amended by Pub. L. 117–286, §4(b)(14), Dec. 27, 2022, 136 Stat. 4344, provided in part: "That there shall be an Inspector General at the Commission on Civil Rights who shall have the duties, responsibilities, and authorities specified in chapter 4 of title 5, United States Code: Provided further, That an individual appointed to the position of Inspector General of the Government Accountability Office (GAO) shall, by virtue of such appointment, also hold the position of Inspector General of the Commission on Civil Rights: Provided further, That the Inspector General of the Commission on Civil Rights shall utilize personnel of the Office of Inspector General of GAO in performing the duties of the Inspector General of the Commission on Civil Rights, and shall not appoint any individuals to positions within the Commission on Civil Rights".

Similar provisions were contained in the following prior appropriation act:

Pub. L. 112–55, div. B, title IV, Nov. 18, 2011, 125 Stat. 628.

Special Inspector General for Afghanistan Reconstruction

Pub. L. 118–159, div. G, title LXXVIII, §7809(b)–(e), Dec. 23, 2024, 138 Stat. 2562, 2563, provided that:

"(b) Eligibility for ICTAP.—Any individual who is an employee of the Office of the Special Inspector General for Afghanistan Reconstruction on the date of the enactment of this section [Dec. 23, 2024] shall be—

"(1) given priority consideration for appointment under the Interagency Career Transition Assistance Program under subpart G of part 330 of title 5, Code of Federal Regulations (or any successor regulation), subject to the terms and conditions of such Program; and

"(2) considered to be displaced and ICTAP-eligible as those terms are defined in section 330.702 of such subpart (or any successor regulation) for purposes of the Program; and

"(3) considered to have established proof of eligibility under section 330.710 of such subpart (or any successor regulation) for the purposes of the Program.

"(c) Appointment to the Competitive Service.—Any individual described in subsection (b) who is found to be well qualified for a position may be appointed in the competitive service without competitive examination.

"(d) Regulations.—The Director of the Office of Personnel Management may prescribe regulations for the administration of this section.

"(e) Use of Unobligated Funds.—Any unobligated funds remaining available for the Office of the Special Inspector General for Afghanistan Reconstruction on February 1, 2026, may be used by the Office of Inspector General of the Department of State."

Pub. L. 110–181, div. A, title XII, §1229, Jan. 28, 2008, 122 Stat. 378, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(11), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 111–38, §1, June 30, 2009, 123 Stat. 1932; Pub. L. 117–286, §4(b)(15), Dec. 27, 2022, 136 Stat. 4344; Pub. L. 118–159, div. G, title LXXVIII, §7809(a), Dec. 23, 2024, 138 Stat. 2562, provided that:

"(a) Purposes.—The purposes of this section are as follows:

"(1) To provide for the independent and objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated or otherwise made available for the reconstruction of Afghanistan.

"(2) To provide for the independent and objective leadership and coordination of, and recommendations on, policies designed to—

"(A) promote economy efficiency, and effectiveness in the administration of the programs and operations described in paragraph (1); and

"(B) prevent and detect waste, fraud, and abuse in such programs and operations.

"(3) To provide for an independent and objective means of keeping the Secretary of State and the Secretary of Defense fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress on corrective action.

"(b) Office of Inspector General.—There is hereby established the Office of the Special Inspector General for Afghanistan Reconstruction to carry out the purposes of subsection (a).

"(c) Appointment of Inspector General; Removal.—

"(1) Appointment.—The head of the Office of the Special Inspector General for Afghanistan Reconstruction is the Special Inspector General for Afghanistan Reconstruction (in this section referred to as the 'Inspector General'), who shall be appointed by the President. The President may appoint the Special Inspector General for Iraq Reconstruction to serve as the Special Inspector General for Afghanistan Reconstruction, in which case the Special Inspector General for Iraq Reconstruction shall have all of the duties, responsibilities, and authorities set forth under this section with respect to such appointed position for the purpose of carrying out this section.

"(2) Qualifications.—The appointment of the Inspector General shall be made solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.

"(3) Deadline for appointment.—The appointment of an individual as Inspector General shall be made not later than 30 days after the date of the enactment of this Act [Jan. 28, 2008].

"(4) Compensation.—The annual rate of basic pay of the Inspector General shall be the annual rate of basic pay provided for positions at level IV of the Executive Schedule under section 5315 of title 5, United States Code.

"(5) Prohibition on political activities.—For purposes of section 7324 of title 5, United States Code, the Inspector General shall not be considered an employee who determines policies to be pursued by the United States in the nationwide administration of Federal law.

"(6) Removal.—The Inspector General shall be removable from office in accordance with the provisions of section 403(b) of title 5, United States Code.

"(d) Assistant Inspectors General.—The Inspector General shall, in accordance with applicable laws and regulations governing the civil service—

"(1) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations supported by amounts appropriated or otherwise made available for the reconstruction of Afghanistan; and

"(2) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations.

"(e) Supervision.—

"(1) In general.—Except as provided in paragraph (2), the Inspector General shall report directly to, and be under the general supervision of, the Secretary of State and the Secretary of Defense.

"(2) Independence to conduct investigations and audits.—No officer of the Department of Defense, the Department of State, or the United States Agency for International Development shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation related to amounts appropriated or otherwise made available for the reconstruction of Afghanistan or from issuing any subpoena during the course of any such audit or investigation.

"(f) Duties.—

"(1) Oversight of afghanistan reconstruction.—It shall be the duty of the Inspector General to conduct, supervise, and coordinate audits and investigations of the treatment, handling, and expenditure of amounts appropriated or otherwise made available for the reconstruction of Afghanistan, and of the programs, operations, and contracts carried out utilizing such funds, including—

"(A) the oversight and accounting of the obligation and expenditure of such funds;

"(B) the monitoring and review of reconstruction activities funded by such funds;

"(C) the monitoring and review of contracts funded by such funds;

"(D) the monitoring and review of the transfer of such funds and associated information between and among departments, agencies, and entities of the United States and private and nongovernmental entities;

"(E) the maintenance of records on the use of such funds to facilitate future audits and investigations of the use of such fund;

"(F) the monitoring and review of the effectiveness of United States coordination with the Government of Afghanistan and other donor countries in the implementation of the Afghanistan Compact and the Afghanistan National Development Strategy; and

"(G) the investigation of overpayments such as duplicate payments or duplicate billing and any potential unethical or illegal actions of Federal employees, contractors, or affiliated entities and the referral of such reports, as necessary, to the Department of Justice to ensure further investigations, prosecutions, recovery of further funds, or other remedies.

"(2) Other duties related to oversight.—The Inspector General shall establish, maintain, and oversee such systems, procedures, and controls as the Inspector General considers appropriate to discharge the duties under paragraph (1).

"(3) Duties and responsibilities under chapter 4 of title 5, united states code.—In addition to the duties specified in paragraphs (1) and (2), the Inspector General shall also have the duties and responsibilities of inspectors general under chapter 4 of title 5, United States Code.

"(4) Coordination of efforts.—In carrying out the duties, responsibilities, and authorities of the Inspector General under this section, the Inspector General shall coordinate with, and receive the cooperation of each of the following:

"(A) The Inspector General of the Department of Defense.

"(B) The Inspector General of the Department of State.

"(C) The Inspector General of the United States Agency for International Development.

"(g) Powers and Authorities.—

"(1) Authorities under chapter 4 of title 5, united states code.—In carrying out the duties specified in subsection (f), the Inspector General shall have the authorities provided in section 406 of title 5, United States Code, including the authorities under subsection (e) [now (f)] of such section.

"(2) Audit standards.—The Inspector General shall carry out the duties specified in subsection (f)(1) in accordance with section 404(b)(1) of title 5, United States Code.

"(h) Personnel, Facilities, and Other Resources.—

"(1) Personnel.—

"(A) In general.—The Inspector General may select, appoint, and employ such officers and employees as may be necessary for carrying out the duties of the Inspector General, subject 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.

"(B) Additional authorities.—

"(i) In general.—Subject to clause (ii), the Inspector General may exercise the authorities of subsections (b) through (i) of section 3161 of title 5, United States Code (without regard to subsection (a) of that section).

"(ii) Periods of appointments.—In exercising the employment authorities under subsection (b) of section 3161 of title 5, United States Code, as provided under clause (i) of this subparagraph—

     "(I) paragraph (2) of that subsection (relating to periods of appointments) shall not apply; and

     "(II) no period of appointment may exceed the date on which the Office of the Special Inspector General for Afghanistan Reconstruction terminates under subsection (o).

"(2) Employment of experts and consultants.—The Inspector General may obtain services as authorized by section 3109 of title 5, United States Code, at daily rates not to exceed the equivalent rate prescribed for grade GS–15 of the General Schedule by section 5332 of such title.

"(3) Contracting authority.—To the extent and in such amounts as may be provided in advance by appropriations Acts, the Inspector General may enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and make such payments as may be necessary to carry out the duties of the Inspector General.

"(4) Resources.—The Secretary of State or the Secretary of Defense, as appropriate, shall provide the Inspector General with appropriate and adequate office space at appropriate locations of the Department of State or the Department of Defense, as the case may be, in Afghanistan, together with such equipment, office supplies, and communications facilities and services as may be necessary for the operation of such offices, and shall provide necessary maintenance services for such offices and the equipment and facilities located therein.

"(5) Assistance from federal agencies.—

"(A) In general.—Upon request of the Inspector General for information or assistance from any department, agency, or other entity of the Federal Government, the head of such entity shall, insofar as is practicable and not in contravention of any existing law, furnish such information or assistance to the Inspector General, or an authorized designee.

"(B) Reporting of refused assistance.—Whenever information or assistance requested by the Inspector General is, in the judgment of the Inspector General, unreasonably refused or not provided, the Inspector General shall report the circumstances to the Secretary of State or the Secretary of Defense, as appropriate, and to the appropriate congressional committees without delay.

"(6) Use of personnel, facilities, and other resources of the office of the special inspector general for iraq reconstruction.—Upon the request of the Inspector General, the Special Inspector General for Iraq Reconstruction—

"(A) may detail, on a reimbursable basis, any of the personnel of the Office of the Special Inspector General for Iraq Reconstruction to the Office of the Inspector General for Afghanistan Reconstruction for the purpose of carrying out this section; and

"(B) may provide, on a reimbursable basis, any of the facilities or other resources of the Office of the Special Inspector General for Iraq Reconstruction to the Office of the Inspector General for Afghanistan Reconstruction for the purpose of carrying out this section.

"(i) Reports.—

"(1) Quarterly reports.—Not later than 30 days after the end of each fiscal-year quarter, the Inspector General shall submit to the appropriate congressional committees a report summarizing, for the period of that quarter and, to the extent possible, the period from the end of such quarter to the time of the submission of the report, the activities during such period of the Inspector General and the activities under programs and operations funded with amounts appropriated or otherwise made available for the reconstruction of Afghanistan. Each report shall include, for the period covered by such report, a detailed statement of all obligations, expenditures, and revenues associated with reconstruction and rehabilitation activities in Afghanistan, including the following:

"(A) Obligations and expenditures of appropriated funds.

"(B) A project-by-project and program-by-program accounting of the costs incurred to date for the reconstruction of Afghanistan, together with the estimate of the Department of Defense, the Department of State, and the United States Agency for International Development, as applicable, of the costs to complete each project and each program.

"(C) Revenues attributable to or consisting of funds provided by foreign nations or international organizations to programs and projects funded by any department or agency of the United States Government, and any obligations or expenditures of such revenues.

"(D) Revenues attributable to or consisting of foreign assets seized or frozen that contribute to programs and projects funded by any department or agency of the United States Government, and any obligations or expenditures of such revenues.

"(E) Operating expenses of agencies or entities receiving amounts appropriated or otherwise made available for the reconstruction of Afghanistan.

"(F) In the case of any contract, grant, agreement, or other funding mechanism described in paragraph (2)—

"(i) the amount of the contract, grant, agreement, or other funding mechanism;

"(ii) a brief discussion of the scope of the contract, grant, agreement, or other funding mechanism;

"(iii) a discussion of how the department or agency of the United States Government involved in the contract, grant, agreement, or other funding mechanism identified, and solicited offers from, potential individuals or entities to perform the contract, grant, agreement, or other funding mechanism, together with a list of the potential individuals or entities that were issued solicitations for the offers; and

"(iv) the justification and approval documents on which was based the determination to use procedures other than procedures that provide for full and open competition.

"(2) Covered contracts, grants, agreements, and funding mechanisms.—A contract, grant, agreement, or other funding mechanism described in this paragraph is any major contract, grant, agreement, or other funding mechanism that is entered into by any department or agency of the United States Government that involves the use of amounts appropriated or otherwise made available for the reconstruction of Afghanistan with any public or private sector entity for any of the following purposes:

"(A) To build or rebuild physical infrastructure of Afghanistan.

"(B) To establish or reestablish a political or societal institution of Afghanistan.

"(C) To provide products or services to the people of Afghanistan.

"(3) Public availability.—The Inspector General shall publish on a publicly-available Internet website each report under paragraph (1) of this subsection in English and other languages that the Inspector General determines are widely used and understood in Afghanistan.

"(4) Form.—Each report required under this subsection shall be submitted in unclassified form, but may include a classified annex if the Inspector General considers it necessary.

"(5) Rule of construction.—Nothing in this subsection shall be construed to authorize the public disclosure of information that is—

"(A) specifically prohibited from disclosure by any other provision of law;

"(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or

"(C) a part of an ongoing criminal investigation.

"(j) Report Coordination.—

"(1) Submission to secretaries of state and defense.—The Inspector General shall also submit each report required under subsection (i) to the Secretary of State and the Secretary of Defense.

"(2) Submission to congress.—Not later than 30 days after receipt of a report under paragraph (1), the Secretary of State or the Secretary of Defense may submit to the appropriate congressional committees any comments on the matters covered by the report as the Secretary of State or the Secretary of Defense, as the case may be, considers appropriate. Any comments on the matters covered by the report shall be submitted in unclassified form, but may include a classified annex if the Secretary of State or the Secretary of Defense, as the case may be, considers it necessary.

"(k) Transparency.—

"(1) Report.—Not later than 60 days after submission to the appropriate congressional committees of a report under subsection (i), the Secretary of State and the Secretary of Defense shall jointly make copies of the report available to the public upon request, and at a reasonable cost.

"(2) Comments on matters covered by report.—Not later than 60 days after submission to the appropriate congressional committees under subsection (j)(2) of comments on a report under subsection (i), the Secretary of State and the Secretary of Defense shall jointly make copies of the comments available to the public upon request, and at a reasonable cost.

"(l) Waiver.—

"(1) Authority.—The President may waive the requirement under paragraph (1) or (2) of subsection (k) with respect to availability to the public of any element in a report under subsection (i), or any comment under subsection (j)(2), if the President determines that the waiver is justified for national security reasons.

"(2) Notice of waiver.—The President shall publish a notice of each waiver made under this subsection in the Federal Register no later than the date on which a report required under subsection (i), or any comment under subsection (j)(2), is submitted to the appropriate congressional committees. The report and comments shall specify whether waivers under this subsection were made and with respect to which elements in the report or which comments, as appropriate.

"(m) Definitions.—In this section:

"(1) Amounts appropriated or otherwise made available for the reconstruction of afghanistan.—The term 'amounts appropriated or otherwise made available for the reconstruction of Afghanistan' means—

"(A) amounts appropriated or otherwise made available for any fiscal year—

"(i) to the Afghanistan Security Forces Fund; or

"(ii) to the program to assist the people of Afghanistan established under subsection (a)(2) of section 1202 of the National Defense Authorization for Fiscal Year 2006 (Public Law 109–163; 119 Stat. 3455–3456); and

"(B) amounts appropriated or otherwise made available for any fiscal year for the reconstruction of Afghanistan under—

"(i) the Economic Support Fund;

"(ii) the International Narcotics Control and Law Enforcement account; or

"(iii) any other provision of law.

"(2) Appropriate congressional committees.—The term 'appropriate congressional committees' means—

"(A) the Committees on Appropriations, Armed Services, and Foreign Relations of the Senate; and

"(B) the Committees on Appropriations, Armed Services, and Foreign Affairs of the House of Representatives.

"(n) Authorization of Appropriations.—

"(1) In general.—There is authorized to be appropriated $20,000,000 for fiscal year 2008 to carry out this section.

"(2) Offset.—The amount authorized to be appropriated by section 1513 [122 Stat. 428] for the Afghanistan Security Forces Fund is hereby reduced by $20,000,000.

"(o) Termination.—

"(1) In general.—The Office of the Special Inspector General for Afghanistan Reconstruction shall terminate on January 31, 2026.

"(2) Final report.—The Inspector General shall, prior to the termination of the Office of the Special Inspector General for Afghanistan Reconstruction under paragraph (1), prepare and submit to the appropriate congressional committees a final forensic audit report on programs and operations funded with amounts appropriated or otherwise made available for the reconstruction of Afghanistan."

Inspector General of Chemical Safety and Hazard Investigation Board

Pub. L. 118–42, div. E, title III, Mar. 9, 2024, 138 Stat. 278, provided in part: "That notwithstanding any other provision of law, the individual appointed to the position of Inspector General of the Environmental Protection Agency (EPA) shall, by virtue of such appointment, also hold the position of Inspector General of the Board: Provided further, That notwithstanding any other provision of law, the Inspector General of the Board shall utilize personnel of the Office of Inspector General of EPA in performing the duties of the Inspector General of the Board, and shall not appoint any individuals to positions within the Board."

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 117–328, div. G, title III, Dec. 29, 2022, 136 Stat. 4813.

Pub. L. 117–103, div. G, title III, Mar. 15, 2022, 136 Stat. 402.

Pub. L. 116–260, div. G, title III, Dec. 27, 2020, 134 Stat. 1529.

Pub. L. 116–94, div. D, title III, Dec. 20, 2019, 133 Stat. 2735.

Pub. L. 116–6, div. E, title III, Feb. 15, 2019, 133 Stat. 252.

Pub. L. 115–141, div. G, title III, Mar. 23, 2018, 132 Stat. 681.

Pub. L. 115–31, div. G, title III, May 5, 2017, 131 Stat. 488.

Pub. L. 114–113, div. G, title III, Dec. 18, 2015, 129 Stat. 2569.

Pub. L. 113–235, div. F, title III, Dec. 16, 2014, 128 Stat. 2438.

Pub. L. 113–76, div. G, title III, Jan. 17, 2014, 128 Stat. 332.

Pub. L. 112–74, div. E, title III, Dec. 23, 2011, 125 Stat. 1031.

Pub. L. 111–88, div. A, title III, Oct. 30, 2009, 123 Stat. 2950.

Pub. L. 111–8, div. E, title III, Mar. 11, 2009, 123 Stat. 739.

Pub. L. 110–161, div. F, title III, Dec. 26, 2007, 121 Stat. 2139.

Pub. L. 109–54, title III, Aug. 2, 2005, 119 Stat. 543.

Pub. L. 108–447, div. I, title III, Dec. 8, 2004, 118 Stat. 3322.

Pub. L. 108–199, div. G, title III, Jan. 23, 2004, 118 Stat. 399.

Pub. L. 107–73, title III, Nov. 26, 2001, 115 Stat. 679, as amended by Pub. L. 117–286, §4(b)(16), Dec. 27, 2022, 136 Stat. 4345, provided in part: "That, hereafter, there shall be an Inspector General at the [Chemical Safety and Hazard Investigation] Board who shall have the duties, responsibilities, and authorities specified in chapter 4 of title 5, United States Code: Provided further, That an individual appointed to the position of Inspector General of the Federal Emergency Management Agency (FEMA) shall, by virtue of such appointment, also hold the position of Inspector General of the Board: Provided further, That the Inspector General of the Board shall utilize personnel of the Office of Inspector General of FEMA in performing the duties of the Inspector General of the Board, and shall not appoint any individuals to positions within the Board."

[For transfer of all functions, personnel, assets, components, authorities, grant programs, and liabilities of the Federal Emergency Management Agency, including the functions of the Under Secretary for Federal Emergency Management relating thereto, to the Federal Emergency Management Agency, see section 315(a)(1) of Title 6, Domestic Security.]

[For transfer of functions, personnel, assets, and liabilities of the Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Management Agency relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see former section 313(1) and sections 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.]

Similar provisions were contained in the following prior appropriations act:

Pub. L. 106–377, §1(a)(1) [title III], Oct. 27, 2000, 114 Stat. 1441, 1441A-36.

Pub. L. 108–7, div. K, title III, Feb. 20, 2003, 117 Stat. 515, provided in part: "That notwithstanding any other provision of law, the Inspector General of the Federal Emergency Management Agency shall hereafter also serve as the Inspector General of the Chemical Safety and Hazard Investigation Board."

Similar provisions were contained in the following prior appropriations acts:

Pub. L. 107–73, title III, Nov. 26, 2001, 115 Stat. 688.

Pub. L. 106–377, §1(a)(1) [title III], Oct. 27, 2000, 114 Stat. 1441, 1441A-46.

Special Inspector General for Iraq Reconstruction

Pub. L. 108–375, div. A, title XII, §1203(b), Oct. 28, 2004, 118 Stat. 2079, provided that: "The individual serving as the Inspector General of the Coalition Provisional Authority as of the date of the enactment of this Act [Oct. 28, 2004] may continue to serve in that position after that date without reappointment under paragraph (1) of section 3001(c) of the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004 [Pub. L. 108–106, set out below], but remaining subject to removal as specified in paragraph (4) of that section."

Pub. L. 108–106, title III, §3001, Nov. 6, 2003, 117 Stat. 1234, as amended by Pub. L. 108–375, div. A, title XII, §1203(a)(1)–(3)(A), (c)–(j), Oct. 28, 2004, 118 Stat. 2078–2081; Pub. L. 109–102, title V, §599, Nov. 14, 2005, 119 Stat. 2240; Pub. L. 109–364, div. A, title X, §§1054(b), 1071(g)(13), Oct. 17, 2006, 120 Stat. 2397, 2403; Pub. L. 109–440, §2, Dec. 20, 2006, 120 Stat. 3286; Pub. L. 110–28, title III, §3801, May 25, 2007, 121 Stat. 147; Pub. L. 110–181, div. A, title XII, §1221, Jan. 28, 2008, 122 Stat. 371; Pub. L. 117–286, §4(b)(17), Dec. 27, 2022, 136 Stat. 4345, provided that:

"(a) Purposes.—The purposes of this section are as follows:

"(1) To provide for the independent and objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated or otherwise made available for the reconstruction of Iraq.

"(2) To provide for the independent and objective leadership and coordination of, and recommendations on, policies designed to—

"(A) promote economy efficiency, and effectiveness in the administration of such programs and operations; and

"(B) prevent and detect waste, fraud, and abuse in such programs and operations.

"(3) To provide for an independent and objective means of keeping the Secretary of State and the Secretary of Defense fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress for corrective action.

"(b) Office of Inspector General.—There is hereby established the Office of the Special Inspector General for Iraq Reconstruction.

"(c) Appointment of Inspector General; Removal.—(1) The head of the Office of the Special Inspector General for Iraq Reconstruction is the Special Inspector General for Iraq Reconstruction (in this section referred to as the 'Inspector General'), who shall be appointed by the Secretary of Defense, in consultation with the Secretary of State.

"(2) The appointment of Inspector General shall be made solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.

"(3) The nomination of an individual as Inspector General shall be made not later than 30 days after the date of the enactment of this Act [Nov. 6, 2003].

"(4) The Inspector General shall be removable from office in accordance with the provisions of section 403(b) of title 5, United States Code.

"(5) For purposes of section 7324 of title 5, United States Code, the Inspector General shall not be considered an employee who determines policies to be pursued by the United States in the nationwide administration of Federal law.

"(6) The annual rate of basic pay of the Inspector General shall be the annual rate of basic pay provided for positions at level IV of the Executive Schedule under section 5315 of title 5, United States Code.

"(d) Assistant Inspectors General.—The Inspector General shall, in accordance with applicable laws and regulations governing the civil service—

"(1) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the performance of auditing activities relating to programs and operations supported by amounts appropriated or otherwise made available for the reconstruction of Iraq; and

"(2) appoint an Assistant Inspector General for Investigations who shall have the responsibility for supervising the performance of investigative activities relating to such programs and operations.

"(e) Supervision.—(1) Except as provided in paragraph (2), the Inspector General shall report directly to, and be under the general supervision of, the Secretary of State and the Secretary of Defense.

"(2) No officer of the Department of Defense, the Department of State, or the United States Agency for International Development shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation related to amounts appropriated or otherwise made available for the reconstruction of Iraq or from issuing any subpoena during the course of any such audit or investigation.

"(f) Duties.—(1) It shall be the duty of the Inspector General to conduct, supervise, and coordinate audits and investigations of the treatment, handling, and expenditure of amounts appropriated or otherwise made available for the reconstruction of Iraq, and of the programs, operations, and contracts carried out utilizing such funds, including—

"(A) the oversight and accounting of the obligation and expenditure of such funds;

"(B) the monitoring and review of reconstruction activities funded by such funds;

"(C) the monitoring and review of contracts funded by such funds;

"(D) the monitoring and review of the transfer of such funds and associated information between and among departments, agencies, and entities of the United States and private and nongovernmental entities; and

"(E) the maintenance of records on the use of such funds to facilitate future audits and investigations of the use of such funds.

"(2) The Inspector General shall establish, maintain, and oversee such systems, procedures, and controls as the Inspector General considers appropriate to discharge the duty under paragraph (1).

"(3) In addition to the duties specified in paragraphs (1) and (2), the Inspector General shall also have the duties and responsibilities of inspectors general under chapter 4 of title 5, United States Code.

"(4) In carrying out the duties, responsibilities, and authorities of the Inspector General under this section, the Inspector General shall coordinate with, and receive the cooperation of, each of the following:

"(A) The Inspector General of the Department of State.

"(B) The Inspector General of the Department of Defense.

"(C) The Inspector General of the United States Agency for International Development.

"(g) Powers and Authorities.—(1) In carrying out the duties specified in subsection (f), the Inspector General shall have the authorities provided in section 406 of title 5, United States Code, including the authorities under subsection (e) [now (f)] of such section.

"(2) The Inspector General shall carry out the duties specified in subsection (f)(1) in accordance with section 404(b)(1) of title 5, United States Code.

"(h) Personnel, Facilities, and Other Resources.—(1) The Inspector General may select, appoint, and employ such officers and employees as may be necessary for carrying out the duties of the Inspector General, subject 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 may exercise the authorities of subsections (b) through (i) of section 3161 of title 5, United States Code (without regard to subsection (a) of such section).

"(2) The Inspector General may obtain services as authorized by section 3109 of title 5, United States Code, at daily rates not to exceed the equivalent rate prescribed for grade GS–15 of the General Schedule by section 5332 of such title.

"(3) To the extent and in such amounts as may be provided in advance by appropriations Acts, the Inspector General may enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and make such payments as may be necessary to carry out the duties of the Inspector General.

"(4)(A) Upon request of the Inspector General for information or assistance from any department, agency, or other entity of the Federal Government, the head of such entity shall, insofar as is practicable and not in contravention of any existing law, furnish such information or assistance to the Inspector General, or an authorized designee.

"(B) Whenever information or assistance requested by the Inspector General is, in the judgment of the Inspector General, unreasonably refused or not provided, the Inspector General shall report the circumstances to the Secretary of State or Secretary of Defense, as appropriate, and to the appropriate committees of Congress without delay.

"(5) The Secretary of State or Secretary of Defense, as appropriate, shall provide the Inspector General with appropriate and adequate office space within the Department of Defense or at appropriate locations of the Department of State in Iraq, together with such equipment, office supplies, and communications facilities and services as may be necessary for the operation of such offices, and shall provide necessary maintenance services for such offices and the equipment and facilities located therein.

"(i) Reports.—(1) Not later than 30 days after the end of each fiscal-year quarter, the Inspector General shall submit to the appropriate committees of Congress a report summarizing, for the period of that quarter and, to the extent possible, the period from the end of such quarter to the time of the submission of the report, the activities during such period of the Inspector General and the activities under programs and operations funded with amounts appropriated or otherwise made available for the reconstruction of Iraq. Each report shall include, for the period covered by such report, a detailed statement of all obligations, expenditures, and revenues associated with reconstruction and rehabilitation activities in Iraq, including the following:

"(A) Obligations and expenditures of appropriated funds.

"(B) A project-by-project and program-by-program accounting of the costs incurred to date for the reconstruction of Iraq, together with the estimate of the Department of Defense, the Department of State, and the United States Agency for International Development, as applicable, of the costs to complete each project and each program.

"(C) Revenues attributable to or consisting of funds provided by foreign nations or international organizations, and any obligations or expenditures of such revenues.

"(D) Revenues attributable to or consisting of foreign assets seized or frozen, and any obligations or expenditures of such revenues.

"(E) Operating expenses of agencies or entities receiving amounts appropriated or otherwise made available for the reconstruction of Iraq.

"(F) In the case of any contract described in paragraph (2)—

"(i) the amount of the contract or other agreement;

"(ii) a brief discussion of the scope of the contract or other agreement;

"(iii) a discussion of how the contracting department or agency identified, and solicited offers from, potential contractors to perform the contract, together with a list of the potential contractors that were issued solicitations for the offers; and

"(iv) the justification and approval documents on which was based the determination to use procedures other than procedures that provide for full and open competition.

"(2) A contract described in this paragraph is any major contract or other agreement that is entered into by any department or agency of the United States Government that involves the use of amounts appropriated or otherwise made available for the reconstruction of Iraq with any public or private sector entity for any of the following purposes:

"(A) To build or rebuild physical infrastructure of Iraq.

"(B) To establish or reestablish a political or societal institution of Iraq.

"(C) To provide products or services to the people of Iraq.

"(3) The Inspector General shall submit to the appropriate committees of Congress semiannual reports meeting the requirements of section 405 of title 5, United States Code. The first such report for a year, covering the first six months of the year, shall be submitted not later than July 31 of that year, and the second such report, covering the second six months of the year, shall be submitted not later than January 31 of the following year.

"(4) The Inspector General shall publish each report under this subsection in both English and Arabic on the Internet website of the Department of State and of the Department of Defense.

"(5) Each report under this subsection may include a classified annex if the Inspector General considers it necessary.

"(6) Nothing in this subsection shall be construed to authorize the public disclosure of information that is—

"(A) specifically prohibited from disclosure by any other provision of law;

"(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or

"(C) a part of an ongoing criminal investigation.

"(j) Report Coordination.—(1) The Inspector General shall also submit each report under subsection (i) to the Secretary of State and the Secretary of Defense.

"(2)(A) Not later than 30 days after receipt of a report under paragraph (1), the Secretary of State or the Secretary of Defense may submit to the appropriate committees of Congress any comments on the matters covered by the report as the Secretary of State or the Secretary of Defense, as the case may be, considers appropriate.

"(B) A report under this paragraph may include a classified annex if the Secretary of State or the Secretary of Defense, as the case may be, considers it necessary.

"(k) Transparency.—(1) Not later than 60 days after the date of the submittal to Congress of a report under subsection (i), the Secretary of State and the Secretary of Defense shall jointly make copies of such report available to the public upon request, and at a reasonable cost.

"(2) Not later than 60 days after the date of the submittal to Congress under subsection (j)(2) of comments on a report under subsection (i), the Secretary of State and the Secretary of Defense shall jointly make copies of such comments available to the public upon request, and at a reasonable cost.

"(l) Waiver.—(1) The President may waive the requirement under paragraph (1) or (3) of subsection (i) for the inclusion in a report under such paragraph of any element otherwise provided for under such paragraph if the President determines that the waiver is justified for national security reasons.

"(2) The President shall publish a notice of each waiver made under this subsection in the Federal Register no later than the date on which the reports required under paragraph (1) or (3) of subsection (i) are submitted to Congress. The reports required under paragraph (1) or (3) of subsection (i) shall specify whether waivers under this subsection were made and with respect to which elements.

"(m) Definitions.—In this section—

"(1) the term 'appropriate committees of Congress' means—

"(A) the Committees on Appropriations, Armed Services, and Foreign Relations of the Senate; and

"(B) the Committees on Appropriations, Armed Services, Foreign Affairs, and Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives; and

"(2) the term 'amounts appropriated or otherwise made available for the reconstruction of Iraq' means amounts appropriated or otherwise made available for any fiscal year—

"(A) to the Iraq Relief and Reconstruction Fund, the Iraq Security Forces Fund, and the Commanders' Emergency Response Program authorized under section 1202 of the National Defense Authorization for Fiscal Year 2006 (Public Law 109–163; 119 Stat. 3455–3456); or

"(B) for assistance for the reconstruction of Iraq under—

"(i) the Economic Support Fund authorized under chapter 4 of part II of the Foreign Assistance Act of 1961 (22 U.S.C. 2346 et seq.);

"(ii) the International Narcotics Control and Law Enforcement account authorized under section 481 of the Foreign Assistance Act of 1961 (22 U.S.C. 2291); or

"(iii) any other provision of law.

"(n) Funding.—(1) Of the amounts appropriated for fiscal year 2004 for the Operating Expenses of the Coalition Provisional Authority in title II of this Act [117 Stat. 1226], $75,000,000 shall be available to carry out this section.

"(2) The amount available under paragraph (1) shall remain available until expended.

"(o) Termination.—(1) The Office of the Inspector General shall terminate 180 days after the date on which amounts appropriated or otherwise made available for the reconstruction of Iraq that are unexpended are less than $250,000,000.

"(2) The Special Inspector General for Iraq Reconstruction shall, prior to the termination of the Office of the Special Inspector General under paragraph (1), prepare a final forensic audit report on all amounts appropriated or otherwise made available for the reconstruction of Iraq."

Amtrak Not Federal Entity; Federal Subsidy

Pub. L. 105–134, title IV, §409(b), (c), Dec. 2, 1997, 111 Stat. 2587, as amended by Pub. L. 117–286, §4(b)(18), Dec. 27, 2022, 136 Stat. 4345, provided that:

"(b) Amtrak Not Federal Entity.—Amtrak shall not be considered a Federal entity for purposes of chapter 4 of title 5, United States Code. The preceding sentence shall apply for any fiscal year for which Amtrak receives no Federal subsidy.

"(c) Federal Subsidy.—

"(1) Assessment.—In any fiscal year for which Amtrak requests Federal assistance, the Inspector General of the Department of Transportation shall review Amtrak's operations and conduct an assessment similar to the assessment required by section 202(a) [Pub. L. 105–134, 49 U.S.C. 24101 note]. The Inspector General shall report the results of the review and assessment to—

"(A) the President of Amtrak;

"(B) the Secretary of Transportation;

"(C) the United States Senate Committee on Appropriations;

"(D) the United States Senate Committee on Commerce, Science, and Transportation;

"(E) the United States House of Representatives Committee on Appropriations; and

"(F) the United States House of Representatives Committee on Transportation and Infrastructure.

"(2) Report.—The report shall be submitted, to the extent practicable, before any such committee reports legislation authorizing or appropriating funds for Amtrak for capital acquisition, development, or operating expenses.

"(3) Special effective date.—This subsection takes effect 1 year after the date of enactment of this Act [Dec. 2, 1997]."

§416. Additional provisions with respect to Inspectors General of the intelligence community

(a) Definitions.—In this section:

(1) Intelligence committees.—The term "intelligence committees" means the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

(2) Urgent concern.—The term "urgent concern" means any of the following:

(A) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters.

(B) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity.

(C) An action, including a personnel action described in section 2302(a)(2)(A) of this title constituting reprisal or threat of reprisal prohibited under section 407(c) of this title in response to an employee's reporting an urgent concern in accordance with this section.

(3) Employee.—The term "employee" includes a former employee or former contractor, if the complaint or information reported pursuant to this section arises from or relates to the period during which the former employee or former contractor was an employee or contractor, as the case may be.

(4) Intelligence community.—The term "intelligence community" has the meaning given such term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).

(b) Complaint or Information With Respect to Urgent Concern.—

(1) To whom reports may be made; support for written submission.—

(A) Inspector general of department of defense.—An employee of the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, or the National Security Agency, or of a contractor of any of those Agencies, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information in writing to the Inspector General of the Department of Defense (or designee).

(B) Inspector general of intelligence community.—An employee of an element of the intelligence community, an employee assigned or detailed to an element of the intelligence community, or an employee of a contractor to the intelligence community, who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information in writing to the Inspector General of the Intelligence Community.

(C) Inspector general of department of justice.—An employee of the Federal Bureau of Investigation, or of a contractor of the Bureau, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information in writing to the Inspector General of the Department of Justice (or designee).

(D) Other appropriate inspector general.—Any other employee of, or contractor to, an executive agency, or element or unit thereof, determined by the President under section 2302(a)(2)(C)(ii) of this title, to have as its principal function the conduct of foreign intelligence or counterintelligence activities, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information in writing to the appropriate Inspector General (or designee) under this chapter, section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517), or section 103H(k) of the National Security Act of 1947 (50 U.S.C. 3033(k)).

(E) Support for written submission.—The Inspector General shall—

(i) provide reasonable support necessary to ensure that an employee can submit a complaint or information under this paragraph in writing; and

(ii) if such submission is not feasible, shall create a written record of the employee's verbal complaint or information and treat such written record as a written submission.

(2) Designee to report complaint or information to inspector general within 7 days.—If a designee of an Inspector General under this section receives a complaint or information of an employee with respect to an urgent concern, that designee shall report the complaint or information to the Inspector General within 7 calendar days of receipt.

(3) Designees of inspector general of department of defense.—The Inspectors General of the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the National Security Agency shall be designees of the Inspector General of the Department of Defense for purposes of this section.

(c) Initial Determinations and Transmittals.—

(1) Credibility.—In accordance with paragraph (2), the Inspector General shall determine whether a complaint or information reported under subsection (b) appears credible. Upon making such a determination, the Inspector General shall transmit to the head of the establishment notice of that determination, together with the complaint or information.

(2) Deadline for compliance.—The Inspector General shall make the determination under paragraph (1) with respect to a complaint or information reported under subsection (b) not later than the end of the 14-calendar-day period beginning on the date on which the employee who reported the complaint or information confirms to the Inspector General the intent of the employee to report to Congress that complaint or information.

(3) Conflict of interest.—If the head of an establishment determines that a complaint or information transmitted under paragraph (1) would create a conflict of interest for the head of the establishment, the head of the establishment shall return the complaint or information to the Inspector General with that determination and the Inspector General shall make the transmission to the Director of National Intelligence and, if the establishment is within the Department of Defense, to the Secretary of Defense. In such a case, the requirements of this section for the head of the establishment apply to each recipient of the Inspector General's transmission.

(d) Forwarding Transmittals.—Upon receipt of a transmittal from the Inspector General under subsection (c), the head of the establishment shall, within 7 calendar days of such receipt, forward such transmittal to the intelligence committees, together with any comments the head of the establishment considers appropriate.

(e) Submitting Complaint or Information to Congress.—

(1) In general.—If the Inspector General does not find credible under subsection (c) a complaint or information submitted to the Inspector General under subsection (b), or does not transmit the complaint or information to the head of the establishment in accurate form under subsection (c), the employee (subject to paragraph (2)) may submit the complaint or information to Congress by contacting either or both of the intelligence committees directly.

(2) Limitation.—The employee may contact the intelligence committees directly as described in paragraph (1) only if the employee—

(A) before making such a contact, furnishes to the head of the establishment, through the Inspector General, a statement of the employee's complaint or information and notice of the employee's intent to contact the intelligence committees directly; and

(B) obtains and follows from the head of the establishment, through the Inspector General, direction on how to contact the intelligence committees in accordance with appropriate security practices.

(3) Intelligence committee receipt of complaint or information.—A member or employee of one of the intelligence committees who receives a complaint or information under paragraph (1) does so in that member or employee's official capacity as a member or employee of that committee.

(f) Notification.—The Inspector General shall notify an employee who reports a complaint or information under this section of each action taken under this section with respect to the complaint or information. Such notice shall be provided not later than 3 days after any such action is taken.

(g) No Judicial Review.—An action taken by the head of an establishment or an Inspector General under subsections (b) through (f) shall not be subject to judicial review.

(h) Notice of Submission and Date.—An individual who has submitted a complaint or information to an Inspector General under this section may notify any member of the Permanent Select Committee on Intelligence of the House of Representatives or the Select Committee on Intelligence of the Senate, or a staff member of either such Committee, of the fact that such individual has made a submission to that particular Inspector General, and of the date on which such submission was made.

(i) Protection for Individuals Making Authorized Disclosures.—

(1) Disclosure.—An individual may disclose classified information to an Inspector General of an element of the intelligence community in accordance with the applicable security standards and procedures established under section 102A or 803 of the National Security Act of 1947 (50 U.S.C. 3024, 3162a), chapter 12 of the Atomic Energy Act of 1954 (42 U.S.C. 2161 et seq.), Executive Order 13526 (50 U.S.C. 3161 note; relating to Classified National Security Information), or any applicable provision of law.

(2) Disclosure without clearance or authority.—

(A) Treatment.—A disclosure under paragraph (1) of classified information made by an individual without appropriate clearance or authority to access such classified information at the time of the disclosure, but that is otherwise made in accordance with applicable security standards and procedures, shall be treated as an authorized disclosure that does not violate a covered provision.

(B) Rule of construction.—Nothing in subparagraph (A) may be construed to limit or modify the obligation of an individual to appropriately store, handle, or disseminate classified information in accordance with applicable security guidance and procedures, including with respect to the removal or retention of classified information.

(C) Covered provision defined.—In this paragraph, the term "covered provision" means—

(i) any otherwise applicable nondisclosure agreement;

(ii) any otherwise applicable regulation or order issued under the authority of chapter 18 of the Atomic Energy Act of 1954 (42 U.S.C. 2271 et seq.) or Executive Order 13526;

(iii) section 798 of title 18; or

(iv) any other provision of law with respect to the unauthorized disclosure of national security information.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4242; Pub. L. 118–159, div. F, title LXVII, §§6701(c), 6702(c), Dec. 23, 2024, 138 Stat. 2512, 2514.)

Amendments Not Shown in Text

This section was derived from section 8H of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8H of Pub. L. 95–452 was amended by Pub. L. 117–103, div. X, title V, §502(b), Mar. 15, 2022, 136 Stat. 985, and by Pub. L. 117–263, div. F, title LXVI, §6609(b), Dec. 23, 2022, 136 Stat. 3560, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4242, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title.

Section 8H of Pub. L. 95–452 was amended by Pub. L. 117–103 as follows:

(1) in subsection (h)(1) [restated as subsection (a)(2) of this section], by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii), and (iii), respectively (and indenting such clauses accordingly);

(2) by redesignating subsection (h)(1) and (2) [restated as subsection (a)(2) and (1) of this section, respectively] as subparagraphs (A) and (B), respectively (and indenting such subparagraphs accordingly);

(3) in the matter preceding subparagraph (A), as redesignated, by inserting "(1)" before "In this"; and

(4) by adding at the end the following new paragraph:

"(2) Within the executive branch, an Inspector General to whom any complaint or information is reported under this section shall have sole authority to determine whether the complaint or information is a matter of urgent concern under this section."

Section 8H of Pub. L. 95–452 was amended by Pub. L. 117–263 in subsection (h)(1)(A)(i) by striking "involving" and all that follows through "policy matters." and inserting "of the Federal Government that is—

"(I) a matter of national security; and

"(II) not a difference of opinion concerning public policy matters."

Subsection (h)(1)(A)(i) of former section 8H of Pub. L. 95–452 was restated by Pub. L. 117–286 as subsection (a)(2)(A) of this section.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
416	5 U.S.C. App. (IGA §8H)	Pub. L. 95–452, §8H, as added Pub. L. 105–272, title VII, §702(b)(1), Oct. 20, 1998, 112 Stat. 2415; amended Pub. L. 107–108, title III, §309(b), Dec. 28, 2001, 115 Stat. 1400; Pub. L. 107–306, title VIII, §825, Nov. 27, 2002, 116 Stat. 2429; Pub. L. 110–417, [div. A], title IX, §931(b)(2), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 111–259, title IV, §431(b), Oct. 7, 2010, 124 Stat. 2731; Pub. L. 113–126, title III, §310, title VI, §603(a), July 7, 2014, 128 Stat. 1398, 1420; Pub. L. 116–92, div. E, title LXVII, §6726(c), Dec. 20, 2019, 133 Stat. 2236.

References in Text

The Atomic Energy Act of 1954, referred to in subsec. (i)(1), (2)(C)(ii), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 919. Chapters 12 and 18 of the Act are classified generally to subchapters XI (§2161 et seq.) and XVII (§2271 et seq.), respectively, of division A of chapter 23 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables.

Executive Order 13526, referred to in subsec. (i)(1), (2)(C)(ii), is Ex. Ord. No. 13526, Dec. 29, 2009, 75 F.R. 707, 1013, which is set out as a note under section 3161 of Title 50, War and National Defense.

Amendments

2024—Subsec. (a)(3). Pub. L. 118–159, §6701(c)(1), added par. (3).

Subsec. (a)(4). Pub. L. 118–159, §6702(c)(1), added par. (4).

Subsec. (b)(1). Pub. L. 118–159, §6701(c)(2)(A), (B), inserted "; support for written submission" after "made" in heading and "in writing" after "may report the complaint or information" wherever appearing in text.

Subsec. (b)(1)(B). Pub. L. 118–159, §6701(c)(2)(C), inserted "in writing" after "such complaint or information".

Subsec. (b)(1)(E). Pub. L. 118–159, §6701(c)(2)(D), added subpar. (E).

Subsec. (c). Pub. L. 118–159, §6701(c)(3), added pars. (1) and (2), redesignated former par. (2) as (3), and struck out former par. (1) which required the Inspector General to determine the credibility of the complaint or information.

Subsec. (i). Pub. L. 118–159, §6702(c)(2), added subsec. (i).

§417. Special provisions concerning the Department of Homeland Security

(a) In General.—

(1) Authority of secretary of homeland security over certain audits and investigations.—Notwithstanding the 2d sentence and last sentence of section 403(a) of this title, the Inspector General of the Department of Homeland Security shall be under the authority, direction, and control of the Secretary of Homeland Security with respect to audits or investigations, or the issuance of subpoenas, that require access to sensitive information concerning—

(A) intelligence, counterintelligence, or counterterrorism matters;

(B) ongoing criminal investigations or proceedings;

(C) undercover operations;

(D) the identity of confidential sources, including protected witnesses;

(E) other matters the disclosure of which would, in the Secretary's judgment, constitute a serious threat to the protection of any person or property authorized protection by section 3056 of title 18, section 3056A of title 18, or any provision of the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note); or

(F) other matters the disclosure of which would constitute a serious threat to national security.

(2) Authority of secretary of homeland security to prohibit carrying out or completing audits or investigations.—With respect to the information described in paragraph (1), the Secretary of Homeland Security may prohibit the Inspector General of the Department of Homeland Security from carrying out or completing any audit or investigation, from accessing information described in paragraph (1), or from issuing any subpoena, after such Inspector General has decided to initiate, carry out, or complete such audit or investigation, access such information, or to issue such subpoena, if the Secretary determines that such prohibition is necessary to prevent the disclosure of any information described in paragraph (1), to preserve the national security, or to prevent a significant impairment to the interests of the United States.

(3) Notification of exercise of power.—If the Secretary of Homeland Security exercises any power under paragraph (1) or (2), the Secretary shall notify the Inspector General of the Department of Homeland Security in writing within 7 days, stating the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General shall transmit to the President of the Senate, the Speaker of the House of Representatives, and appropriate committees and subcommittees of Congress the following—

(A) a copy of such notice; and

(B) a written response to such notice that includes a statement regarding whether the Inspector General agrees or disagrees with such exercise, and the reasons for any disagreement.

(b) Not a Limitation on Congressional Access to Information.—The exercise of authority by the Secretary described in subsection (a)(2) should not be construed as limiting the right of Congress or any committee of Congress to access any information it seeks.

(c) Authority of Inspector General To Initiate, Conduct, and Supervise Audits and Investigations.—Subject to the conditions established in subsections (a) and (b), in carrying out the duties and responsibilities specified in this chapter, the Inspector General of the Department of Homeland Security may initiate, conduct, and supervise such audits and investigations in the Department of Homeland Security as the Inspector General considers appropriate.

(d) Reports.—Any report required to be transmitted by the Secretary of Homeland Security to the appropriate committees or subcommittees of Congress under section 405(e) of this title shall be transmitted, within the 7-day period specified in section 405(e) of this title, to the President of the Senate, the Speaker of the House of Representatives, and appropriate committees and subcommittees of Congress.

(e) Oversight Responsibility.—Notwithstanding any other provision of law, in carrying out the duties and responsibilities specified in this chapter, the Inspector General of the Department of Homeland Security shall have oversight responsibility for the internal investigations performed by the Office of Internal Affairs of the United States Customs Service, the Office of Inspections of the United States Secret Service, the Bureau of Border Security, and the Bureau of Citizenship and Immigration Services. The head of each such office or bureau shall promptly report to the Inspector General the significant activities being carried out by such office or bureau.

(f) Designated Senior Official.—

(1) In general.—The Inspector General of the Department of Homeland Security shall designate a senior official within the Office of Inspector General, who shall be a career member of the civil service at the equivalent to the GS–15 level or a career member of the Senior Executive Service, to perform the functions described in paragraph (2).

(2) Functions.—The senior official designated under paragraph (1) shall—

(A) coordinate the activities of the Office of Inspector General with respect to investigations of abuses of civil rights or civil liberties;

(B) receive and review complaints and information from any source alleging abuses of civil rights and civil liberties by employees or officials of the Department and employees or officials of independent contractors or grantees of the Department;

(C) initiate investigations of alleged abuses of civil rights or civil liberties by employees or officials of the Department and employees or officials of independent contractors or grantees of the Department;

(D) ensure that personnel within the Office of Inspector General receive sufficient training to conduct effective civil rights and civil liberties investigations;

(E) consult with the Officer for Civil Rights and Civil Liberties regarding—

(i) alleged abuses of civil rights or civil liberties; and

(ii) any policy recommendations regarding civil rights and civil liberties that may be founded upon an investigation by the Office of Inspector General;

(F) provide the Officer for Civil Rights and Civil Liberties with information regarding the outcome of investigations of alleged abuses of civil rights and civil liberties;

(G) refer civil rights and civil liberties matters that the Inspector General decides not to investigate to the Officer for Civil Rights and Civil Liberties;

(H) ensure that the Office of the Inspector General publicizes and provides convenient public access to information regarding—

(i) the procedure to file complaints or comments concerning civil rights and civil liberties matters; and

(ii) the status of corrective actions taken by the Department in response to Office of the Inspector General reports; and

(I) inform the Officer for Civil Rights and Civil Liberties of any weaknesses, problems, and deficiencies within the Department relating to civil rights or civil liberties.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4244.)

Amendments Not Shown in Text

This section was derived from section 8I of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8I of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §5272(7), Dec. 23, 2022, 136 Stat. 3241, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4244, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8I of Pub. L. 95–452 was amended as follows:

(1) in subsection (a)(3), in the matter preceding subparagraph (A), by striking "committees and subcommittees of Congress" and inserting "congressional committees"; and

(2) in subsection (d), by striking "committees and subcommittees of Congress" each place it appears and inserting "congressional committees".

For definition of "appropriate congressional committees", which would result from application of the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
417	5 U.S.C. App. (IGA §8I)	Pub. L. 95–452, §8I, as added Pub. L. 108–7, div. L, §104(b)(3), Feb. 20, 2003, 117 Stat. 529; amended Pub. L. 108–458, title VIII, §8304, Dec. 17, 2004, 118 Stat. 3868; Pub. L. 109–177, title VI, §605(e)(4), Mar. 9, 2006, 120 Stat. 255; Pub. L. 114–317, §6(5), Dec. 16, 2016, 130 Stat. 1604.

In subsection (b), the reference to "subsection (a)(2)" is substituted for "paragraph (2)" for clarity and to correct an error in the law.

Editorial Notes

References in Text

The Presidential Protection Assistance Act of 1976, referred to in subsec. (a)(1)(E), is Pub. L. 94–524, Oct. 17, 1976, 90 Stat. 2475, which enacted and amended provisions set out as notes under section 3056 of Title 18, Crimes and Criminal Procedure. For complete classification of this Act to the Code, see Tables.

GS–15, referred to in subsec. (f)(1), is contained in the General Schedule, which is set out under section 5332 of this title.

Statutory Notes and Related Subsidiaries

Review of Departmental Contracts Awarded Through Means Other Than Full and Open Competition

Pub. L. 113–6, div. D, title V, §520(d), Mar. 26, 2013, 127 Stat. 370, provided that: "In addition to the requirements established by subsections (a), (b), and (c) of this section [127 Stat. 369, 370], the Inspector General of the Department of Homeland Security shall review departmental contracts awarded through means other than a full and open competition to assess departmental compliance with applicable laws and regulations: Provided, That the Inspector General shall review selected contracts awarded in the previous 3 fiscal years through means other than a full and open competition: Provided further, That in selecting which contracts to review, the Inspector General shall consider the cost and complexity of the goods and services to be provided under the contract, the criticality of the contract to fulfilling Department missions, past performance problems on similar contracts or by the selected vendor, complaints received about the award process or contractor performance, and such other factors as the Inspector General deems relevant: Provided further, That the Inspector General shall report the results of the reviews to the Committees on Appropriations of the Senate and the House of Representatives no later than February 4, 2015, and every 3 years thereafter."

Report on Data Collection

Pub. L. 110–329, div. D, title V, §518(b), Sept. 30, 2008, 122 Stat. 3684, provided that: "The Inspector General shall provide to the Committees on Appropriations of the Senate and the House of Representatives, starting six months after the date of enactment of this Act [Sept. 30, 2008], and quarterly thereafter, a classified report containing a review of the data collected by the National Applications Office, including a description of the collection purposes and the legal authority under which the collection activities were authorized: Provided, That the report shall also include a listing of all data collection activities carried out on behalf of the National Applications Office by any component of the National Guard."

§418. Rule of construction of special provisions

The special provisions under section 408, 409, 410, 411, 412, 413, 414, 416, or 421 of this title relate only to the establishment named in such section and no inference shall be drawn from the presence or absence of a provision in any such section with respect to an establishment not named in such section or with respect to a designated Federal entity as defined under section 415(a) of this title.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4247.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
418	5 U.S.C. App. (IGA §8J)	Pub. L. 95–452, §8J, formerly §8F, as added Pub. L. 100–504, title I, §105, Oct. 18, 1988, 102 Stat. 2525; renumbered §8G and amended Pub. L. 103–82, title II, §202(g)(1), (5)(B), Sept. 21, 1993, 107 Stat. 889, 890; renumbered §8H, Pub. L. 104–208, div. A, title I, §101(f) [title VI, §662(b)(3)], Sept. 30, 1996, 110 Stat. 3009–314, 3009-380; Pub. L. 105–206, title I, §1103(e)(3), July 22, 1998, 112 Stat. 709; renumbered §8I and amended Pub. L. 105–272, title VII, §702(b), Oct. 20, 1998, 112 Stat. 2415; renumbered §8J, Pub. L. 108–7, div. L, §104(b)(2), Feb. 20, 2003, 117 Stat. 529; Pub. L. 114–317, §6(6), Dec. 16, 2016, 130 Stat. 1604.

§419. Special provisions concerning overseas contingency operations

(a) Additional Responsibilities of Chair of Council of Inspectors General on Integrity and Efficiency.—The Chair of the Council of Inspectors General on Integrity and Efficiency (CIGIE) shall, in consultation with the members of the Council, have the additional responsibilities specified in subsection (b) with respect to the Inspectors General specified in subsection (c) upon the earlier of—

(1) the commencement or designation of a military operation as an overseas contingency operation that exceeds 60 days; or

(2) receipt of a notification under section 113(n) ¹ of title 10 with respect to an overseas contingency operation.

(b) Specific Responsibilities.—The responsibilities specified in this subsection are the following:

(1) Designate lead inspector general.—In consultation with the Inspectors General specified in subsection (c), to designate a lead Inspector General in accordance with subsection (d) to discharge the authorities of the lead Inspector General for the overseas contingency operation concerned as set forth in subsection (d).

(2) Resolve conflicts of jurisdiction.—To resolve conflicts of jurisdiction among the Inspectors General specified in subsection (c) on investigations, inspections, and audits with respect to such contingency operation in accordance with subsection (d)(2)(B).

(3) Identify office personnel.—To assist in identifying for the lead inspector general for such contingency operation, Inspectors General and inspector general office personnel available to assist the lead Inspector General and the other Inspectors General specified in subsection (c) on matters relating to such contingency operation.

(c) Inspectors General.—The Inspectors General specified in this subsection are the Inspectors General as follows:

(1) The Inspector General of the Department of Defense.

(2) The Inspector General of the Department of State.

(3) The Inspector General of the United States Agency for International Development.

(d) Lead Inspector General for Overseas Contingency Operation.—

(1) Designation.—A lead Inspector General for an overseas contingency operation shall be designated by the Chair of the Council of Inspectors General on Integrity and Efficiency under subsection (b)(1) not later than 30 days after the earlier of—

(A) the commencement or designation of the military operation concerned as an overeas ² contingency operation that exceeds 60 days; or

(B) receipt of a notification under section 113(n) ¹ of title 10 with respect to an overseas contingency operation.

The lead Inspector General for a contingency operation shall be designated from among the Inspectors General specified in subsection (c).

(2) Responsibilities.—The lead Inspector General for an overseas contingency operation shall have the following responsibilities:

(A) Appoint associate inspector general.—To appoint, from among the offices of the other Inspectors General specified in subsection (c), an Inspector General to act as associate Inspector General for the contingency operation who shall act in a coordinating role to assist the lead Inspector General in the discharge of responsibilities under this subsection.

(B) Strategic plan to conduct comprehensive oversight.—To develop and carry out, in coordination with the offices of the other Inspectors General specified in subsection (c), a joint strategic plan to conduct comprehensive oversight over all aspects of the contingency operation and to ensure through either joint or individual audits, inspections, and investigations, independent and effective oversight of all programs and operations of the Federal Government in support of the contingency operation.

(C) Accuracy of information.—To review and ascertain the accuracy of information provided by Federal agencies relating to obligations and expenditures, costs of programs and projects, accountability of funds, and the award and execution of major contracts, grants, and agreements in support of the contingency operation.

(D) Jurisdictional matters.—

(i) No inspector general with principal jurisdiction.—If none of the Inspectors General specified in subsection (c) has principal jurisdiction over a matter with respect to the contingency operation, to identify and coordinate with the Inspector General who has principal jurisdiction over the matter to ensure effective oversight.

(ii) More than one inspector general with jurisdiction.—If more than one of the Inspectors General specified in subsection (c) has jurisdiction over a matter with respect to the contingency operation, to determine principal jurisdiction for discharging oversight responsibilities in accordance with this chapter with respect to such matter.

(iii) Investigations.—

(I) Request by inspector general with principal jurisdiction.—Upon written request by the Inspector General with principal jurisdiction over a matter with respect to the contingency operation, and with the approval of the lead Inspector General, an Inspector General specified in subsection (c) may provide investigative support or conduct an independent investigation of an allegation of criminal activity by any United States personnel, contractor, subcontractor, grantee, or vendor in the applicable theater of operations.

(II) No inspector general with principal jurisdiction.—In the case of a determination by the lead Inspector General that no Inspector General has principal jurisdiction over a matter with respect to the contingency operation, the lead Inspector General may—

(aa) conduct an independent investigation of an allegation described in subclause (I); or

(bb) request that an Inspector General specified in subsection (c) conduct such investigation.

(E) Personnel.—To employ, or authorize the employment by the other Inspectors General specified in subsection (c), on a temporary basis using the authorities in section 3161 of this title (without regard to subsection (b)(2) of that section), such auditors, investigators, and other personnel as the lead Inspector General considers appropriate to assist the lead Inspector General and such other Inspectors General on matters relating to the contingency operation.

(F) Report on activity.—To submit to Congress on a bi-annual basis, and to make available on an internet website available to the public, a report on the activities of the lead Inspector General and the other Inspectors General specified in subsection (c) with respect to the contingency operation, including—

(i) the status and results of investigations, inspections, and audits and of referrals to the Department of Justice; and

(ii) overall plans for the review of the contingency operation by inspectors general, including plans for investigations, inspections, and audits.

(G) Report on contingency operation.—To submit to Congress on a quarterly basis, and to make available on an Internet website available to the public, a report on the contingency operation.

(H) Other responsibilities.—To carry out such other responsibilities relating to the coordination and efficient and effective discharge by the Inspectors General specified in subsection (c) of duties relating to the contingency operation as the lead Inspector General shall specify.

(I) Enhancing cooperation.—To enhance cooperation among Inspectors General and encourage comprehensive oversight of the contingency operation, any Inspector General responsible for conducting oversight of any program or operation performed in support of the contingency operation may, to the maximum extent practicable and consistent with the duties, responsibilities, policies, and procedures of that Inspector General—

(i) coordinate such oversight activities with the lead Inspector General; and

(ii) provide information requested by the lead Inspector General relating to the responsibilities of the lead Inspector General described in subparagraphs (B), (C), and (G).

(3) Employment of annuitants.—

(A) In general.—The lead Inspector General for an overseas contingency operation may employ, or authorize the employment by the other Inspectors General specified in subsection (c) of, annuitants covered by section 9902(g) of this title, for purposes of assisting the lead Inspector General in discharging responsibilities under this subsection with respect to the contingency operation.

(B) Deemed department of defense.—The employment of annuitants under this paragraph shall be subject to the provisions of section 9902(g) of this title as if the lead Inspector General concerned was the Department of Defense.

(C) Foreign service annuitants.—

(i) Continuance of annuity.—An annuitant receiving an annuity under the Foreign Service Retirement and Disability System or the Foreign Service Pension System under chapter 8 of title I of the Foreign Service Act of 1980 (22 U.S.C. 4041 et seq.) who is reemployed under this subsection—

(I) shall continue to receive the annuity; and

(II) shall not be considered a participant for purposes of chapter 8 of title I of the Foreign Service Act of 1980 (22 U.S.C. 4041 et seq.) or an employee for purposes of subchapter III of chapter 83 or chapter 84 of this title.

(ii) Election regarding reemployment.—An annuitant described in clause (i) may elect in writing for the reemployment of the annuitant under this subsection to be subject to section 824 of the Foreign Service Act of 1980 (22 U.S.C. 4064). A reemployed annuitant shall make an election under this clause not later than 90 days after the date of the reemployment of the annuitant.

(4) Discharge of responsibilities in accordance with chapter.—The lead Inspector General for an overseas contingency operation shall discharge the responsibilities for the contingency operation under this subsection in a manner consistent with the authorities and requirements of this chapter generally and the authorities and requirements applicable to the Inspectors General specified in subsection (c) under this chapter.

(5) Ccompetitive ³ status for appointment.—

(A) In general.—A person employed by a lead Inspector General for an overseas contingency operation under this section shall acquire competitive status for appointment to any position in the competitive service for which the employee possesses the required qualifications upon the completion of 2 years of continuous service as an employee under this section.

(B) Limitation.—No person who is first employed as described in subparagraph (A) more than 10 years after December 19, 2019,¹ may acquire competitive status under subparagraph (A).

(e) Sunset for Particular Contingency Operations.—The requirements and authorities of this section with respect to an overseas contingency operation shall cease at the end of the first fiscal year after the commencement or designation of the contingency operation in which the total amount appropriated for the contingency operation is less than $100,000,000.

(f) Construction of Authority.—Nothing in this section shall be construed to limit the ability of the Inspectors General specified in subsection (c) to enter into agreements to conduct joint audits, inspections, or investigations in the exercise of their oversight responsibilities in accordance with this chapter with respect to overseas contingency operations.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4247; Pub. L. 118–31, div. A, title XI, §1106, Dec. 22, 2023, 137 Stat. 427; Pub. L. 118–159, div. E, title LVII, §5704, Dec. 23, 2024, 138 Stat. 2466.)

Amendments Not Shown in Text

This section was derived from section 8L of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8L of Pub. L. 95–452 was amended by Pub. L. 117–81, div. E, title LIII, §5321, Dec. 27, 2021, 135 Stat. 2368, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4247, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8L of Pub. L. 95–452 was amended in subsection (d)(5)(A) by substituting "any of the Inspectors General specified in subsection (c) for oversight of" for "a lead Inspector General for".

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
419	5 U.S.C. App. (IGA Sec. 8L)	Pub. L. 95–452, §8L, as added Pub. L. 112–239, div. A, title VIII, §848(2), Jan. 2, 2013, 126 Stat. 1851; Pub. L. 116–92, div. A, title XVII, §§1732(b) through 1734, Dec. 20, 2019, 133 Stat. 1817, 1818.

In subsection (d)(5)(B), the date "December 19, 2019" is substituted for "the date of the enactment of the National Defense Authorization Act for Fiscal Year 2020" for clarity.

Editorial Notes

References in Text

Section 113(n) of title 10, referred to in subsecs. (a)(2) and (d)(1)(B), was redesignated section 113(o) of title 10 by Pub. L. 116–283, div. A, title V, §551(a)(1)(C), Jan. 1, 2021, 134 Stat. 3628.

The Foreign Service Act of 1980, referred to in subsec. (d)(3)(C)(i), is Pub. L. 96–465, Oct. 17, 1980, 94 Stat. 2071. Chapter 8 of title I of the Act is classified generally to part I (§4041 et seq.) of subchapter VIII of chapter 52 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 3901 of Title 22 and Tables.

December 19, 2019, referred to in subsec. (d)(5)(B), probably should be "December 20, 2019". Prior to repeal and restatement as this section, the source section referred instead to "the date of the enactment of the National Defense Authorization Act for Fiscal Year 2020", which Act was approved Dec. 20, 2019. See Historical and Revision note above.

Amendments

2024—Subsec. (d)(5)(B). Pub. L. 118–31 substituted "10 years" for "5 years".

2023—Subsec. (d)(5)(B). Pub. L. 118–31 substituted "5 years" for "2 years".

Statutory Notes and Related Subsidiaries

Oversight of Programs and Operations Funded With Amounts Appropriated by the United States for Ukraine

Pub. L. 118–31, div. A, title XII, §1250B(a)–(h), Dec. 22, 2023, 137 Stat. 465–467, provided that:

"(a) Special Inspector General for Operation Atlantic Resolve.—

"(1) In general.—Subject to the requirements of this section, the President, acting through the Chair of the Council of the Inspectors General on Integrity and Efficiency, shall maintain the position of the Lead Inspector General for Operation Atlantic Resolve in accordance with section 419 of title 5, United States Code.

"(2) Redesignation.—

"(A) In general.—The title of the position of the Lead Inspector General for Operation Atlantic Resolve is hereby redesignated as the 'Special Inspector General for Operation Atlantic Resolve' (in this section referred to as the 'Special Inspector General').

"(B) References.—Any reference in law, regulation, document, paper, or other record of the United States to the Lead Inspector General for Operation Atlantic Resolve shall be deemed to be a reference to the Special Inspector General for Operation Atlantic Resolve.

"(b) Briefings.—Upon request by the Chair or Ranking Member of an appropriate committee of Congress, not later than 30 days after receiving the request, the Special Inspector General shall to the extent practicable provide a briefing to such committee on the activities of the Special Inspector General with respect to programs and operations funded with amounts appropriated by the United States for Ukraine.

"(c) Publication of Accounting of United States Assistance for Ukraine.—Not later than 45 days after the date of the enactment of this Act [Dec. 22, 2023], and every 90 days thereafter, the President shall publish on a publicly available website of the United States Government a comprehensive accounting of unclassified amounts appropriated by the United States for Ukraine.

"(d) Quarterly Reports.—

"(1) In general.—Not later than 45 days after the end of each fiscal-year quarter, the Special Inspector General shall submit to the appropriate committees of Congress a report summarizing, with respect to that quarter and, to the extent possible, the period beginning on the date on which such quarter ends and ending on the date on which the report is submitted, the activities of the Special Inspector General with respect to programs and operations funded with amounts appropriated by the United States for Ukraine for—

"(A) security, economic, and humanitarian assistance to Ukraine and other countries affected by the war;

"(B) United States European Command operations and related support for the United States military; and

"(C) operations of other relevant United States Government agencies involved in the Ukraine response, as appropriate.

"(2) Elements.—Each report required by paragraph (1) shall include, for the period covered by the report—

"(A) a description of any waste, fraud, or abuse identified by the Inspectors General with respect to programs and operations funded with amounts appropriated by the United States for Ukraine;

"(B) a description of the status and results of—

"(i) investigations, inspections, and audits; and

"(ii) referrals to the Department of Justice; and

"(C) a description of the overall plans for review by the Inspectors General of such support of Ukraine, including plans for investigations, inspections, and audits.

"(3) Availability.—The Special Inspector General shall publish on a publicly available website the unclassified form of each report required by paragraph (1).

"(4) Form.—Each report required by paragraph (1) shall be submitted in unclassified form, but may include a classified annex if the Special Inspector General considers it necessary.

"(e) Rule of Construction.—Nothing in this section may be construed to limit the Special Inspector General from exercising all authorities and discharging all responsibilities granted to the Lead Inspector General for Operation Atlantic Resolve in accordance with section 419 of title 5, United States Code, in the exercise of oversight responsibilities for Operation Atlantic Resolve generally and under this section with respect to Ukraine.

"(f) Sunset.—The requirements and authorities of this section with respect to the Special Inspector General shall cease in accordance with the sunset provisions for the Lead Inspector General for Operation Atlantic Resolve pursuant to section 419(f) [probably should be "419(e)"] of title 5, United States Code.

"(g) Definitions.—In this section:

"(1) The term 'appropriate committees of Congress' means—

"(A) the Committee on Appropriations, the Committee on Armed Services, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate; and

"(B) the Committee on Appropriations, the Committee on Armed Services, the Committee on Foreign Affairs, and the Committee on Oversight and Accountability of the House of Representatives.

"(2) The term 'Inspectors General' means the following:

"(A) The Inspector General of the Department of Defense.

"(B) The Inspector General of the Department of State.

"(C) The Inspector General of the United States Agency for International Development.

"(h) Authorization of Appropriations.—There is authorized to be appropriated for fiscal year 2024 $8,000,000 to carry out this section."

¹ See References in Text note below.

² So in original. Probably should be "overseas".

³ So in original.

§420. Information on websites of Offices of Inspectors General

(a) Direct Links to Inspectors General Offices.—

(1) In general.—Each Federal agency and designated Federal entity shall establish and maintain on the homepage of the website of that Federal agency or designated Federal entity, a direct link to the website of the Office of the Inspector General of that Federal agency or designated Federal entity.

(2) Accessibility.—The direct link under paragraph (1) shall be obvious and facilitate accessibility to the website of the Office of the Inspector General.

(b) Requirements for Inspectors General Websites.—

(1) Posting of reports and audits.—The Inspector General of each Federal agency and designated Federal entity shall—

(A) not later than 3 days after any audit report, inspection report, or evaluation report (or portion of any such report) is submitted in final form to the head of the Federal agency or the head of the designated Federal entity, as applicable, post that report (or portion of that report) on the website of the Office of Inspector General; and

(B) ensure that any posted report (or portion of that report) described under subparagraph (A)—

(i) is easily accessible from a direct link on the homepage of the website of the Office of the Inspector General;

(ii) includes a summary of the findings of the Inspector General; and

(iii) is in a format that—

(I) is searchable and downloadable; and

(II) facilitates printing by individuals of the public accessing the website.

(2) Reporting of fraud, waste, and abuse.—

(A) In general.—The Inspector General of each Federal agency and designated Federal entity shall establish and maintain a direct link on the homepage of the website of the Office of the Inspector General for individuals to report fraud, waste, and abuse. Individuals reporting fraud, waste, or abuse using the direct link established under this paragraph shall not be required to provide personally identifying information relating to that individual.

(B) Anonymity.—The Inspector General of each Federal agency and designated Federal entity shall not disclose the identity of any individual making a report under this paragraph without the consent of the individual unless the Inspector General determines that such a disclosure is unavoidable during the course of the investigation.

(3) Rule of construction.—Nothing in this subsection shall be construed as authorizing an Inspector General to publicly disclose information otherwise prohibited from disclosure by law.

(c) Definitions.—In this section, the terms "designated Federal entity" and "head of the designated Federal entity" have the meanings given those terms in section 415(a) of this title.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4251.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
420	5 U.S.C. App. (IGA §8M)	Pub. L. 95–452, §8M, formerly §8L, as added Pub. L. 110–409, §13(a), Oct. 14, 2008, 122 Stat. 4315; renumbered §8M, Pub. L. 112–239, div. A, title VIII, §848(1), Jan. 2, 2013, 126 Stat. 1851; amended Pub. L. 114–317, §§4(e), 7(b)(1)(A), (c), Dec. 16, 2016, 130 Stat. 1602, 1605, 1606.

§421. Additional provisions with respect to the Department of Energy

(a) Authority To Prohibit Access to Certain Materials.—The Secretary of Energy may prohibit the Inspector General of the Department of Energy from accessing Restricted Data and nuclear safeguards information protected from disclosure under chapter 12 of the Atomic Energy Act of 1954 (42 U.S.C. 2161 et seq.) and intelligence or counterintelligence, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003), if the Secretary of Energy determines that the prohibition is necessary to protect the national security or prevent the significant impairment to the national security interests of the United States.

(b) Notification to Inspector General and Statement to Congress.—Not later than 7 days after the date on which the Secretary of Energy exercises any power authorized under subsection (a), the Secretary shall notify the Inspector General of the Department of Energy in writing of the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General of the Department of Energy shall submit to the appropriate committees of Congress a statement concerning such exercise.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4252.)

Amendments Not Shown in Text

This section was derived from section 8N of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 8N of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §5272(8), Dec. 23, 2022, 136 Stat. 3241, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4252, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 8N of Pub. L. 95–452 was amended in subsection (b) by striking "committees of Congress" and inserting "congressional committees". For definition of "appropriate congressional committees", which would result from application of the amendment by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
421	5 U.S.C. App. (IGA §8N)	Pub. L. 95–452, §8N, as added Pub. L. 114–317, §6(7), Dec. 16, 2016, 130 Stat. 1604.

Editorial Notes

References in Text

The Atomic Energy Act of 1954, referred to in subsec. (a), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 919. Chapter 12 of the Act is classified generally to subchapter XI (§2161 et seq.) of chapter 23 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables.

§422. Transfer of functions

(a) In General.—There shall be transferred—

(1) to the Office of Inspector General—

(A) of the Department of Agriculture, the offices of that department referred to as the "Office of Investigation" and the "Office of Audit";

(B) of the Department of Commerce, the offices of that department referred to as the "Office of Audits" and the "Investigations and Inspections Staff" and that portion of the office referred to as the "Office of Investigations and Security" which has responsibility for investigation of alleged criminal violations and program abuse;

(C) of the Department of Defense, the offices of that department referred to as the "Defense Audit Service" and the "Office of Inspector General, Defense Logistics Agency", and that portion of the office of that department referred to as the "Defense Investigative Service" which has responsibility for the investigation of alleged criminal violations;

(D) of the Department of Education, all functions of the Inspector General of Health, Education, and Welfare or of the Office of Inspector General of Health, Education, and Welfare relating to functions transferred by section 301 of the Department of Education Organization Act (20 U.S.C. 3441);

(E) of the Department of Energy, the Office of Inspector General (as established by section 208 of the Department of Energy Organization Act);

(F) of the Department of Health and Human Services, the Office of Inspector General (as established by title II of Public Law 94–505);

(G) of the Department of Housing and Urban Development, the office of that department referred to as the "Office of Inspector General";

(H) of the Department of the Interior, the office of that department referred to as the "Office of Audit and Investigation";

(I) of the Department of Justice—

(i) the offices of that Department referred to as—

(I) the "Audit Staff, Justice Management Division";

(II) the "Policy and Procedures Branch, Office of the Comptroller, Immigration and Naturalization Service", the "Office of Professional Responsibility, Immigration and Naturalization Service", and the "Office of Program Inspections, Immigration and Naturalization Service";

(III) the "Office of Internal Inspection, United States Marshals Service"; and

(IV) the "Financial Audit Section, Office of Financial Management, Bureau of Prisons" and the "Office of Inspections, Bureau of Prisons"; and

(ii) from the Drug Enforcement Administration, that portion of the "Office of Inspections" which is engaged in internal audit activities, and that portion of the "Office of Planning and Evaluation" which is engaged in program review activities;

(J) of the Department of Labor, the office of that department referred to as the "Office of Special Investigations";

(K) of the Department of Transportation, the offices of that department referred to as the "Office of Investigations and Security" and the "Office of Audit" of the Department, the "Offices of Investigations and Security, Federal Aviation Administration", and "External Audit Divisions, Federal Aviation Administration", the "Investigations Division and the External Audit Division of the Office of Program Review and Investigation, Federal Highway Administration", and the "Office of Program Audits, Federal Transit Administration";

(L)(i) of the Department of the Treasury, the office of that department referred to as the "Office of Inspector General", and, notwithstanding any other provision of law, that portion of each of the offices of that department referred to as the "Office of Internal Affairs, Tax and Trade Bureau", the "Office of Internal Affairs, United States Customs Service", and the "Office of Inspections, United States Secret Service" which is engaged in internal audit activities; and

(ii) of the Treasury Inspector General for Tax Administration, effective 180 days after July 22, 1998, the Office of Chief Inspector of the Internal Revenue Service;

(M) of the Environmental Protection Agency, the offices of that agency referred to as the "Office of Audit" and the "Security and Inspection Division";

(N) of the Federal Emergency Management Agency, the office of that agency referred to as the "Office of Inspector General";

(O) of the General Services Administration, the offices of that agency referred to as the "Office of Audits" and the "Office of Investigations";

(P) of the National Aeronautics and Space Administration, the offices of that agency referred to as the "Management Audit Office" and the "Office of Inspections and Security";

(Q) of the Nuclear Regulatory Commission, the office of that commission referred to as the "Office of Inspector and Auditor";

(R) of the Office of Personnel Management, the offices of that agency referred to as the "Office of Inspector General", the "Insurance Audits Division, Retirement and Insurance Group", and the "Analysis and Evaluation Division, Administration Group";

(S) of the Railroad Retirement Board, the Office of Inspector General (as established by section 23 of the Railroad Retirement Act of 1974);

(T) of the Small Business Administration, the office of that agency referred to as the "Office of Audits and Investigations";

(U) of the Department of Veterans Affairs, the offices of that department referred to as the "Office of Audits" and the "Office of Investigations";

(V) of the Corporation for National and Community Service, the Office of Inspector General of ACTION; and

(W) of the Social Security Administration, the functions of the Inspector General of the Department of Health and Human Services which are transferred to the Social Security Administration by the Social Security Independence and Program Improvements Act of 1994 (other than functions performed pursuant to section 105(a)(2) of such Act), except that such transfers shall be made in accordance with the provisions of such Act and shall not be subject to subsections (b) through (d) of this section; and

(2) to the Office of the Inspector General, such other offices or agencies, or functions, powers, or duties thereof, as the head of the establishment involved may determine are properly related to the functions of the Office and would, if so transferred, further the purposes of this chapter,

except that there shall not be transferred to an Inspector General under paragraph (2) program operating responsibilities.

(b) Related Transfers.—The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available or to be made available, of any office or agency the functions, powers, and duties of which are transferred under subsection (a) are hereby transferred to the applicable Office of Inspector General.

(c) Personnel.—Personnel transferred pursuant to subsection (b) shall be transferred in accordance with applicable laws and regulations relating to the transfer of functions except that the classification and compensation of such personnel shall not be reduced for one year after such transfer.

(d) Lapse of Office or Agency and Compensation for Transferred Positions With Comparable Duties.—In any case in which all the functions, powers, and duties of any office or agency are transferred pursuant to this subsection, such office or agency shall lapse. Any person who, on October 1, 1978, held a position compensated in accordance with the General Schedule, and who, without a break in service, is appointed in an Office of Inspector General to a position having duties comparable to those performed immediately preceding such appointment shall continue to be compensated in the new position at not less than the rate provided for the previous position, for the duration of service in the new position.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4252.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
422	5 U.S.C. App. (IGA §9)	Pub. L. 95–452, §9, Oct. 12, 1978, 92 Stat. 1107; Pub. L. 96–88, title V, §508(n)(2), Oct. 17, 1979, 93 Stat. 694; Pub. L. 97–252, title XI, §1117(a)(2), (3), Sept. 8, 1982, 96 Stat. 750; Pub. L. 100–504, title I, §102(d), Oct. 18, 1988, 102 Stat. 2516; Pub. L. 103–82, title II, §202(g)(3)(A), Sept. 21, 1993, 107 Stat. 890; Pub. L. 103–296, title I, §108(l)(1), Aug. 15, 1994, 108 Stat. 1488; Pub. L. 105–206, title I, §1103(c)(1), July 22, 1998, 112 Stat. 708; Pub. L. 107–189, §22(c), June 14, 2002, 116 Stat. 708; Pub. L. 107–296, title XI, §1112(a)(2), Nov. 25, 2002, 116 Stat. 2276.

In subsection (a)(1)(K), the words "Federal Transit Administration" are substituted for "Urban Mass Transportation Administration" because of section 3004(b) of the Federal Transit Act Amendments of 1991 (Public Law 102–240, title III, 49 U.S.C. 107 note).

In subsection (a)(1)(L)(ii), the date "July 22, 1998" is substituted for "the date of the enactment of the Internal Revenue Service Restructuring and Reform Act of 1998" for clarity.

In subsection (a)(1)(U), the words "Department of Veterans Affairs" are substituted for "Veterans' Administration", and the words "that department" are substituted for "that agency", to update obsolete references in the law.

In subsection (d), the date "October 1, 1978" is substituted for "the effective date of this Act" for clarity and to reflect the effective date of the Inspector General Act of 1978.

Editorial Notes

References in Text

Section 208 of the Department of Energy Organization Act, referred to in subsec. (a)(1)(E), is section 208 of Pub. L. 95–91, title II, Aug. 4, 1977, 91 Stat. 575, which was classified to section 7138 of Title 42, The Public Health and Welfare, and was repealed by Pub. L. 100–504, title I, §102(e)(1)(A), Oct. 18, 1988, 102 Stat. 2517.

Title II of Public Law 94–505, referred to in subsec. (a)(1)(F), is title II of Pub. L. 94–505, Oct. 15, 1976, 90 Stat. 2429, which was classified generally to sections 3521 to 3527 of Title 42, The Public Health and Welfare, and was repealed by Pub. L. 100–504, title I, §102(e)(2), Oct. 18, 1988, 102 Stat. 2517.

Section 23 of the Railroad Retirement Act of 1974, referred to in subsec. (a)(1)(S), is section 23 of act Aug. 29, 1935, ch. 812, as added, which was classified to section 231v of Title 45, Railroads, and was repealed by Pub. L. 100–504, title I, §102(e)(3), Oct. 18, 1988, 102 Stat. 2517.

The Social Security Independence and Program Improvements Act of 1994, referred to in subsec. (a)(1)(W), is Pub. L. 103–296, Aug. 15, 1995, 108 Stat. 1464. Section 105(a)(2) of the Act is set out as a note under section 901 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title of 1994 Amendment note set out under section 1305 of Title 42 and Tables.

Statutory Notes and Related Subsidiaries

Abolition of Immigration and Naturalization Service and Transfer of Functions

For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Security, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended generally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6.

For transfer of the functions, personnel, assets, and obligations of the United States Secret Service, including the functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 381, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Additional Provisions Related to Treasury Inspector General for Tax Administration

Pub. L. 105–206, title I, §1103(c)(2)–(4), July 22, 1998, 112 Stat. 708, provided that:

"(2) Termination of Office of Chief Inspector.—Effective upon the transfer of functions under the amendment made by paragraph (1) [enacting subsec. (a)(1)(L)(ii) of former section 9 of Pub. L. 95–452, see subsec. (a)(1)(L)(ii) of this section], the Office of Chief Inspector of the Internal Revenue Service is terminated.

"(3) Retention of Certain Internal Audit Personnel.—In making the transfer under the amendment made by paragraph (1), the Commissioner of Internal Revenue shall designate and retain an appropriate number (not in excess of 300) of internal audit full-time equivalent employee positions necessary for management relating to the Internal Revenue Service.

"(4) Additional Personnel Transfers.—Effective 180 days after the date of the enactment of this Act [July 22, 1998], the Secretary of the Treasury shall transfer 21 full-time equivalent positions from the Office of the Inspector General of the Department of the Treasury to the Office of the Treasury Inspector General for Tax Administration."

Continuation of Service of Certain Inspectors General

Pub. L. 100–504, title I, §102(e)(4), Oct. 18, 1988, 102 Stat. 2517, as amended by Pub. L. 117–286, §4(b)(19), Dec. 27, 2022, 136 Stat. 4345, provided that: "Any individual who, on the date of enactment of this Act [Oct. 18, 1988], is serving as the Inspector General of the Department of Energy, the Department of Health and Human Services, or the Railroad Retirement Board, shall continue to serve in such position until such individual dies, resigns, or is removed from office in accordance with section 403(b) of title 5, United States Code."

Transfer of Audit Personnel to Inspector General, Department of Defense

Pub. L. 97–252, title XI, §1117(e), Sept. 8, 1982, 96 Stat. 753, provided that: "In addition to the positions transferred to the Office of the Inspector General of the Department of Defense, pursuant to the amendments made by subsection (a) of this section [see Tables for classification], the Secretary of Defense shall transfer to the Office of Inspector General of the Department of Defense not less than one hundred additional audit positions. The Inspector General of the Department of Defense shall fill such positions with persons trained to perform contract audits."

§423. Pay of Inspectors General

(a) Certain Inspectors General.—

(1) In general.—Notwithstanding any other provision of law, the annual rate of basic pay of the Inspector General of the Intelligence Community, the Inspector General of the Central Intelligence Agency, and the Special Inspector General for Afghanistan Reconstruction shall be that of an Inspector General as defined under section 401 of this title.

(2) Prohibition of cash bonus or awards.—Section 403(f) of this title shall apply to the Inspectors General described under paragraph (1).

(b) Inspectors General of Designated Federal Entities.—Notwithstanding any other provision of law, the Inspector General of each designated Federal entity (as those terms are defined under section 415(a) of this title) shall, for pay and all other purposes, be classified at a grade, level, or rank designation, as the case may be, at or above those of a majority of the senior level executives of that designated Federal entity (such as a General Counsel, Chief Information Officer, Chief Financial Officer, Chief Human Capital Officer, or Chief Acquisition Officer). The pay of an Inspector General of a designated Federal entity (as those terms are defined under section 415(a) of this title) shall be not less than the average total compensation (including bonuses) of the senior level executives of that designated Federal entity calculated on an annual basis.

(c) Savings Provision for Newly Appointed Inspectors General.—

(1) In general.—The provisions of section 3392 of this title, other than the terms "performance awards" and "awarding of ranks" in subsection (c)(1) of that section, shall apply to career appointees of the Senior Executive Service who are appointed to the position of Inspector General.

(2) Nonreduction in pay.—Notwithstanding any other provision of law, career Federal employees serving on an appointment made pursuant to statutory authority found other than in section 3392 of this title shall not suffer a reduction in pay, not including any bonus or performance award, as a result of being appointed to the position of Inspector General.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4255.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
423(a)	5 U.S.C. App. (IGA §3) note	Pub. L. 110–409, §4(a)(3), Oct. 14, 2008, 122 Stat. 4303; Pub. L. 111–259, title IV, §405(b), Oct. 7, 2010, 124 Stat. 2719.
423(b)	5 U.S.C. App. (IGA §3) note	Pub. L. 110–409, §4(b)(1), Oct. 14, 2008, 122 Stat. 4303.
423(c)	5 U.S.C. App. (IGA §3) note	Pub. L. 110–409, §4(c), Oct. 14, 2008, 122 Stat. 4303.

In subsection (a)(1), the words "the Special Inspector General for Iraq Reconstruction" are omitted as obsolete. The Special Inspector General for Iraq Reconstruction was established as a temporary oversight entity and ceased operations on September 30, 2013. In the document "Final Listing of Audit and Other Reports Issued by SIGIR on Reconstruction Spending in Iraq" (78 FR 58596), see the statement by the Special Inspector General for Iraq Reconstruction in the paragraph headed "Location of SIGIR Records After Closure".

Statutory Notes and Related Subsidiaries

Pay of Inspectors General

Pub. L. 110–409, §4(b)–(d), Oct. 14, 2008, 122 Stat. 4304, as amended by Pub. L. 117–286, §§4(b)(6), 7, Dec. 27, 2022, 136 Stat. 4343, 4361, provided that:

"[(b), (c). Repealed. Pub. L. 117–286, §7, Dec. 27, 2022, 136 Stat. 4361.]

"(d) Savings Provision.—Nothing in this section [amending former section 3 of Pub. L. 95–452 (see 5 U.S.C. 403), section 5315 of this title, and section 12651e of Title 42, The Public Health and Welfare, and enacting provisions formerly set out as a note under section 3 of Pub. L. 95–452 (see 5 U.S.C. 423(a))] shall have the effect of reducing the rate of pay of any individual serving on the date of enactment of this section [Oct. 14, 2008] as an Inspector General of—

"(1) an establishment as defined under section 401 of title 5, United States Code;

"(2) a designated Federal entity as defined under section 415(a) of title 5, United States Code;

"(3) a legislative agency for which the position of Inspector General is established by statute; or

"(4) any other entity of the Government for which the position of Inspector General is established by statute."

§424. Establishment of the Council of the Inspectors General on Integrity and Efficiency

(a) Establishment and Mission.—

(1) Establishment.—There is established as an independent entity within the executive branch the Council of the Inspectors General on Integrity and Efficiency (in this section referred to as the "Council").

(2) Mission.—The mission of the Council shall be to—

(A) address integrity, economy, and effectiveness issues that transcend individual Government agencies; and

(B) increase the professionalism and effectiveness of personnel by developing policies, standards, and approaches to aid in the establishment of a well-trained and highly skilled workforce in the offices of the Inspectors General.

(b) Membership.—

(1) In general.—The Council shall consist of the following members:

(A) All Inspectors General whose offices are established under—

(i) section 402 of this title; or

(ii) section 415 of this title.

(B) The Inspectors General of the Intelligence Community and the Central Intelligence Agency.

(C) The Controller of the Office of Federal Financial Management.

(D) A senior level official of the Federal Bureau of Investigation designated by the Director of the Federal Bureau of Investigation.

(E) The Director of the Office of Government Ethics.

(F) The Special Counsel of the Office of Special Counsel.

(G) The Deputy Director of the Office of Personnel Management.

(H) The Deputy Director for Management of the Office of Management and Budget.

(I) The Inspectors General of the Library of Congress, Capitol Police, Government Publishing Office, Government Accountability Office, and the Architect of the Capitol.

(2) Chairperson and executive chairperson.—

(A) Executive chairperson.—The Deputy Director for Management of the Office of Management and Budget shall be the Executive Chairperson of the Council.

(B) Chairperson.—The Council shall elect 1 of the Inspectors General referred to in paragraph (1)(A) or (B) to act as Chairperson of the Council. The term of office of the Chairperson shall be 2 years.

(3) Functions of chairperson and executive chairperson.—

(A) Executive chairperson.—The Executive Chairperson shall—

(i) preside over meetings of the Council;

(ii) provide to the heads of agencies and entities represented on the Council summary reports of the activities of the Council; and

(iii) provide to the Council such information relating to the agencies and entities represented on the Council as assists the Council in performing its functions.

(B) Chairperson.—The Chairperson shall—

(i) convene meetings of the Council—

(I) at least 6 times each year;

(II) monthly to the extent possible; and

(III) more frequently at the discretion of the Chairperson;

(ii) carry out the functions and duties of the Council under subsection (c);

(iii) appoint a Vice Chairperson to assist in carrying out the functions of the Council and act in the absence of the Chairperson, from a category of Inspectors General described in subparagraph (A)(i), (A)(ii), or (B) of paragraph (1), other than the category from which the Chairperson was elected;

(iv) make such payments from funds otherwise available to the Council as may be necessary to carry out the functions of the Council;

(v) select, appoint, and employ personnel as needed to carry out the functions of the Council subject to the provisions of this title governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of this title, relating to classification and General Schedule pay rates;

(vi) to the extent and in such amounts as may be provided in advance by appropriations Acts, made available from the revolving fund established under subsection (c)(3)(B), or as otherwise provided by law, enter into contracts and other arrangements with public agencies and private persons to carry out the functions and duties of the Council;

(vii) establish, in consultation with the members of the Council, such committees as determined by the Chairperson to be necessary and appropriate for the efficient conduct of Council functions; and

(viii) prepare and transmit an annual report on behalf of the Council on the activities of the Council to—

(I) the President;

(II) the appropriate committees of jurisdiction of the Senate and the House of Representatives;

(III) the Committee on Homeland Security and Governmental Affairs of the Senate; and

(IV) the Committee on Oversight and Reform of the House of Representatives.

(c) Functions and Duties of Council.—

(1) In general.—The Council shall—

(A) continually identify, review, and discuss areas of weakness and vulnerability in Federal programs and operations with respect to fraud, waste, and abuse;

(B) develop plans for coordinated, Governmentwide activities that address these problems and promote economy and efficiency in Federal programs and operations, including interagency and interentity audit, investigation, inspection, and evaluation programs and projects to deal efficiently and effectively with those problems concerning fraud and waste that exceed the capability or jurisdiction of an individual agency or entity;

(C) develop policies that will aid in the maintenance of a corps of well-trained and highly skilled Office of Inspector General personnel;

(D) maintain an Internet website and other electronic systems for the benefit of all Inspectors General, as the Council determines are necessary or desirable;

(E) maintain 1 or more academies as the Council considers desirable for the professional training of auditors, investigators, inspectors, evaluators, and other personnel of the various offices of Inspector General;

(F) submit recommendations of individuals to the appropriate appointing authority for any appointment to an office of Inspector General described under subsection (b)(1)(A) or (B);

(G) make such reports to Congress as the Chairperson determines are necessary or appropriate;

(H) except for matters coordinated among Inspectors General under section 103H of the National Security Act of 1947 (50 U.S.C. 3033), receive, review, and mediate any disputes submitted in writing to the Council by an Office of Inspector General regarding an audit, investigation, inspection, evaluation, or project that involves the jurisdiction of more than one Office of Inspector General; and

(I) perform other duties within the authority and jurisdiction of the Council, as appropriate.

(2) Adherence and participation by members.—To the extent permitted under law, and to the extent not inconsistent with standards established by the Comptroller General of the United States for audits of Federal establishments, organizations, programs, activities, and functions, each member of the Council, as appropriate, shall—

(A) adhere to professional standards developed by the Council; and

(B) participate in the plans, programs, and projects of the Council, except that in the case of a member described under subsection (b)(1)(I), the member shall participate only to the extent requested by the member and approved by the Executive Chairperson and Chairperson.

(3) Additional administrative authorities.—

(A) Interagency funding.—Notwithstanding section 1532 of title 31, or any other provision of law prohibiting the interagency funding of activities described under subclause (I), (II), or (III) of clause (i), in the performance of the responsibilities, authorities, and duties of the Council—

(i) the Executive Chairperson may authorize the use of interagency funding for—

(I) Governmentwide training of employees of the Offices of the Inspectors General;

(II) the functions of the Integrity Committee of the Council; and

(III) any other authorized purpose determined by the Council; and

(ii) upon the authorization of the Executive Chairperson, any Federal agency or designated Federal entity (as defined in section 415(a) of this title) which has a member on the Council shall fund or participate in the funding of such activities.

(B) Revolving fund.—

(i) In general.—The Council may—

(I) establish in the Treasury of the United States a revolving fund to be called the Inspectors General Council Fund; or

(II) enter into an arrangement with a department or agency to use an existing revolving fund.

(ii) Amounts in revolving fund.—

(I) In general.—Amounts transferred to the Council under this subsection shall be deposited in the revolving fund described under clause (i)(I) or (II).

(II) Training.—Any remaining unexpended balances appropriated for or otherwise available to the Inspectors General Criminal Investigator Academy and the Inspectors General Auditor Training Institute shall be transferred to the revolving fund described under clause (i)(I) or (II).

(iii) Use of revolving fund.—

(I) In general.—Except as provided under subclause (II), amounts in the revolving fund described under clause (i)(I) or (II) may be used to carry out the functions and duties of the Council under this subsection.

(II) Training.—Amounts transferred into the revolving fund described under clause (i)(I) or (II) may be used for the purpose of maintaining any training academy as determined by the Council.

(iv) Availability of funds.—Amounts in the revolving fund described under clause (i)(I) or (II) shall remain available to the Council without fiscal year limitation.

(C) Superseding provisions.—No provision of law enacted after October 14, 2008, shall be construed to limit or supersede any authority under subparagraph (A) or (B), unless such provision makes specific reference to the authority in that subparagraph.

(4) Existing authorities and responsibilities.—The establishment and operation of the Council shall not affect—

(A) the role of the Department of Justice in law enforcement and litigation;

(B) the authority or responsibilities of any Government agency or entity; and

(C) the authority or responsibilities of individual members of the Council.

(5) Additional responsibilities relating to whistleblower protection.—The Council shall—

(A) facilitate the work of the Whistleblower Protection Coordinators designated under section 403(d)(1)(C) of this title; and

(B) in consultation with the Office of Special Counsel and Whistleblower Protection Coordinators from the member offices of the Inspector General, develop best practices for coordination and communication in promoting the timely and appropriate handling and consideration of protected disclosures, allegations of reprisal, and general matters regarding the implementation and administration of whistleblower protection laws, in accordance with Federal law.

(d) Integrity Committee.—

(1) Establishment.—The Council shall have an Integrity Committee, which shall receive, review, and refer for investigation allegations of wrongdoing that are made against Inspectors General and staff members of the various Offices of Inspector General described under paragraph (4)(C).

(2) Membership.—

(A) In general.—The Integrity Committee shall consist of the following members:

(i) The official of the Federal Bureau of Investigation serving on the Council.

(ii) Four Inspectors General described in subparagraph (A) or (B) of subsection (b)(1) appointed by the Chairperson of the Council, representing both establishments and designated Federal entities (as that term is defined in section 415(a) of this title).

(iii) The Director of the Office of Government Ethics or the designee of the Director.

(B) Chairperson.—

(i) In general.—The Integrity Committee shall elect one of the Inspectors General referred to in subparagraph (A)(ii) to act as Chairperson of the Integrity Committee.

(ii) Term.—The term of office of the Chairperson of the Integrity Committee shall be 2 years.

(3) Legal advisor.—The Chief of the Public Integrity Section of the Criminal Division of the Department of Justice, or the Chief's designee, shall serve as a legal advisor to the Integrity Committee.

(4) Referral of allegations.—

(A) Definition of staff member.—In this paragraph, the term "staff member" means any employee of an Office of Inspector General who—

(i) reports directly to an Inspector General; or

(ii) is designated by an Inspector General under subparagraph (C).

(B) Requirement.—An Inspector General shall refer to the Integrity Committee any allegation of wrongdoing against a staff member of the office of that Inspector General, if—

(i) review of the substance of the allegation cannot be assigned to an agency of the executive branch with appropriate jurisdiction over the matter; and

(ii) the Inspector General determines that—

(I) an objective internal investigation of the allegation is not feasible; or

(II) an internal investigation of the allegation may appear not to be objective.

(C) Designation of staff members.—Each Inspector General shall annually submit to the Chairperson of the Integrity Committee a designation of positions whose holders are staff members for purposes of subparagraph (A).

(5) Review of allegations.—

(A) In general.—Not later than 7 days after the date on which the Integrity Committee receives an allegation of wrongdoing against an Inspector General or against a staff member of an Office of Inspector General described under paragraph (4)(C), the allegation of wrongdoing shall be reviewed and referred to the Department of Justice or the Office of Special Counsel for investigation, or to the Integrity Committee for review, as appropriate, by—

(i) a representative of the Department of Justice, as designated by the Attorney General;

(ii) a representative of the Office of Special Counsel, as designated by the Special Counsel; and

(iii) a representative of the Integrity Committee, as designated by the Chairperson of the Integrity Committee.

(B) Referral to the chairperson.—

(i) In general.—Except as provided in clause (ii), not later than 30 days after the date on which an allegation of wrongdoing is referred to the Integrity Committee under subparagraph (A), the Integrity Committee shall determine whether to refer the allegation of wrongdoing to the Chairperson of the Integrity Committee to initiate an investigation.

(ii) Extension.—The 30-day period described in clause (i) may be extended for an additional period of 30 days if the Integrity Committee provides written notice to the congressional committees described in paragraph (8)(A)(iii) that includes a detailed, case-specific description of why the additional time is needed to evaluate the allegation of wrongdoing.

(6) Authority to investigate allegations.—

(A) Requirement.—The Chairperson of the Integrity Committee shall cause a thorough and timely investigation of each allegation referred under paragraph (5)(B) to be conducted in accordance with this paragraph.

(B) Resources.—At the request of the Chairperson of the Integrity Committee, the head of each agency or entity represented on the Council—

(i) shall provide assistance necessary to the Integrity Committee; and

(ii) may detail employees from that agency or entity to the Integrity Committee, subject to the control and direction of the Chairperson, to conduct an investigation under this subsection.

(7) Procedures for investigations.—

(A) Standards applicable.—Investigations initiated under this subsection shall be conducted in accordance with the most current Quality Standards for Investigations issued by the Council or by its predecessors (the President's Council on Integrity and Efficiency and the Executive Council on Integrity and Efficiency).

(B) Additional policies and procedures.—

(i) Establishment.—The Integrity Committee, in conjunction with the Chairperson of the Council, shall establish additional policies and procedures necessary to ensure fairness and consistency in—

(I) determining whether to initiate an investigation;

(II) conducting investigations;

(III) reporting the results of an investigation;

(IV) providing the person who is the subject of an investigation with an opportunity to respond to any Integrity Committee report;

(V) except as provided in clause (ii), ensuring, to the extent possible, that investigations are conducted by Offices of Inspector General of similar size;

(VI) creating a process for rotation of Inspectors General assigned to investigate allegations through the Integrity Committee; and

(VII) creating procedures to avoid conflicts of interest for Integrity Committee investigations.

(ii) Exception.—The requirement under clause (i)(V) shall not apply to any Office of Inspector General with less than 50 employees who are authorized to conduct audits or investigations.

(iii) Submission to congress.—The Council shall submit a copy of the policies and procedures established under clause (i) to the congressional committees of jurisdiction.

(C) Completion of investigation.—If an allegation of wrongdoing is referred to the Chairperson of the Integrity Committee under paragraph (5)(B), the Chairperson of the Integrity Committee—

(i) shall complete the investigation not later than 150 days after the date on which the Integrity Committee made the referral; and

(ii) if the investigation cannot be completed within the 150-day period described in clause (i), shall—

(I) promptly notify the congressional committees described in paragraph (8)(A)(iii); and

(II) brief the congressional committees described in paragraph (8)(A)(iii) every 30 days regarding the status of the investigation and the general reasons for delay until the investigation is complete.

(D) Concurrent investigation.—If an allegation of wrongdoing against an Inspector General or a staff member of an Office of Inspector General described under paragraph (4)(C) is referred to the Department of Justice or the Office of Special Counsel under paragraph (5)(A), the Chairperson of the Integrity Committee may conduct any related investigation referred to the Chairperson under paragraph (5)(B) concurrently with the Department of Justice or the Office of Special Counsel, as applicable.

(E) Reports.—

(i) Integrity committee investigations.—For each investigation of an allegation of wrongdoing referred to the Chairperson of the Integrity Committee under paragraph (5)(B), the Chairperson of the Integrity Committee shall submit to members of the Integrity Committee and to the Chairperson of the Council a report containing the results of the investigation.

(ii) Other investigations.—For each allegation of wrongdoing referred to the Department of Justice or the Office of Special Counsel under paragraph (5)(A), the Attorney General or the Special Counsel, as applicable, shall submit to the Integrity Committee a report containing the results of the investigation.

(iii) Availability to congress.—

(I) In general.—The congressional committees described in paragraph (8)(A)(iii) shall have access to any report authored by the Integrity Committee.

(II) Members of congress.—Subject to any other provision of law that would otherwise prohibit disclosure of such information, the Integrity Committee may provide any report authored by the Integrity Committee to any Member of Congress.

(8) Assessment and final disposition.—

(A) In general.—With respect to any report received under paragraph (7)(E), the Integrity Committee shall—

(i) assess the report;

(ii) forward the report, with the recommendations of the Integrity Committee, including those on disciplinary action, within 30 days (to the maximum extent practicable) after the completion of the investigation, to the Executive Chairperson of the Council and to the President (in the case of a report relating to an Inspector General of an establishment or any employee of that Inspector General) or the head of a designated Federal entity (in the case of a report relating to an Inspector General of such an entity or any employee of that Inspector General) for resolution;

(iii) submit the report, with the recommendations of the Integrity Committee, to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Reform of the House of Representatives, and other congressional committees of jurisdiction; and

(iv) following the submission of the report under clause (iii) and upon request by any Member of Congress, submit the report, with the recommendations of the Integrity Committee, to that Member.

(B) Disposition.—The Executive Chairperson of the Council shall report to the Integrity Committee the final disposition of the matter, including what action was taken by the President or agency head.

(9) Annual report.—The Council shall submit to Congress and the President by December 31 of each year a report on the activities of the Integrity Committee during the preceding fiscal year, which shall include the following:

(A) The number of allegations received.

(B) The number of allegations referred to the Department of Justice or the Office of Special Counsel, including the number of allegations referred for criminal investigation.

(C) The number of allegations referred to the Chairperson of the Integrity Committee for investigation.

(D) The number of allegations closed without referral.

(E) The date each allegation was received and the date each allegation was finally disposed of.

(F) In the case of allegations referred to the Chairperson of the Integrity Committee, a summary of the status of the investigation of the allegations and, in the case of investigations completed during the preceding fiscal year, a summary of the findings of the investigations.

(G) Other matters that the Council considers appropriate.

(10) Requests for more information.—With respect to paragraphs (8) and (9), the Council shall provide more detailed information about specific allegations upon request from any Member of Congress.

(11) No right or benefit.—This subsection is not intended to create any right or benefit, substantive or procedural, enforceable at law by a person against the United States, its agencies, its officers, or any person.

(12) Allegations of wrongdoing against special counsel or deputy special counsel.—

(A) Special counsel defined.—In this paragraph, the term "Special Counsel" means the Special Counsel appointed under section 1211(b) of title 5.

(B) Authority of integrity committee.—

(i) In general.—An allegation of wrongdoing against the Special Counsel or the Deputy Special Counsel may be received, reviewed, and referred for investigation to the same extent and in the same manner as in the case of an allegation against an Inspector General or against a staff member of an Office of Inspector General described under paragraph (4)(C), subject to the requirement that the representative designated by the Special Counsel under paragraph (5)(A)(ii) shall recuse himself or herself from the consideration of any allegation brought under this paragraph.

(ii) Coordination with existing provisions of law.—This paragraph shall not eliminate access to the Merit Systems Protection Board for review under section 7701 of title 5. To the extent that an allegation brought under this paragraph involves section 2302(b)(8) of title 5, a failure to obtain corrective action within 120 days after the date on which the allegation is received by the Integrity Committee shall, for purposes of section 1221 of title 5, be considered to satisfy section 1214(a)(3)(B) of title 5.

(C) Regulations.—The Integrity Committee may prescribe any rules or regulations necessary to carry out this paragraph, subject to such consultation or other requirements as may otherwise apply.

(13) Committee records.—The Chairperson of the Council shall maintain the records of the Integrity Committee.

(e) Oversight.gov.—

(1) Definition.—In this subsection, the term "Office of Inspector General" means the Office of—

(A) an Inspector General described in subparagraph (A), (B), or (I) of subsection (b)(1);

(B) the Special Inspector General for Afghanistan Reconstruction established under section 1229 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 122 Stat. 378);

(C) the Special Inspector General for the Troubled Asset Relief Program established under section 121 of title I of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5231); and

(D) the Special Inspector General for Pandemic Recovery established under section 4018 of the Coronavirus Economic Stabilization Act of 2020 (15 U.S.C. 9053).

(2) Establishment.—The Council shall establish and maintain a website entitled "oversight.gov"—

(A) to consolidate all public reports from each Office of Inspector General to improve the access of the public to any audit report, inspection report, or evaluation report (or portion of any such report) made by an Office of Inspector General; and

(B) that shall include any additional resources, information, and enhancements as the Council determines are necessary or desirable.

(3) Participation of offices of inspectors general.—Each Office of Inspector General that publishes an audit report, inspection report, or evaluation report (or portion of any such report) on the website of the Office of Inspector General shall, or in the case of the office of an Inspector General described in subparagraph (I) of subsection (b)(1) may, contemporaneously publish the report (or portion of the report) on oversight.gov in a manner prescribed by the Council.

(4) Effective date.—This subsection shall take effect on the date that is 30 days after the date of receipt by the Council of the Inspectors General on Integrity and Efficiency of an appropriation for the implementation of this subsection.

(Pub. L. 117–286, §3(b), Dec. 27, 2022, 136 Stat. 4256.)

Amendments Not Shown in Text

This section was derived from section 11 of the Inspector General Act of 1978, Pub. L. 95–452, which was set out in the former Appendix to this title, and as it existed as of Oct. 19, 2021. Section 11 of Pub. L. 95–452 was amended by Pub. L. 117–263, div. E, title LII, §§5204(b), 5232–5234, 5236, 5237, 5251, 5271, 5272(9), Dec. 23, 2022, 136 Stat. 3233–3235, 3237-3239, 3241, prior to being repealed and reenacted as this section by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4256, 4361. For applicability of those amendments to this section, see section 5(b) of Pub. L. 117–286, set out in a Transitional and Savings Provisions note preceding section 101 of this title. Section 11 of Pub. L. 95–452 was amended as follows:

(1) in subsection (b)(3)(B)(viii)—

(A) by striking subclauses (III) and (IV);

(B) in subclause (I), by adding "and" at the end; and

(C) by amending subclause (II) to read as follows:

"(II) the appropriate congressional committees.";

(2) in subsection (c)—

(A) in paragraph (1), by redesignating subparagraphs (E) through (I) as subparagraphs (F) through (J), respectively, and by inserting after subparagraph (D) the following:

"(E) support the professional development of Inspectors General, including by providing training opportunities on the duties, responsibilities, and authorities under this Act and on topics relevant to Inspectors General and the work of Inspectors General, as identified by Inspectors General and the Council.";

(B) in paragraph (3), by adding at the end the following:

"(D) REPORT ON EXPENDITURES.—Not later than November 30 of each year, the Chairperson shall submit to the appropriate committees or subcommittees of Congress, including the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives, a report on the expenditures of the Council for the preceding fiscal year, including from direct appropriations to the Council, interagency funding pursuant to subparagraph (A), a revolving fund pursuant to subparagraph (B), or any other source."; and

(C) in paragraph (5)(B), by striking ", allegations of reprisal," and inserting "and allegations of reprisal (including the timely and appropriate handling and consideration of protected disclosures and allegations of reprisal that are internal to an Office of Inspector General)"; and

(3) in subsection (d)—

(A) in paragraph (5)(B)—

(i) in clause (ii), by striking the period at the end and inserting ", the length of time the Integrity Committee has been evaluating the allegation of wrongdoing, and a description of any previous written notice provided under this clause with respect to the allegation of wrongdoing, including the description provided for why additional time was needed."; and

(ii) by adding at the end the following:

"(iii) AVAILABILITY OF INFORMATION TO CONGRESS ON CERTAIN ALLEGATIONS OF WRONGDOING CLOSED WITHOUT REFERRAL.—With respect to an allegation of wrongdoing made by a member of Congress that is closed by the Integrity Committee without referral to the Chairperson of the Integrity Committee to initiate an investigation, the Chairperson of the Integrity Committee shall, not later than 60 days after closing the allegation of wrongdoing, provide a written description of the nature of the allegation of wrongdoing and how the Integrity Committee evaluated the allegation of wrongdoing to—

"(I) the Chair and Ranking Minority Member of the Committee on Homeland Security and Governmental Affairs of the Senate; and

"(II) the Chair and Ranking Minority Member of the Committee on Oversight and Reform of the House of Representatives.";

(B) in paragraph (7)(B)(i)(V), by inserting ", and that an investigation of an Office of Inspector General of an establishment is conducted by another Office of Inspector General of an establishment" after "size";

(C) in paragraph (8)—

(i) in subparagraph (A)(ii), by inserting "or corrective action" after "disciplinary action";

(ii) in subparagraph (A)(iii), by striking "to the" and all that follows through "jurisdiction" and inserting "to the appropriate congressional committees"; and

(iii) in subparagraph (B), by inserting "and the appropriate congressional committees" after "Integrity Committee"; and

(D) by amending paragraph (9) to read as follows:

"(9) SEMIANNUAL REPORT.—On or before May 31, 2023, and every 6 months thereafter, the Council shall submit to Congress and the President a report on the activities of the Integrity Committee during the immediately preceding 6-month periods ending March 31 and September 30, which shall include the following with respect to allegations of wrongdoing that are made against Inspectors General and staff members of the various Offices of Inspector General described in paragraph (4)(C):

"(A) An overview and analysis of the allegations of wrongdoing disposed of by the Integrity Committee, including—

"(i) analysis of the positions held by individuals against whom allegations were made, including the duties affiliated with such positions;

"(ii) analysis of the categories or types of the allegations of wrongdoing; and

"(iii) a summary of disposition of all the allegations.

"(B) The number of allegations received by the Integrity Committee.

"(C) The number of allegations referred to the Department of Justice or the Office of Special Counsel, including the number of allegations referred for criminal investigation.

"(D) The number of allegations referred to the Chairperson of the Integrity Committee for investigation, a general description of the status of such investigations, and a summary of the findings of investigations completed.

"(E) An overview and analysis of allegations of wrongdoing received by the Integrity Committee during any previous reporting period, but remained pending during some part of the six months covered by the report, including—

"(i) analysis of the positions held by individuals against whom allegations were made, including the duties affiliated with such positions;

"(ii) analysis of the categories or types of the allegations of wrongdoing; and

"(iii) a summary of disposition of all the allegations.

"(F) The number and category or type of pending investigations.

"(G) For each allegation received—

"(i) the date on which the investigation was opened;

"(ii) the date on which the allegation was disposed of, as applicable; and

"(iii) the case number associated with the allegation.

"(H) The nature and number of allegations to the Integrity Committee closed without referral, including the justification for why each allegation was closed without referral.

"(I) A brief description of any difficulty encountered by the Integrity Committee when receiving, evaluating, investigating, or referring for investigation an allegation received by the Integrity Committee, including a brief description of—

"(i) any attempt to prevent or hinder an investigation; or

"(ii) concerns about the integrity or operations at an Office of Inspector General.

"(J) Other matters that the Council considers appropriate."

For definition of "appropriate congressional committees" as seen in the above amendments by Pub. L. 117–263, see Amendments Not Shown in Text note set out under section 401 of this title.

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
424(a) through (e)(3)	5 U.S.C. App. (IGA §11)	Pub. L. 95–452, §11, as added Pub. L. 110–409, §7(a), Oct. 14, 2008, 122 Stat. 4305; amended Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 114–113, div. M, title III, §304, Dec. 18, 2015, 129 Stat. 2913; Pub. L. 114–317, §§3, 7(b)(1)(B), (d)(2)(G), Dec. 16, 2016, 130 Stat. 1596, 1605, 1606; Pub. L. 115–192, §2(b), June 25, 2018, 132 Stat. 1503; Pub. L. 116–260, div. U, title V, §501(a), Dec. 27, 2020, 134 Stat. 2293.
424(e)(4)	(no source)

In subsection (b)(1)(I), the words "Government Publishing Office" are substituted for "Government Printing Office" because of section 1301(b) of the Legislative Branch Appropriations Act, 2015 (Public Law 113–235, div. H, 44 U.S.C. note prec. 301).

In subsection (b)(3)(B)(viii)(IV), the words "Committee on Oversight and Reform" are substituted for "Committee on Oversight and Government Reform" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

In subsection (c)(1)(H), the words "section 103H of the National Security Act of 1947 (50 U.S.C. 3033)" are substituted for "section 3033 of title 50, United States Code" to correct the citation.

In subsection (c)(3)(C), the date "October 14, 2008" is substituted for "the date of enactment of this subsection" to reflect the date of enactment of the Inspector General Reform Act of 2008 (Public Law 110–409, 122 Stat. 4302). Section 7(a) of the Inspector General Reform Act of 2008 (Public Law 110–409, 122 Stat. 4305) enacted section 11 (including subsection (c)) of the Inspector General Act of 1978.

In subsection (c)(3)(C), the words "the authority in that subparagraph" are substituted for "the authority in that paragraph" to correct an error in the law.

In subsection (c)(5)(A), the reference to "section 403(d)(1)(C) of this title" is substituted for "section 3(d)(C)" for clarity and to correct an error in the law. In section 11(c)(5)(A) of the Inspector General Act of 1978, as added by section 2(b) of the Whistleblower Protection Coordination Act (Public Law 115–192, 132 Stat. 1503), the reference to "section 3(d)(C)" should be to "section 3(d)(1)(C)". Section 3(d)(1)(C) of the Inspector General Act of 1978 is restated as "section 403(d)(1)(C) of this title" (i.e., section 403(d)(1)(C) of title 5, United States Code).

In subsection (d)(8)(A), at the end of clause (ii), the word "and" is omitted to correct an error in the law.

In subsection (d)(8)(A)(iii), the words "Committee on Oversight and Reform" are substituted for "Committee on Oversight and Government Reform" on authority of rule X(1)(n) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (116th Congress, January 9, 2019).

In subsection (e)(1)(C), the word "Program" is substituted for the word "Plan" (in the phrase "Troubled Asset Relief Program") to correct an error in the law. In subsection (e)(1)(D), the words "Coronavirus Economic Stabilization Act of 2020" are substituted for "CARES Act" to use the applicable short title as provided in section 4001 of Public Law 116–136 (134 Stat. 469).

In subsection (e), paragraph (4) is added to carry forward the effective date provision from section 501(c) of the Consolidated Appropriations Act, 2021 (Public Law 116–260, div. U, title V, 134 Stat. 2294). Section 501(c) of the Consolidated Appropriations Act, 2021 provides that: "This Act and the amendments made by this Act shall take effect on the date that is 30 days after the date of receipt by the Council of the Inspectors General on Integrity and Efficiency of an appropriation for the implementation of this Act.". The scope of applicability for the effective date provision is unclear because the references to this Act are ambiguous. The references to this Act do not refer the entirety of the Consolidated Appropriations Act, 2021, because the references are limited by section 3 of the Consolidated Appropriations Act, 2021 (Public Law 116–260, 134 Stat. 1185), which provides that: "Except as expressly provided otherwise, any reference to 'this Act' contained in any division of this Act shall be treated as referring only to the provisions of that division.". At most, therefore, the references to this Act refer only to the provisions of division U of the Act (beginning at 134 Stat. 2286). However, it is questionable whether Congress intends the effective date to apply to the entirety of division U. The relevant portion of division U appears to be limited to section 501 of the Consolidated Appropriations Act, 2021. The effective date is clearly intended to apply to section 501 of the Act, but it is unclear whether it is intended to apply to other portions of division U. In the restatement, paragraph (4) of subsection (e) carries forward the effective date as a "no-source" provision, explicitly making the effective date apply to the provisions added by section 501 of the Consolidated Appropriations Act, 2021, while avoiding the repeal of section 501(c) of the Consolidated Appropriations Act, 2021, which continues to apply (or not) to other portions of division U to whatever extent Congress originally intended.

Editorial Notes

References in Text

Section 1229 of the National Defense Authorization Act for Fiscal Year 2008, referred to in subsec. (e)(1)(B), is section 1229 of Pub. L. 110–181, which is set out as a note under section 415 of this title.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Pandemic Response Accountability Committee

Pub. L. 116–136, div. B, title V, §15010, Mar. 27, 2020, 134 Stat. 533, as amended by Pub. L. 116–260, div. O, title VIII, §801(b), Dec. 27, 2020, 134 Stat. 2155; Pub. L. 117–103, div. E, title VII, §750, Mar. 15, 2022, 136 Stat. 307, provided that:

"(a) In this section—

"(1) the term 'agency' has the meaning given the term in section 551 of title 5, United States Code;

"(2) the term 'appropriate congressional committees' means—

"(A) the Committees on Appropriations of the Senate and the House of Representatives;

"(B) the Committee on Homeland Security and Governmental Affairs of the Senate;

"(C) the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives; and

"(D) any other relevant congressional committee of jurisdiction;

"(3) the term 'Chairperson' means the Chairperson of the Committee;

"(4) the term 'Council' means the Council of the Inspectors General on Integrity and Efficiency established under section 11 of the Inspector General Act of 1978 ([former] 5 U.S.C. App) [see 5 U.S.C. 424];

"(5) the term 'Committee' means the Pandemic Response Accountability Committee established under subsection (b);

"(6) the term 'covered funds' means any funds, including loans, that are made available in any form to any non-Federal entity, not including an individual, under—

"(A) the Coronavirus Aid, Relief, and Economic Security Act [Pub. L. 116–136] (divisions A and B) [see Tables for classification];

"(B) the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Public Law 116–123);

"(C) the Families First Coronavirus Response Act (Public Law 116–127);

"(D) the Paycheck Protection Program and Health Care Enhancement Act (Public Law 116–139) [see Short Title of 2020 Amendment note set out under section 9001 of Title 15, Commerce and Trade];

"(E) divisions M and N of the Consolidated Appropriations Act, 2021 [Pub. L. 116–260, see Tables for classification]; or

"(F) the American Rescue Plan Act of 2021 (Public Law 117–2) [see Short Title of 2021 Amendment note set out under section 9001 of Title 15, Commerce and Trade];

"(7) the term 'Coronavirus response' means the Federal Government's response to the nationwide public health emergency declared by the Secretary of Health and Human Services, retroactive to January 27, 2020, pursuant to section 319 of the Public Health Service Act (42 U.S.C. 247d), as a result of confirmed cases of the novel coronavirus (COVID–19) in the United States.

"(b) There is established within the Council the Pandemic Response Accountability Committee to promote transparency and conduct and support oversight of covered funds and the Coronavirus response to—

"(1) prevent and detect fraud, waste, abuse, and mismanagement; and

"(2) mitigate major risks that cut across program and agency boundaries.

"(c)(1) The Chairperson of the Committee shall be selected by the Chairperson of the Council from among Inspectors General described in subparagraphs (B), (C), and (D) of paragraph (2) with experience managing oversight of large organizations and expenditures.

"(2) The members of the Committee shall include—

"(A) the Chairperson;

"(B) the Inspectors General of the Departments of Defense, Education, Health and Human Services, Homeland Security, Justice, Labor, and the Treasury;

"(C) the Inspector General of the Small Business Administration;

"(D) the Treasury Inspector General for Tax Administration; and

"(E) any other Inspector General, as designated by the Chairperson from any agency that expends or obligates covered funds or is involved in the Coronavirus response.

"(3)(A) There shall be an Executive Director and a Deputy Executive Director of the Committee.

"(B)(i)(I) Not later than 30 days after the date of enactment of this Act [Mar. 27, 2020], the Executive Director of the Committee shall be appointed by the Chairperson of the Council, in consultation with the majority leader of the Senate, the Speaker of the House of Representatives, the minority leader of the Senate, and the minority leader of the House of Representatives.

"(II) Not later than 90 days after the date of enactment of this Act, the Deputy Executive Director of the Committee shall be appointed by the Chairperson of the Council, in consultation with the majority leader of the Senate, the Speaker of the House of Representatives, the minority leader of the Senate, the minority leader of the House of Representatives, and the Executive Director of the Committee.

"(ii) The Executive Director and the Deputy Executive Director of the Committee shall—

"(I) have demonstrated ability in accounting, auditing, and financial analysis;

"(II) have experience managing oversight of large organizations and expenditures; and

"(III) be full-time employees of the Committee.

"(C) The Executive Director of the Committee shall—

"(i) report directly to the Chairperson;

"(ii) appoint staff of the Committee, subject to the approval of the Chairperson, consistent with subsection (f);

"(iii) supervise and coordinate Committee functions and staff; and

"(iv) perform any other duties assigned to the Executive Director by the Committee.

"(4)(A) Members of the Committee may not receive additional compensation for services performed.

"(B) The Executive Director and Deputy Executive Director of the Committee shall be compensated at the rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code.

"(d)(1)(A) The Committee shall conduct and coordinate oversight of covered funds and the Coronavirus response and support Inspectors General in the oversight of covered funds and the Coronavirus response in order to—

"(i) detect and prevent fraud, waste, abuse, and mismanagement; and

"(ii) identify major risks that cut across programs and agency boundaries.

"(B) The functions of the Committee shall include—

"(i) developing a strategic plan to ensure coordinated, efficient, and effective comprehensive oversight by the Committee and Inspectors General over all aspects of covered funds and the Coronavirus response;

"(ii) auditing or reviewing covered funds, including a comprehensive audit and review of charges made to Federal contracts pursuant to authorities provided in the Coronavirus Aid, Relief, and Economic Security Act [Pub. L. 116–136], to determine whether wasteful spending, poor contract or grant management, or other abuses are occurring and referring matters the Committee considers appropriate for investigation to the Inspector General for the agency that disbursed the covered funds, including conducting randomized audits to identify fraud;

"(iii) reviewing whether the reporting of contracts and grants using covered funds meets applicable standards and specifies the purpose of the contract or grant and measures of performance;

"(iv) reviewing the economy, efficiency, and effectiveness in the administration of, and the detection of fraud, waste, abuse, and mismanagement in, Coronavirus response programs and operations;

"(v) reviewing whether competition requirements applicable to contracts and grants using covered funds have been satisfied;

"(vi) serving as a liaison to the Director of the Office of Management and Budget, the Secretary of the Treasury, and other officials responsible for implementing the Coronavirus response;

"(vii) reviewing whether there are sufficient qualified acquisition, grant, and other applicable personnel overseeing covered funds and the Coronavirus response;

"(viii) reviewing whether personnel whose duties involve the Coronavirus response or acquisitions or grants made with covered funds or are otherwise related to the Coronavirus response receive adequate training, technology support, and other resources;

"(ix) reviewing whether there are appropriate mechanisms for interagency collaboration relating to the oversight of covered funds and the Coronavirus response, including coordinating and collaborating to the extent practicable with State and local government entities;

"(x) expeditiously reporting to the Attorney General any instance in which the Committee has reasonable grounds to believe there has been a violation of Federal criminal law; and

"(xi) coordinating and supporting Inspectors General on matters related to oversight of covered funds and the Coronavirus response.

"(2)(A)(i) The Committee shall submit to the President and Congress, including the appropriate congressional committees, management alerts on potential management, risk, and funding problems that require immediate attention.

"(ii) The Committee shall submit to Congress such other reports or provide such periodic updates on the work of the Committee as the Committee considers appropriate on the use of covered funds and the Coronavirus response.

"(B) The Committee shall submit biannual reports to the President and Congress, including the appropriate congressional committees, and may submit additional reports as appropriate—

"(i) summarizing the findings of the Committee; and

"(ii) identifying and quantifying the impact of any tax expenditures or credits authorized under this Act to the extent practicable.

"(C)(i) All reports submitted under this paragraph shall be made publicly available and posted on the website established under subsection (g).

"(ii) Any portion of a report submitted under this paragraph may be redacted when made publicly available, if that portion would disclose information that is not subject to disclosure under sections 552 and 552a of title 5, United States Code, or is otherwise prohibited from disclosure by law.

"(3)(A) The Committee shall make recommendations to agencies on measures to prevent or address fraud, waste, abuse and mismanagement, and to mitigate risks that cut across programs and agency boundaries, relating to covered funds and the Coronavirus response.

"(B) Not later than 30 days after receipt of a recommendation under subparagraph (A), an agency shall submit a report to the President and the appropriate congressional committees on—

"(i) whether the agency agrees or disagrees with the recommendations; and

"(ii) any actions the agency will take to implement the recommendations, which shall also be included in the report required under section 2(b) of the GAO–IG Act [Pub. L. 115–414] (31 U.S.C. 1105 note).

"(e)(1) The Committee shall conduct audits and reviews of programs, operations, and expenditures relating to covered funds and the Coronavirus response and coordinate on such activities with the Inspector General of the relevant agency to avoid unnecessary duplication and overlap of work.

"(2) The Committee may—

"(A) conduct its own independent investigations, audits, and reviews relating to covered funds or the Coronavirus response;

"(B) collaborate on audits and reviews relating to covered funds with any Inspector General of an agency; and

"(C) provide support to relevant agency Inspectors General in conducting investigations, audits, and reviews relating to the covered funds and Coronavirus response.

"(3)(A) In conducting and supporting investigations, audits, and reviews under this subsection, the Committee—

"(i) shall have the authorities provided under section 6 of the Inspector General Act of 1978 ([former] 5 U.S.C. App.) [see 5 U.S.C. 406];

"(ii) may issue subpoenas to compel the testimony of persons who are not Federal officers or employees; and

"(iii) may enforce such subpoenas in the event of a refusal to obey by order of any appropriate United States district court as provided for under section 6 of the Inspector General Act of 1978 (5 U.S.C. App).

"(B) The Committee shall carry out the powers under paragraphs (1) and (2) in accordance with section 4(b)(1) of the Inspector General Act of 1978 ([former] 5 U.S.C. App.) [see 5 U.S.C. 404(b)(1)].

"(C) Whenever information or assistance requested by the Committee or an Inspector General is unreasonably refused or not provided, the Committee shall immediately report the circumstances to the appropriate congressional committees.

"(D) The Committee shall leverage existing information technology resources within the Council, such as oversight.gov, to carry out the duties of the Committee.

"(4)(A) The Committee may hold public hearings and Committee personnel may conduct necessary inquiries.

"(B) The head of each agency shall make all officers and employees of that agency available to provide testimony to the Committee and Committee personnel.

"(C) The Committee may issue subpoenas to compel the testimony of persons who are not Federal officers or employees at such public hearings, which may be enforced in the same manner as provided for subpoenas under section 6 of the Inspector General Act of 1978 (5 U.S.C. App.).

"(5) The Committee may enter into contracts to enable the Committee to discharge its duties, including contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and make such payments as may be necessary to carry out the duties of the Committee.

"(6) The Committee may establish subcommittees to facilitate the ability of the Committee to discharge its duties.

"(7) The Committee may transfer funds appropriated to the Committee for expenses to support administrative support services and audits, reviews, or other activities related to oversight by the Committee of covered funds or the Coronavirus response to any Office of the Inspector General or the General Services Administration.

"(f)(1)(A)(i) Subject to subparagraph (B), the Committee may exercise the authorities of subsections (b) through (i) of section 3161 of title 5, United States Code (without regard to subsection (a) of that section) to carry out the functions of the Committee under this section.

"(ii) For purposes of exercising the authorities described under clause (i), the term 'Chairperson' shall be substituted for the term 'head of a temporary organization'.

"(iii) In exercising the authorities described in clause (i), the Chairperson shall consult with members of the Committee.

"(iv) In addition to the authority provided by section 3161(c) of title 5, United States Code, upon the request of an Inspector General, the Committee may detail, on a nonreimbursable basis, any personnel of the Council to that Inspector General to assist in carrying out any audit, review, or investigation pertaining to the oversight of covered funds or the Coronavirus response.

"(B) In exercising the employment authorities under section 3161(b) of title 5, United States Code, as provided under subparagraph (A) of this paragraph—

"(i) section 3161(b)(2) of that title (relating to periods of appointments) shall not apply; and

"(ii) no period of appointment may exceed the date on which the Committee terminates.

"(C)(i) A person employed by the Committee shall acquire competitive status for appointment to any position in the competitive service for which the employee possesses the required qualifications upon the completion of 2 years of continuous service as an employee under this subsection.

"(ii) No person who is first employed as described in clause (i) more than 2 years after the date of enactment of this Act may acquire competitive status under clause (i).

"(2)(A) The Committee may employ annuitants covered by section 9902(g) of title 5, United States Code, for purposes of the oversight of covered funds or the Coronavirus response.

"(B) The employment of annuitants under this paragraph shall be subject to the provisions of section 9902(g) of title 5, United States Code, as if the Committee was the Department of Defense.

"(3) Upon request of the Committee for information or assistance from any agency or other entity of the Federal Government, the head of such entity shall, insofar as is practicable and not in contravention of any existing law, and consistent with section 6 of the Inspector General Act of 1978 (5 U.S.C. App.), furnish such information or assistance to the Committee, or an authorized designee, including an Inspector General designated by the Chairperson.

"(4) Any Inspector General responsible for conducting oversight related to covered funds or the Coronavirus response may, consistent with the duties, responsibilities, policies, and procedures of the Inspector General, provide information requested by the Committee or an Inspector General on the Committee relating to the responsibilities of the Committee.

"(g)(1)(A) Not later than 30 days after the date of enactment of this Act, the Committee shall establish and maintain a user-friendly, public-facing website to foster greater accountability and transparency in the use of covered funds and the Coronavirus response, which shall have a uniform resource locator that is descriptive and memorable.

"(B) The Committee shall leverage existing information technology and resources, such as oversight.gov, to the greatest extent practicable to meet the requirements under this section.

"(2) The website established and maintained under paragraph (1) shall be a portal or gateway to key information relating to the oversight of covered funds and the Coronavirus response and provide connections to other Government websites with related information.

"(3) In establishing and maintaining the website under paragraph (1), the Committee shall ensure the following:

"(A) The website shall provide materials and information explaining the Coronavirus response and how covered funds are being used. The materials shall be easy to understand and regularly updated.

"(i) [sic; cls. (i) to (xiii) probably should be subpars. (B) to (N)] The website shall provide accountability information, including findings from Inspectors General, including any progress reports, audits, inspections, or other reports, including reports from or links to reports on the website of the Government Accountability Office.

"(ii) The website shall provide data on relevant operational, economic, financial, grant, subgrant, contract, and subcontract information in user-friendly visual presentations to enhance public awareness of the use of covered funds and the Coronavirus response.

"(iii) The website shall provide detailed data on any Federal Government awards that expend covered funds, including a unique trackable identification number for each project, information about the process that was used to award the covered funds, and for any covered funds over $150,000, a detailed explanation of any associated agreement, where applicable.

"(iv) The website shall include downloadable, machine-readable, open format reports on covered funds obligated by month to each State and congressional district, where applicable.

"(v) The website shall provide a means for the public to give feedback on the performance of any covered funds and of the Coronavirus response, including confidential feedback.

"(vi) The website shall include detailed information on Federal Government awards that expend covered funds, including data elements required under the Federal Funding Accountability and Transparency Act of 2006 [Pub. L. 109–282] (31 U.S.C. 6101 note), allowing aggregate reporting on awards below $50,000, as prescribed by the Director of the Office of Management and Budget.

"(vii) The website shall provide a link to estimates of the jobs sustained or created by this Act to the extent practicable.

"(viii) The website shall include appropriate links to other government websites with information concerning covered funds and the Coronavirus response, including Federal agency and State websites.

"(ix) The website shall include a plan from each Federal agency for using covered funds.

"(x) The website shall provide information on Federal allocations of mandatory and other entitlement programs by State, county, or other geographical unit related to covered funds or the Coronavirus response.

"(xi) The website shall present the data such that funds subawarded by recipients are not double counted in search results, data visualizations, or other reports.

"(xii) The website shall include all recommendations made to agencies relating to covered funds and the Coronavirus response, as well as the status of each recommendation.

"(xiii) The website shall be enhanced and updated as necessary to carry out the purposes of this section.

"(4) The Committee may exclude posting contractual or other information on the website on a case-by-case basis when necessary to protect national security or to protect information that is not subject to disclosure under sections 552 and 552a of title 5, United States Code.

"(h)(1) Nothing in this section shall affect the independent authority of an Inspector General to determine whether to conduct an audit or investigation of covered funds or the Coronavirus response.

"(2) If the Committee requests that an Inspector General of an agency conduct or refrain from conducting an audit or investigation and the Inspector General rejects the request in whole or in part, the Inspector General shall, not later than 30 days after rejecting the request, submit a report to the Committee, the head of the applicable agency, and the appropriate congressional committees, that states the reasons that the Inspector General has rejected the request in whole or in part.

"(i) The Committee shall coordinate its oversight activities with the Comptroller General of the United States and State auditors.

"(j) For the purposes of carrying out the mission of the Committee under this section, there are authorized to be appropriated such sums as may be necessary to carry out the duties and functions of the Committee.

"(k) The Committee shall terminate on September 30, 2025."

[For definition of "coronavirus" as used in section 15010 of Pub. L. 116–136, set out above, see section 23005 of Pub. L. 116–136, set out as a note under section 162b of Title 2, The Congress.]

Additional Oversight of Financial Regulatory System

Pub. L. 111–203, title IX, §989E, July 21, 2010, 124 Stat. 1946, provided that:

"(a) Council of Inspectors General on Financial Oversight.—

"(1) Establishment and membership.—There is established a Council of Inspectors General on Financial Oversight (in this section referred to as the 'Council of Inspectors General') chaired by the Inspector General of the Department of the Treasury and composed of the inspectors general of the following:

"(A) The Board of Governors of the Federal Reserve System.

"(B) The Commodity Futures Trading Commission.

"(C) The Department of Housing and Urban Development.

"(D) The Department of the Treasury.

"(E) The Federal Deposit Insurance Corporation.

"(F) The Federal Housing Finance Agency.

"(G) The National Credit Union Administration.

"(H) The Securities and Exchange Commission.

"(I) The Troubled Asset Relief Program (until the termination of the authority of the Special Inspector General for such program under section 121(k) of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5231(k))).

"(2) Duties.—

"(A) Meetings.—The Council of Inspectors General shall meet not less than once each quarter, or more frequently if the chair considers it appropriate, to facilitate the sharing of information among inspectors general and to discuss the ongoing work of each inspector general who is a member of the Council of Inspectors General, with a focus on concerns that may apply to the broader financial sector and ways to improve financial oversight.

"(B) Annual report.—Each year the Council of Inspectors General shall submit to the Council and to Congress a report including—

"(i) for each inspector general who is a member of the Council of Inspectors General, a section within the exclusive editorial control of such inspector general that highlights the concerns and recommendations of such inspector general in such inspector general's ongoing and completed work, with a focus on issues that may apply to the broader financial sector; and

"(ii) a summary of the general observations of the Council of Inspectors General based on the views expressed by each inspector general as required by clause (i), with a focus on measures that should be taken to improve financial oversight.

"(3) Working groups to evaluate council.—

"(A) Convening a working group.—The Council of Inspectors General may, by majority vote, convene a Council of Inspectors General Working Group to evaluate the effectiveness and internal operations of the Council.

"(B) Personnel and resources.—The inspectors general who are members of the Council of Inspectors General may detail staff and resources to a Council of Inspectors General Working Group established under this paragraph to enable it to carry out its duties.

"(C) Reports.—A Council of Inspectors General Working Group established under this paragraph shall submit regular reports to the Council and to Congress on its evaluations pursuant to this paragraph.

"(b) Response to Report by Council.—The Council shall respond to the concerns raised in the report of the Council of Inspectors General under subsection (a)(2)(B) for such year."

Special Inspectors General for Iraq and Afghanistan Reconstruction

Pub. L. 111–15, §7, Apr. 24, 2009, 123 Stat. 1605, as amended by Pub. L. 117–286, §4(b)(20), Dec. 27, 2022, 136 Stat. 4345, provided that: "The Special Inspector General for Iraq Reconstruction and the Special Inspector General for Afghanistan Reconstruction shall be a [sic] members of the Council of the Inspectors General on Integrity and Efficiency established under section 424 of title 5, United States Code, until the date of termination of the Office of the Special Inspector General for Iraq Reconstruction and the Office of the Special Inspector General for Afghanistan Reconstruction, respectively."

CHAPTER 5—ADMINISTRATIVE PROCEDURE

SUBCHAPTER I—GENERAL PROVISIONS

        

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE

        

        

SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE

        

SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS

        

SUBCHAPTER V—ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

        

Editorial Notes

Amendments

2004—Pub. L. 108–401, §2(b)(2), Oct. 30, 2004, 118 Stat. 2255, substituted "Purposes" for "Purpose" in item 591.

1996—Pub. L. 104–320, §§4(b)(2), 10(b), 11(b)(2), (d)(2), Oct. 19, 1996, 110 Stat. 3871, 3873, 3874, in item 569 substituted "Encouraging negotiated rulemaking" for "Role of the Administrative Conference of the United States and other entities", added items 570a and 584, and struck out item 582 "Compilation of information".

1992—Pub. L. 102–354, §4, Aug. 26, 1992, 106 Stat. 945, substituted headings of subchapters III, IV, and V and items 561 to 570, 571 to 583, and 591 to 596 for former heading of subchapter III and former items 571 to 576 relating to Administrative Conference of the United States, former heading of subchapter IV and former items 581 to 593 relating to alternative means of dispute resolution in the administrative process, and former heading of subchapter IV and former items 581 to 590 relating to negotiated rulemaking procedure.

1990—Pub. L. 101–648, §3(b), Nov. 29, 1990, 104 Stat. 4976, added heading of subchapter IV and items 581 to 590 relating to negotiated rulemaking procedure.

Pub. L. 101–552, §4(c), Nov. 15, 1990, 104 Stat. 2745, added heading of subchapter IV and items 581 to 593 [renumbered 571 to 583] relating to alternative means of dispute resolution.

1986—Pub. L. 99–470, §2(b), Oct. 14, 1986, 100 Stat. 1198, substituted "Authorization of appropriations" for "Appropriations" in item 576.

1985—Pub. L. 99–80, §6, Aug. 5, 1985, 99 Stat. 186, revived item 504 and repealed Pub. L. 96–481, title II, §203(c), Oct. 21, 1980, 94 Stat. 2327, which provided for the repeal, effective Oct. 1, 1984, of item 504.

1980—Pub. L. 96–481, title II, §203(a)(2), (c), Oct. 21, 1980, 94 Stat. 2327, added item 504 "Costs and fees of parties", and repealed that item effective Oct. 1, 1984.

1976—Pub. L. 94–409, §3(b), Sept. 13, 1976, 90 Stat. 1246, added item 552b.

1974—Pub. L. 93–579, §4, Dec. 31, 1974, 88 Stat. 1905, added item 552a.

1967—Pub. L. 90–83, §1(1)(B), Sept. 11, 1967, 81 Stat. 195, added item 500.

Pub. L. 90–23, §2, June 5, 1967, 81 Stat. 56, substituted "Public information; agency rules, opinions, orders, records and proceedings" for "Publication of information, rules, opinions, orders, and public records" in item 552.

¹ So in original. Does not conform to section catchline.

SUBCHAPTER I—GENERAL PROVISIONS

§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.

(Added Pub. L. 90–83, §1(1)(A), Sept. 11, 1967, 81 Stat. 195; amended Pub. L. 106–113, div. B, §1000(a)(9) [title IV, §4732(b)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A-583.)

Historical and Revision Notes

Section of title 5	Source (U.S. Code)	Source (Revised Statutes at Large)
500(a)	5 App.: 1014.	Nov. 8, 1965, Pub. L. 89–332, §3, 79 Stat. 1281.
500(b)–(e)	5 App.: 1012.	Nov. 8, 1965, Pub. L. 89–332, §1, 79 Stat. 1281.
500(f)	5 App.: 1013.	Nov. 8, 1965, Pub. L. 89–332, §2, 79 Stat. 1281.

The definition of "State" in subsection (a)(2) is supplied for convenience and is based on the words "State, possession, territory, Commonwealth, or District of Columbia" in subsections (a) and (b) of 5 App. U.S.C. 1012.

In subsection (d), the words "This section does not" are substituted for "nothing herein shall be construed".

In subsection (d)(3), the word "employee" is substituted for "officer or employee" to conform to the definition of "employee" in 5 U.S.C. 2105.

Editorial Notes

Amendments

1999—Subsec. (e). Pub. L. 106–113 substituted "United States Patent and Trademark Office" for "Patent Office".

Statutory Notes and Related Subsidiaries

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, §4731] of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 101.	Apr. 27, 1916, ch. 89, §1, 39 Stat. 54.

The words "may not" are substituted for "It shall be unlawful for". The words "agency of the United States" are substituted for "any department or office of the Government". The words "an individual in the service of the United States" are substituted for "officer of the Government" in view of the definitions in sections 2104 and 2105.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 30r(c) (2d sentence).	Aug. 10, 1956, ch. 1041, §29(c) (2d sentence), 70A Stat. 632.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 95.	R.S. §185.
	5 U.S.C. 95a.	Aug. 2, 1946, ch. 744, §10, 60 Stat. 809.

Former sections 95 and 95a are combined and restated for clarity and brevity. The words "or expenses in the case of Government officers and employees" are omitted as covered by section 1823 of title 28. The word "agency" is substituted for "department" and defined to conform to the definition of "department" in section 18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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 1986 (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 7103 of title 41 before an agency board of contract appeals as provided in section 7105 of title 41, (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.

(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)(1) Not later than March 31 of the first fiscal year beginning after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, and every fiscal year thereafter, the Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall submit to Congress and make publicly available online a report on the amount of fees and other expenses awarded during the preceding fiscal year under this section.

(2) Each report under paragraph (1) shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid Congress in evaluating the scope and impact of such awards.

(3)(A) Each report under paragraph (1) shall account for all payments of fees and other expenses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to a nondisclosure provision.

(B) The disclosure of fees and other expenses required under subparagraph (A) shall not affect any other information that is subject to a nondisclosure provision in a settlement agreement.

(f) As soon as practicable, and in any event not later than the date on which the first report under subsection (e)(1) is required to be submitted, the Chairman of the Administrative Conference of the United States shall create and maintain online a searchable database containing, with respect to each award of fees and other expenses under this section made on or after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, the following information:

(1) The case name and number of the adversary adjudication, if available, hyperlinked to the case, if available.

(2) The name of the agency involved in the adversary adjudication.

(3) A description of the claims in the adversary adjudication.

(4) The name of each party to whom the award was made as such party is identified in the order or other court document making the award.

(5) The amount of the award.

(6) The basis for the finding that the position of the agency concerned was not substantially justified.

(g) The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or a court order.

(h) The head of each agency shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all information requested by the Chairman to comply with the requirements of subsections (e), (f), and (g).

(i) 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.

(Added Pub. L. 96–481, title II, §203(a)(1), (c), Oct. 21, 1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99–80, §§1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99–509, title VI, §6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–647, title VI, §6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103–141, §4(b), Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104–121, title II, §231, Mar. 29, 1996, 110 Stat. 862; Pub. L. 111–350, §5(a)(1), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 116–9, title IV, §4201(a)(1), Mar. 12, 2019, 133 Stat. 762.)

Editorial Notes

References in Text

The Religious Freedom Restoration Act of 1993, referred to in subsec. (b)(1)(C)(iv), is Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to chapter 21B (§2000bb et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000bb of Title 42 and Tables.

The date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, referred to in subsecs. (e)(1) and (f), is the date of enactment of Pub. L. 116–9, which was approved Mar. 12, 2019.

Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (i), is classified to section 7430 of Title 26, Internal Revenue Code.

Amendments

2019—Subsec. (c)(1). Pub. L. 116–9, §4201(a)(1)(A), struck out ", United States Code" after "title 28".

Subsec. (e). Pub. L. 116–9, §4201(a)(1)(C), added subsec. (e) and struck out former subsec. (e) which read as follows: "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."

Subsecs. (f) to (i). Pub. L. 116–9, §4201(a)(1)(B), (C), added subsecs. (f) to (h) and redesignated former subsec. (f) as (i).

2011—Subsec. (b)(1)(C)(ii). Pub. L. 111–350 substituted "section 7103 of title 41" for "section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)" and "section 7105 of title 41" for "section 8 of that Act (41 U.S.C. 607)".

1996—Subsec. (a)(4). Pub. L. 104–121, §231(a), added par. (4).

Subsec. (b)(1)(A)(ii). Pub. L. 104–121, §231(b)(1), substituted "$125" for "$75".

Subsec. (b)(1)(B). Pub. L. 104–121, §231(b)(2), inserted before semicolon at end "or for purposes of subsection (a)(4), a small entity as defined in section 601".

Subsec. (b)(1)(F). Pub. L. 104–121, §231(b)(3)–(5), added subpar. (F).

1993—Subsec. (b)(1)(C). Pub. L. 103–141 added cl. (iv).

1988—Subsec. (f). Pub. L. 100–647 added subsec. (f).

1986—Subsec. (b)(1)(B). Pub. L. 99–514 substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954".

Subsec. (b)(1)(C)(iii). Pub. L. 99–509 added cl. (iii).

1985—Subsec. (a)(1). Pub. L. 99–80, §1(a)(1), (2), struck out "as a party to the proceeding" after "the position of the agency", and inserted "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."

Subsec. (a)(2). Pub. L. 99–80, §1(b), inserted "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."

Subsec. (a)(3). Pub. L. 99–80, §1(a)(3), inserted "The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section."

Subsec. (b)(1)(B). Pub. L. 99–80, §1(c)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: " 'party' means a party, as defined in section 551(3) of this title, which is an individual, partnership, corporation, association, or public or private organization other than an agency, but excludes (i) any individual whose net worth exceeded $1,000,000 at the time the adversary adjudication was initiated, and any sole owner of an unincorporated business, or any partnership, corporation, association, or organization whose net worth exceeded $5,000,000 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 the Code and 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, and (ii) any sole owner of an unincorporated business, or any partnership, corporation, association, or organization, having more than 500 employees at the time the adversary adjudication was initiated;".

Subsec. (b)(1)(C). Pub. L. 99–80, §1(c)(2), designated existing provisions of subpar. (C) as cl. (i) thereof by inserting "(i)" before "an adjudication under", added cl. (ii), and struck out "and" after the semicolon at the end.

Subsec. (b)(1)(D), (E). Pub. L. 99–80, §1(c)(3), substituted "; and" for the period at end of subpar. (D), and added subpar. (E).

Subsec. (c)(2). Pub. L. 99–80, §1(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "A party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. If the court denies the petition for leave to appeal, no appeal may be taken from the denial. If the court grants the petition, it may modify the determination only if it finds that the failure to make an award, or the calculation of the amount of the award, was an abuse of discretion."

Subsec. (d). Pub. L. 99–80, §1(e), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows:

"(1) Fees and other expenses awarded under this section may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made pursuant to section 2414 of title 28, United States Code.

"(2) There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses awarded under this section in such fiscal years."

1980—Pub. L. 96–481, §203(c), which provided for the repeal of this section effective Oct. 1, 1984, was itself repealed and this section was revived by section 6 of Pub. L. 99–80, set out as a note below.

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–121, title II, §233, Mar. 29, 1996, 110 Stat. 864, provided that: "The amendments made by sections 331 and 332 [probably means sections 231 and 232, amending this section and section 2412 of Title 28, Judiciary and Judicial Procedure] shall apply to civil actions and adversary adjudications commenced on or after the date of the enactment of this subtitle [Mar. 29, 1996]."

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–647 applicable to proceedings commencing after Nov. 10, 1988, see section 6239(d) of Pub. L. 100–647, set out as a note under section 7430 of Title 26, Internal Revenue Code.

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–509 effective Oct. 21, 1986, and applicable to any claim or statement made, presented or submitted on or after such date, see section 6104 of Pub. L. 99–509, set out as an Effective Date note under section 3801 of Title 31, Money and Finance.

Effective Date of 1985 Amendment

Pub. L. 99–80, §7, Aug. 5, 1985, 99 Stat. 186, provided that:

"(a) In General.—Except as otherwise provided in this section, the amendments made by this Act [reviving and amending this section and section 2412(d) of Title 28, Judiciary and Judicial Procedure, and amending and repealing provisions set out as notes under those sections] shall apply to cases pending on or commenced on or after the date of the enactment of this Act [Aug. 5, 1985].

"(b) Applicability of Amendments to Certain Prior Cases.—The amendments made by this Act shall apply to any case commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act [Aug. 5, 1985], except that in any such case, the 30-day period referred to in section 504(a)(2) of title 5, United States Code, or section 2412(d)(1)(B) of title 28, United States Code, as the case may be, shall be deemed to commence on the date of the enactment of this Act.

"(c) Applicability of Amendments to Prior Board of Contracts Appeals Cases.—Section 504(b)(1)(C)(ii) of title 5, United States Code, as added by section 1(c)(2) of this Act, and section 2412(d)(2)(E) of title 28, United States Code, as added by section 2(c)(2) of this Act, shall apply to any adversary adjudication pending on or commenced on or after October 1, 1981, in which applications for fees and other expenses were timely filed and were dismissed for lack of jurisdiction."

Effective Date

Pub. L. 96–481, title II, §208, Oct. 21, 1980, 94 Stat. 2330, as amended by Pub. L. 99–80, §5, Aug. 5, 1985, 99 Stat. 186, provided that: "This title and the amendments made by this title [see Short Title note below] shall take effect of [on] October 1, 1981, and shall apply to any adversary adjudication, as defined in section 504(b)(1)(C) of title 5, United States Code, and any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after, such date. Awards may be made for fees and other expenses incurred before October 1, 1981, in any such adversary adjudication or civil action."

Pub. L. 96–481, title II, §203(c), Oct. 21, 1980, 94 Stat. 2327, which provided that effective Oct. 1, 1984, this section is repealed, except that the provisions of this section shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was itself repealed by Pub. L. 99–80, §6(b)(1), Aug. 5, 1985, 99 Stat. 186.

Short Title

Pub. L. 96–481, title II, §201, Oct. 21, 1980, 94 Stat. 2325, provided that: "This title [enacting this section, amending section 634 of Title 15, Commerce and Trade, section 2412 of Title 28, Judiciary and Judicial Procedure, Rule 37 of the Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under this section and section 2412 of Title 28] may be cited as the 'Equal Access to Justice Act'."

Termination of Reporting Requirements

For termination, effective May 15, 2000, of provisions in subsec. (e) of this section relating to annual report to Congress on the amount of fees and other expenses, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 153 of House Document No. 103–7.

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title.

Prohibition on Use of Energy and Water Development Appropriations To Pay Intervening Parties in Regulatory or Adjudicatory Proceedings

Pub. L. 102–377, title V, §502, Oct. 2, 1992, 106 Stat. 1342, provided that: "None of the funds in this Act or subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts."

Revival of Previously Repealed Provisions

Pub. L. 99–80, §6, Aug. 5, 1985, 99 Stat. 186, provided that:

"(a) Revival of Certain Expired Provisions.—Section 504 of title 5, United States Code, and the item relating to that section in the table of sections of chapter 5 of title 5, United States Code, and subsection (d) of section 2412 of title 28, United States Code, shall be effective on or after the date of the enactment of this Act [Aug. 5, 1985] as if they had not been repealed by sections 203(c) and 204(c) of the Equal Access to Justice Act [Pub. L. 96–481].

"(b) Repeals.—

"(1) Section 203(c) of the Equal Access to Justice Act [which repealed this section] is hereby repealed.

"(2) Section 204(c) of the Equal Access to Justice Act [which repealed section 2412(d) of title 28] is hereby repealed."

Congressional Findings and Purposes

Pub. L. 96–481, title II, §202, Oct. 21, 1980, 94 Stat. 2325, provided that:

"(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.

"(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.

"(c) It is the purpose of this title [see Short Title note above]—

"(1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and

"(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the 'American rule' respecting the award of attorney fees."

Limitation on Payments

Pub. L. 96–481, title II, §207, Oct. 21, 1980, 94 Stat. 2330, which provided that the payment of judgments, fees and other expenses in the same manner as the payment of final judgments as provided in this Act [probably should be "this title", see Short Title note above] would be effective only to the extent and in such amounts as are provided in advance in appropriation Acts, was repealed by Pub. L. 99–80, §4, Aug. 5, 1985, 99 Stat. 186.

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE

Statutory Notes and Related Subsidiaries

Short Title

The provisions of this subchapter and chapter 7 of this title were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the "Administrative Procedure Act". That Act was repealed as part of the general revision of this title by Pub. L. 89–554 and its provisions incorporated into this subchapter and chapter 7 hereof.

§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; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; ¹

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94–409, §4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103–272, §5(a), July 5, 1994, 108 Stat. 1373; Pub. L. 111–350, §5(a)(2), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(1)	5 U.S.C. 1001(a).	June 11, 1946, ch. 324, §2(a), 60 Stat. 237.
		Aug. 8, 1946, ch. 870, §302, 60 Stat. 918.
		Aug. 10, 1946, ch. 951, §601, 60 Stat. 993.
		Mar. 31, 1947, ch. 30, §6(a), 61 Stat. 37.
		June 30, 1947, ch. 163, §210, 61 Stat. 201.
		Mar. 30, 1948, ch. 161, §301, 62 Stat. 99.
(2)–(13)	5 U.S.C. 1001 (less (a)).	June 11, 1946, ch. 324, §2 (less (a)), 60 Stat. 237.

In paragraph (1), the sentence "Nothing in this Act shall be construed to repeal delegations of authority as provided by law," is omitted as surplusage since there is nothing in the Act which could reasonably be so construed.

In paragraph (1)(G), the words "or naval" are omitted as included in "military".

In paragraph (1)(H), the words "functions which by law expire on the termination of present hostilities, within any fixed period thereafter, or before July 1, 1947" are omitted as executed. Reference to the "Selective Training and Service Act of 1940" is omitted as that Act expired Mar. 31, 1947. Reference to the "Sugar Control Extension Act of 1947" is omitted as that Act expired on Mar. 31, 1948. References to the "Housing and Rent Act of 1947, as amended" and the "Veterans' Emergency Housing Act of 1946" have been consolidated as they are related. The reference to former section 1641(b)(2) of title 50, appendix, is retained notwithstanding its repeal by §111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–256, 75 Stat. 538, since §111(c) of the Act provides that a reference in other Acts to a provision of law repealed by §111(a) shall be considered to be a reference to the appropriate provisions of Pub. L. 87–256.

In paragraph (2), the words "of any character" are omitted as surplusage.

In paragraph (3), the words "and a person or agency admitted by an agency as a party for limited purposes" are substituted for "but nothing herein shall be construed to prevent an agency from admitting any person or agency as a party for limited purposes".

In paragraph (9), a comma is supplied between the words "limitation" and "amendment" to correct an editorial error of omission.

In paragraph (10)(C), the words "of any form" are omitted as surplusage.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Sections 1884 and 1891–1902 of title 50, appendix, referred to in par. (1)(H), were a part of the various Housing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to Title 50, War and National Defense, and had been repealed or omitted from the Code as executed prior to the elimination of the Appendix to Title 50. See Elimination of Title 50, Appendix note preceding section 1 of Title 50. Section 1641 of title 50, appendix, referred to in par. (1)(H), was repealed by Pub. L. 87–256, §111(a)(1), Sept. 21, 1961, 75 Stat. 538. See Historical and Revision Note above.

Codification

Section 551 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2242 of Title 7, Agriculture.

Amendments

2011—Par. (1)(H). Pub. L. 111–350 struck out "chapter 2 of title 41;" after "title 12;".

1994—Par. (1)(H). Pub. L. 103–272 substituted "subchapter II of chapter 471 of title 49; or sections" for "or sections 1622,".

1976—Par. (14). Pub. L. 94–409 added par. (14).

Statutory Notes and Related Subsidiaries

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

Statutory Administrative Pay-As-You-Go

Pub. L. 118–5, div. B, title III, June 3, 2023, 137 Stat. 31, provided that:

"SEC. 261. SHORT TITLE.

"This title may be cited as the 'Administrative Pay-As-You-Go Act of 2023'.

"SEC. 262. DEFINITIONS.

"In this title—

"(1) the term 'administrative action' means a 'rule' as defined in section 804(3) of title 5, United States Code;

"(2) the term 'agency' means any authority of the United States that is an 'agency' under section 3502(1) of title 44, United States Code, other than those considered to be independent regulatory agencies, as defined in section 3502(5) of such title;

"(3) the term 'covered discretionary administrative action' means a discretionary administrative action that would affect direct spending;

"(4) the term 'direct spending' has the meaning given that term in section 250(c) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c));

"(5) the term 'Director' means the Director of the Office of Management and Budget;

"(6) the term 'discretionary administrative action'—

"(A) means any administrative action that is not required by law; and

"(B) includes an administrative action required by law for which an agency has discretion in the manner in which to implement the administrative action; and

"(7) the term 'increase direct spending' means that the amount of direct spending would increase relative to—

"(A) the most recently submitted projection of the amount of direct spending presented in baseline estimates as defined in section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985 [2 U.S.C. 907], as amended, under—

"(i) the budget of the President submitted under section 1105 of title 31, United States Code; or

"(ii) the supplemental summary of the budget submitted under section 1106 of title 31, United States Code;

"(B) with respect to a discretionary administrative action that is incorporated into the applicable projection described in subparagraph (A) and for which a proposal has not been submitted under section 263(a)(2)(A), a projection of the amount of direct spending if no administrative action were taken; or

"(C) with respect to a discretionary administrative action described in paragraph (6)(B), a projection of the amount of direct spending under the least costly implementation option reasonably identifiable by the agency that meets the requirements under the statute.

"SEC. 263. REQUIREMENTS FOR ADMINISTRATIVE ACTIONS THAT AFFECT DIRECT SPENDING.

"(a) Discretionary Administrative Actions.—

"(1) In general.—Before an agency may finalize any covered discretionary administrative action, the head of the agency shall submit to the Director for review written notice regarding the covered discretionary administrative action, which shall include an estimate of the budgetary effects of the covered discretionary administrative action.

"(2) Increasing direct spending.—

"(A) In general.—If the covered discretionary administrative action would increase direct spending, the written notice submitted by the head of the agency under paragraph (1) shall include a proposal to undertake 1 or more other administrative actions that would provide a reduction in direct spending greater than or equal to the increase in direct spending attributable to the covered discretionary administrative action.

"(B) Review.—

"(i) In general.—The Director shall determine whether the reduction in direct spending in a proposal in a written notice from an agency under subparagraph (A) is greater than or equal to the increase in direct spending attributable to the covered discretionary administrative action to which the written notice relates.

"(ii) No offset.—If the written notice regarding a proposed covered discretionary administrative action that would increase direct spending does not include a proposal to offset the increased direct spending as determined in clause (i), the Director shall return the written notice to the agency for resubmission in accordance with this title.

"(b) Nondiscretionary Actions.—If an agency determines that an administrative action that would increase direct spending is required by law and therefore is not a covered discretionary administrative action, before the agency finalizes that administrative action, the head of the agency shall—

"(1) submit to the Director a written opinion by the general counsel of the agency, or the equivalent employee of the agency, explaining that legal conclusion;

"(2) submit to the Director a projection of the amount of direct spending under the least costly implementation option reasonably identifiable by the agency that meets the requirements under the statute; and

"(3) consult with the Director regarding implementation of the administrative action.

"(c) Projections.—Any projection for purposes of this title shall be conducted in accordance with Office of Management and Budget Circular A–11, or any successor thereto.

"SEC. 264. ISSUANCE OF ADMINISTRATIVE GUIDANCE.

"Not later than 90 days after the date of enactment of this Act [June 3, 2023], the Director shall issue instructions regarding the implementation of this title, including how covered discretionary administrative actions that increase direct spending and nontax receipts will be evaluated.

"SEC. 265. WAIVER.

"(a) In General.—The Director may waive the requirements of section 263 if the Director concludes that the waiver—

"(1) is necessary for the delivery of essential services; or

"(2) is necessary for effective program delivery.

"(b) Publication.—Any waiver determination under subsection (a) shall be published in the Federal Register.

"SEC. 266. EXEMPTION.

"This title shall not apply to administrative actions with direct spending cost of less than—

"(1) $1,000,000,000 over the 10-year period beginning with the current year; or

"(2) $100,000,000 in any given year during such 10-year period.

"SEC. 267. JUDICIAL REVIEW.

"No determination, finding, action, or omission under this title shall be subject to judicial review.

"SEC. 268. SUNSET.

"This title shall expire on December 31, 2024.

"SEC. 269. GAO REPORT.

"Within 180 days of the date of enactment of this Act [June 3, 2023], the Comptroller General shall issue a report on the implementation of this title.

"SEC. 270. CONGRESSIONAL REVIEW ACT COMPLIANCE ASSESSMENT.

[Amended section 801 of this title.]"

Study and Reports on Administrative Subpoenas

Pub. L. 106–544, §7, Dec. 19, 2000, 114 Stat. 2719, provided that:

"(a) Study on Use of Administrative Subpoenas.—Not later than December 31, 2001, the Attorney General, in consultation with the Secretary of the Treasury, shall complete a study on the use of administrative subpoena power by executive branch agencies or entities and shall report the findings to the Committees on the Judiciary of the Senate and the House of Representatives. Such report shall include—

"(1) a description of the sources of administrative subpoena power and the scope of such subpoena power within executive branch agencies;

"(2) a description of applicable subpoena enforcement mechanisms;

"(3) a description of any notification provisions and any other provisions relating to safeguarding privacy interests;

"(4) a description of the standards governing the issuance of administrative subpoenas; and

"(5) recommendations from the Attorney General regarding necessary steps to ensure that administrative subpoena power is used and enforced consistently and fairly by executive branch agencies.

"(b) Report on Frequency of Use of Administrative Subpoenas.—

"(1) In general.—The Attorney General and the Secretary of the Treasury shall report in January of each year to the Committees on the Judiciary of the Senate and the House of Representatives on the number of administrative subpoenas issued by them under this section and the identity of the agency or component of the Department of Justice or the Department of the Treasury issuing the subpoena and imposing the charges.

"(2) Expiration.—The reporting requirement of this subsection shall terminate in 3 years after the date of the enactment of this section [Dec. 19, 2000]."

Executive Documents

Executive Order No. 13892

Ex. Ord. No. 13892, Oct. 9, 2019, 84 F.R. 55239, which related to civil administrative enforcement and adjudication, was revoked by Ex. Ord. No. 13992, §2, Jan. 20, 2021, 86 F.R. 7049, set out below.

Executive Order No. 13979

Ex. Ord. No. 13979, Jan. 18, 2021, 86 F.R. 6813, which required senior appointee participation in agency rulemaking, was revoked by Ex. Ord. No. 14018, §1, Feb. 24, 2021, 86 F.R. 11855.

Ex. Ord. No. 13992. Revocation of Certain Executive Orders Concerning Federal Regulation

Ex. Ord. No. 13992, Jan. 20, 2021, 86 F.R. 7049, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered that:

Section 1. Policy. It is the policy of my Administration to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID–19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government's ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals.

Sec. 2. Revocation of Orders. Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs) [former 5 U.S.C. 601 note], Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda) [former 5 U.S.C. 601 note], Executive Order 13875 of June 14, 2019 (Evaluating and Improving the Utility of Federal Advisory Committees) [former 5 U.S.C. App. note], Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents) [former 5 U.S.C. 601 note], Executive Order 13892 of October 9, 2019 (Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication) [formerly set out above], and Executive Order 13893 of October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO) [former 5 U.S.C. 601 note], are hereby revoked.

Sec. 3. Implementation. The Director of the Office of Management and Budget and the heads of agencies shall promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the Executive Orders identified in section 2 of this order, as appropriate and consistent with applicable law, including the Administrative Procedure Act, 5 U.S.C. 551 et seq. If in any case such rescission cannot be finalized immediately, the Director and the heads of agencies shall promptly take steps to provide all available exemptions authorized by any such orders, rules, regulations, guidelines, or policies, as appropriate and consistent with applicable law. In addition, any personnel positions, committees, task forces, or other entities established pursuant to the Executive Orders identified in section 2 of this order, including the regulatory reform officer positions and regulatory reform task forces established by sections 2 and 3 of Executive Order 13777 [former 5 U.S.C. 601 note], shall be abolished, as appropriate and consistent with applicable law.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

¹ See References in Text note below.

§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 in an electronic format—

(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—

(i) that have been released to any person under paragraph (3); and

(ii)(I) that 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; or

(II) that have been requested 3 or more times; 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 in an electronic format 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, and except as provided in subparagraph (E), 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.

(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) ¹ shall not make any record available under this paragraph to—

(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or

(ii) a representative of a government entity described in clause (i).

(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.

In this clause, the term "a representative of the news media" means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term "news" means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of "news") who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.

(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.

(viii)(I) Except as provided in subclause (II), an agency shall not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) under this subparagraph if the agency has failed to comply with any time limit under paragraph (6).

(II)(aa) If an agency has determined that unusual circumstances apply (as the term is defined in paragraph (6)(B)) and the agency provided a timely written notice to the requester in accordance with paragraph (6)(B), a failure described in subclause (I) is excused for an additional 10 days. If the agency fails to comply with the extended time limit, the agency may not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees).

(bb) If an agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, an agency may charge search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) if the agency has provided a timely written notice to the requester in accordance with paragraph (6)(B) and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with paragraph (6)(B)(ii).

(cc) If a court has determined that exceptional circumstances exist (as that term is defined in paragraph (6)(C)), a failure described in subclause (I) shall be excused for the length of time provided by the court order.

(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. Pub. L. 98–620, title IV, §402(2), Nov. 8, 1984, 98 Stat. 3357.]

(E)(i) 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.

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—

(I) a judicial order, or an enforceable written agreement or consent decree; or

(II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.

(F)(i) 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.

(ii) The Attorney General shall—

(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and

(II) annually submit a report to Congress on the number of such civil actions in the preceding year.

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i).

(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—

(I) such determination and the reasons therefor;

(II) the right of such person to seek assistance from the FOIA Public Liaison of the agency; and

(III) in the case of an adverse determination—

(aa) the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and

(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; 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.

The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except—

(I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; or

(II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period.

(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. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. 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.

(7) Each agency shall—

(A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and

(B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including—

(i) the date on which the agency originally received the request; and

(ii) an estimated date on which the agency will complete action on the request.

(8)(A) An agency shall—

(i) withhold information under this section only if—

(I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or

(II) disclosure is prohibited by law; and

(ii)(I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and

(II) take reasonable steps necessary to segregate and release nonexempt information; and

(B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).

(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), if that statute—

(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

(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 that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;

(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, and the exemption under which the deletion is made, 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, and the exemption under which the deletion is made, 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 and to the Director of the Office of Government Information Services 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), the number of occasions on which each statute was relied upon, 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 and average 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, based on the date on which the requests were received by the agency;

(F) the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests;

(G) based on the number of business days that have elapsed since each request was originally received by the agency—

(i) the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days;

(ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days;

(iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and

(iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days;

(H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;

(I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal;

(J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency;

(K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency;

(L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days;

(M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations;

(N) the total amount of fees collected by the agency for processing requests;

(O) 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;

(P) the number of times the agency denied a request for records under subsection (c); and

(Q) the number of records that were made available for public inspection in an electronic format under subsection (a)(2).

(2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall.

(3) Each agency shall make each such report available for public inspection in an electronic format. In addition, each agency shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be made available—

(A) without charge, license, or registration requirement;

(B) in an aggregated, searchable format; and

(C) in a format that may be downloaded in bulk.

(4) 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 Oversight and Government Reform of the House of Representatives and the Chairman and ranking minority member of the Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate, no later than March 1 of the year in which each such report is issued, that such reports are available by electronic means.

(5) 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.

(6)(A) The Attorney General of the United States shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President a report on or before March 1 of each calendar year, which shall include for the prior calendar year—

(i) a listing of the number of cases arising under this section;

(ii) a listing of—

(I) each subsection, and any exemption, if applicable, involved in each case arising under this section;

(II) the disposition of each case arising under this section; and

(III) the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and

(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.

(B) The Attorney General of the United States shall make—

(i) each report submitted under subparagraph (A) available for public inspection in an electronic format; and

(ii) the raw statistical data used in each report submitted under subparagraph (A) available for public inspection in an electronic format, which shall be made available—

(I) without charge, license, or registration requirement;

(II) in an aggregated, searchable format; and

(III) in a format that may be downloaded in bulk.

(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—

(A) 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; and

(B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.

(g) The head of each agency shall prepare and make available for public inspection in an electronic format, 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.

(h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration. The head of the Office shall be the Director of the Office of Government Information Services.

(2) The Office of Government Information Services shall—

(A) review policies and procedures of administrative agencies under this section;

(B) review compliance with this section by administrative agencies; and

(C) identify procedures and methods for improving compliance under this section.

(3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to a dispute.

(4)(A) Not less frequently than annually, the Director of the Office of Government Information Services shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President—

(i) a report on the findings of the information reviewed and identified under paragraph (2);

(ii) a summary of the activities of the Office of Government Information Services under paragraph (3), including—

(I) any advisory opinions issued; and

(II) the number of times each agency engaged in dispute resolution with the assistance of the Office of Government Information Services or the FOIA Public Liaison; and

(iii) legislative and regulatory recommendations, if any, to improve the administration of this section.

(B) The Director of the Office of Government Information Services shall make each report submitted under subparagraph (A) available for public inspection in an electronic format.

(C) The Director of the Office of Government Information Services shall not be required to obtain the prior approval, comment, or review of any officer or agency of the United States, including the Department of Justice, the Archivist of the United States, or the Office of Management and Budget before submitting to Congress, or any committee or subcommittee thereof, any reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed therein are those of the Director and do not necessarily represent the views of the President.

(5) The Director of the Office of Government Information Services may directly submit additional information to Congress and the President as the Director determines to be appropriate.

(6) Not less frequently than annually, the Office of Government Information Services shall conduct a meeting that is open to the public on the review and reports by the Office and shall allow interested persons to appear and present oral or written statements at the meeting.

(i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits.

(j)(1) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).

(2) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency—

(A) have agency-wide responsibility for efficient and appropriate compliance with this section;

(B) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing this section;

(C) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section;

(D) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing this section;

(E) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency's handbook issued under subsection (g), and the agency's annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply;

(F) offer training to agency staff regarding their responsibilities under this section;

(G) serve as the primary agency liaison with the Office of Government Information Services and the Office of Information Policy; and

(H) designate 1 or more FOIA Public Liaisons.

(3) The Chief FOIA Officer of each agency shall review, not less frequently than annually, all aspects of the administration of this section by the agency to ensure compliance with the requirements of this section, including—

(A) agency regulations;

(B) disclosure of records required under paragraphs (2) and (8) of subsection (a);

(C) assessment of fees and determination of eligibility for fee waivers;

(D) the timely processing of requests for information under this section;

(E) the use of exemptions under subsection (b); and

(F) dispute resolution services with the assistance of the Office of Government Information Services or the FOIA Public Liaison.

(k)(1) There is established in the executive branch the Chief FOIA Officers Council (referred to in this subsection as the "Council").

(2) The Council shall be comprised of the following members:

(A) The Deputy Director for Management of the Office of Management and Budget.

(B) The Director of the Office of Information Policy at the Department of Justice.

(C) The Director of the Office of Government Information Services.

(D) The Chief FOIA Officer of each agency.

(E) Any other officer or employee of the United States as designated by the Co-Chairs.

(3) The Director of the Office of Information Policy at the Department of Justice and the Director of the Office of Government Information Services shall be the Co-Chairs of the Council.

(4) The Administrator of General Services shall provide administrative and other support for the Council.

(5)(A) The duties of the Council shall include the following:

(i) Develop recommendations for increasing compliance and efficiency under this section.

(ii) Disseminate information about agency experiences, ideas, best practices, and innovative approaches related to this section.

(iii) Identify, develop, and coordinate initiatives to increase transparency and compliance with this section.

(iv) Promote the development and use of common performance measures for agency compliance with this section.

(B) In performing the duties described in subparagraph (A), the Council shall consult on a regular basis with members of the public who make requests under this section.

(6)(A) The Council shall meet regularly and such meetings shall be open to the public unless the Council determines to close the meeting for reasons of national security or to discuss information exempt under subsection (b).

(B) Not less frequently than annually, the Council shall hold a meeting that shall be open to the public and permit interested persons to appear and present oral and written statements to the Council.

(C) Not later than 10 business days before a meeting of the Council, notice of such meeting shall be published in the Federal Register.

(D) Except as provided in subsection (b), the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by the Council shall be made publicly available.

(E) Detailed minutes of each meeting of the Council shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the Council. The minutes shall be redacted as necessary and made publicly available.

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.

(m)(1) The Director of the Office of Management and Budget, in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency from a single website. The portal may include any additional tools the Director of the Office of Management and Budget finds will improve the implementation of this section.

(2) This subsection shall not be construed to alter the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. The Director of the Office of Management and Budget shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90–23, §1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502, §§1–3, Nov. 21, 1974, 88 Stat. 1561–1564; Pub. L. 94–409, §5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–454, title IX, §906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98–620, title IV, §402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99–570, title I, §§1802, 1803, Oct. 27, 1986, 100 Stat. 3207–48, 3207-49; Pub. L. 104–231, §§3–11, Oct. 2, 1996, 110 Stat. 3049–3054; Pub. L. 107–306, title III, §312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110–175, §§3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8–10(a), 12, Dec. 31, 2007, 121 Stat. 2525–2530; Pub. L. 111–83, title V, §564(b), Oct. 28, 2009, 123 Stat. 2184; Pub. L. 114–185, §2, June 30, 2016, 130 Stat. 538.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1002.	June 11, 1946, ch. 324, §3, 60 Stat. 238.

In subsection (b)(3), the words "formulated and" are omitted as surplusage. In the last sentence of subsection (b), the words "in any manner" are omitted as surplusage since the prohibition is all inclusive.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section 1 [of Pub. L. 90–23] amends section 552 of title 5, United States Code, to reflect Public Law 89–487.

In subsection (a)(1)(A), the words "employees (and in the case of a uniformed service, the member)" are substituted for "officer" to retain the coverage of Public Law 89–487 and to conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.

In the last sentence of subsection (a)(2), the words "A final order * * * may be relied on * * * only if" are substituted for "No final order * * * may be relied upon * * * unless"; and the words "a party other than an agency" and "the party" are substituted for "a private party" and "the private party", respectively, on authority of the definition of "private party" in 5 App. U.S.C. 1002(g).

In subsection (a)(3), the words "the responsible employee, and in the case of a uniformed service, the responsible member" are substituted for "the responsible officers" to retain the coverage of Public Law 89–487 and to conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.

In subsection (a)(4), the words "shall maintain and make available for public inspection a record" are substituted for "shall keep a record * * * and that record shall be available for public inspection".

In subsection (b)(5) and (7), the words "a party other than an agency" are substituted for "a private party" on authority of the definition of "private party" in 5 App. U.S.C. 1002(g).

In subsection (c), the words "This section does not authorize" and "This section is not authority" are substituted for "Nothing in this section authorizes" and "nor shall this section be authority", respectively.

5 App. U.S.C. 1002(g), defining "private party" to mean a party other than an agency, is omitted since the words "party other than an agency" are substituted for the words "private party" wherever they appear in revised 5 U.S.C. 552.

5 App. U.S.C. 1002(h), prescribing the effective date, is omitted as unnecessary. That effective date is prescribed by section 4 of this bill.

Editorial Notes

References in Text

The National Security Act of 1947, referred to in subsec. (a)(3)(E), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§3001 et seq.) of Title 50. Section 3 of the Act is now classified to section 3003 of Title 50. For complete classification of this Act to the Code, see Tables.

The date of enactment of the OPEN FOIA Act of 2009, referred to in subsec. (b)(3)(B), is the date of enactment of Pub. L. 111–83, which was approved Oct. 28, 2009.

Codification

Section 552 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2243 of Title 7, Agriculture.

Amendments

2016—Subsec. (a)(2). Pub. L. 114–185, §2(1)(A)(i), in introductory provisions, substituted "for public inspection in an electronic format" for "for public inspection and copying".

Pub. L. 114–185, §2(1)(A)(iii), in concluding provisions, substituted "public inspection in an electronic format current" for "public inspection and copying current".

Subsec. (a)(2)(D). Pub. L. 114–185, §2(1)(A)(ii), added subpar. (D) and struck out former subpar. (D) which read as follows: "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".

Subsec. (a)(4)(A)(viii). Pub. L. 114–185, §2(1)(B), added cl. (viii) and struck out former cl. (viii) which read as follows: "An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request."

Subsec. (a)(6)(A)(i). Pub. L. 114–185, §2(1)(C)(i), substituted "making such request of—" for "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" and added subcls. (I) to (III).

Subsec. (a)(6)(B)(ii). Pub. L. 114–185, §2(1)(C)(ii), substituted "the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services." for "the agency."

Subsec. (a)(8). Pub. L. 114–185, §2(1)(D), added par. (8).

Subsec. (b)(5). Pub. L. 114–185, §2(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "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;".

Subsec. (e)(1). Pub. L. 114–185, §2(3)(A)(i), in introductory provisions, inserted "and to the Director of the Office of Government Information Services" after "United States".

Subsec. (e)(1)(P), (Q). Pub. L. 114–185, §2(3)(A)(ii)–(iv), added subpars. (P) and (Q).

Subsec. (e)(3). Pub. L. 114–185, §2(3)(B), added par. (3) and struck out former par. (3) which read as follows: "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. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request."

Subsec. (e)(4). Pub. L. 114–185, §2(3)(C), substituted "Oversight and Government Reform" for "Government Reform and Oversight" and "March" for "April" and inserted "Homeland Security and" before "Governmental Affairs".

Subsec. (e)(6). Pub. L. 114–185, §2(3)(D), added par. (6) and struck out former par. (6) which read as follows: "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."

Subsec. (g). Pub. L. 114–185, §2(4), in introductory provisions, substituted "available for public inspection in an electronic format" for "publicly available upon request".

Subsec. (h)(1). Pub. L. 114–185, §2(5)(A), inserted at end "The head of the Office shall be the Director of the Office of Government Information Services."

Subsec. (h)(2)(C). Pub. L. 114–185, §2(5)(B), added subpar. (C) and struck out former subpar. (C) which read as follows: "recommend policy changes to Congress and the President to improve the administration of this section."

Subsec. (h)(3). Pub. L. 114–185, §2(5)(C), added par. (3) and struck out former par. (3) which read as follows: "The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute."

Subsec. (h)(4) to (6). Pub. L. 114–185, §2(5)(D), added pars. (4) to (6).

Subsec. (j). Pub. L. 114–185, §2(6), added subsec. (j) and struck out former subsec. (j) which read as follows: "Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level)."

Subsec. (k). Pub. L. 114–185, §2(6), added subsec. (k) and struck out former subsec. (k) which related to authority and responsibilities of the Chief FOIA Officer.

Subsec. (m). Pub. L. 114–185, §2(7), added subsec. (m).

2009—Subsec. (b)(3). Pub. L. 111–83 added par. (3) and struck out former par. (3) which read as follows: "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;".

2007—Subsec. (a)(4)(A)(ii). Pub. L. 110–175, §3, inserted concluding provisions.

Subsec. (a)(4)(A)(viii). Pub. L. 110–175, §6(b)(1)(A), added cl. (viii).

Subsec. (a)(4)(E). Pub. L. 110–175, §4(a), designated existing provisions as cl. (i) and added cl. (ii).

Subsec. (a)(4)(F). Pub. L. 110–175, §5, designated existing provisions as cl. (i) and added cls. (ii) and (iii).

Subsec. (a)(6)(A). Pub. L. 110–175, §6(a)(1), inserted concluding provisions.

Subsec. (a)(6)(B)(ii). Pub. L. 110–175, §6(b)(1)(B), inserted after the first sentence "To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency."

Subsec. (a)(7). Pub. L. 110–175, §7(a), added par. (7).

Subsec. (b). Pub. L. 110–175, §12, in concluding provisions, inserted ", and the exemption under which the deletion is made," after "The amount of information deleted" in second sentence and after "the amount of the information deleted" in third sentence.

Subsec. (e)(1)(B)(ii). Pub. L. 110–175, §8(a)(1), inserted "the number of occasions on which each statute was relied upon," after "subsection (b)(3),".

Subsec. (e)(1)(C). Pub. L. 110–175, §8(a)(2), inserted "and average" after "median".

Subsec. (e)(1)(E). Pub. L. 110–175, §8(a)(3), inserted before semicolon ", based on the date on which the requests were received by the agency".

Subsec. (e)(1)(F) to (O). Pub. L. 110–175, §8(a)(4), (5), added subpars. (F) to (M) and redesignated former subpars. (F) and (G) as (N) and (O), respectively.

Subsec. (e)(2). Pub. L. 110–175, §8(b)(2), added par. (2). Former par. (2) redesignated (3).

Subsec. (e)(3). Pub. L. 110–175, §8(b)(1), (c), redesignated par. (2) as (3) and inserted at end "In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request." Former par. (3) redesignated (4).

Subsec. (e)(4) to (6). Pub. L. 110–175, §8(b)(1), redesignated pars. (3) to (5) as (4) to (6), respectively.

Subsec. (f)(2). Pub. L. 110–175, §9, added par. (2) and struck out former par. (2) which read as follows: " '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."

Subsecs. (h) to (l). Pub. L. 110–175, §10(a), added subsecs. (h) to (l).

2002—Subsec. (a)(3)(A). Pub. L. 107–306, §312(1), inserted "and except as provided in subparagraph (E)," after "of this subsection,".

Subsec. (a)(3)(E). Pub. L. 107–306, §312(2), added subpar. (E).

1996—Subsec. (a)(2). Pub. L. 104–231, §4(4), (5), in first sentence struck out "and" at end of subpar. (B) and inserted subpars. (D) and (E).

Pub. L. 104–231, §4(7), inserted after first sentence "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."

Pub. L. 104–231, §4(1), in second sentence substituted "staff manual, instruction, or copies of records referred to in subparagraph (D)" for "or staff manual or instruction".

Pub. L. 104–231, §4(2), inserted before period at end of third sentence ", 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".

Pub. L. 104–231, §4(3), inserted after third sentence "If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made."

Pub. L. 104–231, §4(6), which directed the insertion of the following new sentence after the fifth sentence "Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.", was executed by making the insertion after the sixth sentence, to reflect the probable intent of Congress and the addition of a new sentence by section 4(3) of Pub. L. 104–231.

Subsec. (a)(3). Pub. L. 104–231, §5, inserted subpar. (A) designation after "(3)", redesignated subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpars. (B) to (D).

Subsec. (a)(4)(B). Pub. L. 104–231, §6, inserted at end "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)."

Subsec. (a)(6)(A)(i). Pub. L. 104–231, §8(b), substituted "20 days" for "ten days".

Subsec. (a)(6)(B). Pub. L. 104–231, §7(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "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 reasons 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. As used in this subparagraph, 'unusual circumstances' means, but only to the extent reasonably necessary to the proper processing of the particular request—

"(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."

Subsec. (a)(6)(C). Pub. L. 104–231, §7(c), designated existing provisions as cl. (i) and added cls. (ii) and (iii).

Subsec. (a)(6)(D). Pub. L. 104–231, §7(a), added subpar. (D).

Subsec. (a)(6)(E), (F). Pub. L. 104–231, §8(a), (c), added subpars. (E) and (F).

Subsec. (b). Pub. L. 104–231, §9, inserted at end of closing provisions "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."

Subsec. (e). Pub. L. 104–231, §10, amended subsec. (e) generally, revising and restating provisions relating to reports to Congress.

Subsec. (f). Pub. L. 104–231, §3, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: "For purposes of this section, the term '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."

Subsec. (g). Pub. L. 104–231, §11, added subsec. (g).

1986—Subsec. (a)(4)(A). Pub. L. 99–570, §1803, amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to all constituent units of such agency. Such fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public."

Subsec. (b)(7). Pub. L. 99–570, §1802(a), amended par. (7) generally. Prior to amendment, par. (7) read as follows: "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records 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;".

Subsecs. (c) to (f). Pub. L. 99–570, §1802(b), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.

1984—Subsec. (a)(4)(D). Pub. L. 98–620 repealed subpar. (D) which provided for precedence on the docket and expeditious disposition of district court proceedings authorized by subsec. (a).

1978—Subsec. (a)(4)(F). Pub. L. 95–454 substituted references to the Special Counsel for references to the Civil Service Commission wherever appearing and reference to his findings for reference to its findings.

1976—Subsec. (b)(3). Pub. L. 94–409 inserted provision excluding section 552b of this title from applicability of exemption from disclosure and provision setting forth conditions for statute specifically exempting disclosure.

1974—Subsec. (a)(2). Pub. L. 93–502, §1(a), substituted provisions relating to maintenance and availability of current indexes, for provisions relating to maintenance and availability of a current index, and inserted provisions relating to publication and distribution of copies of indexes or supplements thereto.

Subsec. (a)(3). Pub. L. 93–502, §1(b)(1), substituted provisions requiring requests to reasonably describe records for provisions requiring requests, for identifiable records, and struck out provisions setting forth procedures to enjoin agencies from withholding the requested records and ordering their production.

Subsec. (a)(4), (5). Pub. L. 93–502, §1(b)(2), added par. (4) and redesignated former par. (4) as (5).

Subsec. (a)(6). Pub. L. 93–502, §1(c), added par. (6).

Subsec. (b)(1). Pub. L. 93–502, §2(a), designated existing provisions as cl. (A), substituted "authorized under criteria established by an" for "required by", and added cl. (B).

Subsec. (b)(7). Pub. L. 93–502, §2(b), substituted provisions relating to exemption for investigatory records compiled for law enforcement purposes, for provisions relating to exemption for investigatory files compiled for law enforcement purposes.

Subsec. (b), foll. par. (9). Pub. L. 93–502, §2(c), inserted provision relating to availability of segregable portion of records.

Subsecs. (d), (e). Pub. L. 93–502, §3, added subsecs. (d) and (e).

1967—Subsec. (a). Pub. L. 90–23 substituted introductory statement requiring every agency to make available to the public certain information for former introductory provision excepting from disclosure (1) any function of the United States requiring secrecy in the public interest or (2) any matter relating to internal management of an agency, covered in subsec. (b)(1) and (2) of this section.

Subsec. (a)(1). Pub. L. 90–23 incorporated provisions of: former subsec. (b)(1) in (A), inserting requirement of publication of names of officers as sources of information and provision for public to obtain decisions, and striking out publication requirement for delegations by the agency of final authority; former subsec. (b)(2), introductory part, in (B); former subsec. (b)(2), concluding part, in (C), inserting publication requirement for rules of procedure and descriptions of forms available or the places at which forms may be obtained; former subsec. (b)(3), introductory part, in (D), inserting requirement of general applicability of substantive rules and interpretations, added clause (E), substituted exemption of any person from failure to resort to any matter or from being adversely affected by any matter required to be published in the Federal Register but not so published for former subsec. (b)(3), concluding part, excepting from publication rules addressed to and served upon named persons in accordance with laws and final sentence reading "A person may not be required to resort to organization or procedure not so published" and inserted provision deeming matter, which is reasonably available, as published in the Federal Register when such matter is incorporated by reference in the Federal Register with the approval of its Director.

Subsec. (a)(2). Pub. L. 90–23 incorporated provisions of former subsec. (c), provided for public copying of records, struck out requirement of agency publication of final opinions or orders and authority for secrecy and withholding of opinions and orders required for good cause to be held confidential and not cited as precedents, latter provision now superseded by subsec. (b) of this section, designated existing subsec. (c) as clause (A), including provision for availability of concurring and dissenting opinions, inserted provisions for availability of policy statements and interpretations in clause (B) and staff manuals and instructions in clause (C), deletion of personal identifications from records to protect personal privacy with written justification therefor, and provision for indexing and prohibition of use of records not indexed against any private party without actual and timely notice of the terms thereof.

Subsec. (a)(3). Pub. L. 90–23 incorporated provisions of former subsec. (d) and substituted provisions requiring identifiable agency records to be made available to any person upon request and compliance with rules as to time, place, and procedure for inspection, and payment of fees and provisions for Federal district court proceedings de novo for enforcement by contempt of noncompliance with court's orders with the burden on the agency and docket precedence for such proceedings for former provisions requiring matters of official record to be made available to persons properly and directly concerned except information held confidential for good cause shown, the latter provision superseded by subsec. (b) of this section.

Subsec. (a)(4). Pub. L. 90–23 added par. (4).

Subsec. (b). Pub. L. 90–23 added subsec. (b) which superseded provisions excepting from disclosure any function of the United States requiring secrecy in the public interest or any matter relating to internal management of an agency, formerly contained in former subsec. (a), final opinions or orders required for good cause to be held confidential and not cited as precedents, formerly contained in subsec. (c), and information held confidential for good cause found, contained in former subsec. (d) of this section.

Subsec. (c). Pub. L. 90–23 added subsec. (c).

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective Date of 2016 Amendment

Pub. L. 114–185, §6, June 30, 2016, 130 Stat. 544, provided that: "This Act [amending this section and section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under this section and section 101 of this title], and the amendments made by this Act, shall take effect on the date of enactment of this Act [June 30, 2016] and shall apply to any request for records under section 552 of title 5, United States Code, made after the date of enactment of this Act."

Effective Date of 2007 Amendment

Pub. L. 110–175, §6(a)(2), Dec. 31, 2007, 121 Stat. 2526, provided that: "The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007]."

Pub. L. 110–175, §6(b)(2), Dec. 31, 2007, 121 Stat. 2526, provided that: "The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date."

Pub. L. 110–175, §7(b), Dec. 31, 2007, 121 Stat. 2527, provided that: "The amendment made by this section [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date."

Pub. L. 110–175, §10(b), Dec. 31, 2007, 121 Stat. 2530, provided that: "The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [Dec. 31, 2007]."

Effective Date of 1996 Amendment

Pub. L. 104–231, §12, Oct. 2, 1996, 110 Stat. 3054, provided that:

"(a) In General.—Except as provided in subsection (b), this Act [amending this section and enacting provisions set out as notes below] shall take effect 180 days after the date of the enactment of this Act [Oct. 2, 1996].

"(b) Provisions Effective on Enactment [sic].—Sections 7 and 8 [amending this section] shall take effect one year after the date of the enactment of this Act [Oct. 2, 1996]."

Effective Date of 1986 Amendment

Pub. L. 99–570, title I, §1804, Oct. 27, 1986, 100 Stat. 3207–50, provided that:

"(a) The amendments made by section 1802 [amending this section] shall be effective on the date of enactment of this Act [Oct. 27, 1986], and shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date.

"(b)(1) The amendments made by section 1803 [amending this section] shall be effective 180 days after the date of enactment of this Act [Oct. 27, 1986], except that regulations to implement such amendments shall be promulgated by such 180th day.

"(2) The amendments made by section 1803 [amending this section] shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date, except that review charges applicable to records requested for commercial use shall not be applied by an agency to requests made before the effective date specified in paragraph (1) of this subsection or before the agency has finally issued its regulations."

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

Effective Date of 1974 Amendment

Pub. L. 93–502, §4, Nov. 21, 1974, 88 Stat. 1564, provided that: "The amendments made by this Act [amending this section] shall take effect on the ninetieth day beginning after the date of enactment of this Act [Nov. 21, 1974]."

Effective Date of 1967 Amendment

Pub. L. 90–23, §4, June 5, 1967, 81 Stat. 56, provided that: "This Act [amending this section] shall be effective July 4, 1967, or on the date of enactment [June 5, 1967], whichever is later."

Short Title of 1996 Amendment

Pub. L. 104–231, §1, Oct. 2, 1996, 110 Stat. 3048, provided that: "This Act [amending this section and enacting provisions set out as notes under this section] may be cited as the 'Electronic Freedom of Information Act Amendments of 1996'."

Short Title of 1986 Amendment

Pub. L. 99–570, title I, §1801, Oct. 27, 1986, 100 Stat. 3207–48, provided that: "This subtitle [subtitle N (§§1801–1804) of title I of Pub. L. 99–570, amending this section and enacting provisions set out as a note under this section] may be cited as the 'Freedom of Information Reform Act of 1986'."

Short Title

This section is popularly known as the "Freedom of Information Act".

Review and Issuance of Regulations

Pub. L. 114–185, §3, June 30, 2016, 130 Stat. 544, provided that:

"(a) In General.—Not later than 180 days after the date of enactment of this Act [June 30, 2016], the head of each agency (as defined in section 551 of title 5, United States Code) shall review the regulations of such agency and shall issue regulations on procedures for the disclosure of records under section 552 of title 5, United States Code, in accordance with the amendments made by section 2 [amending this section].

"(b) Requirements.—The regulations of each agency shall include procedures for engaging in dispute resolution through the FOIA Public Liaison and the Office of Government Information Services."

Treatment of Information in Catch a Serial Offender Program for Certain Purposes

Pub. L. 116–92, div. A, title V, §550, Dec. 20, 2019, 133 Stat. 1379, provided that:

"(a) Treatment Under FOIA.—Victim disclosures under the Catch a Serial Offender Program shall be withheld from public disclosure under paragraph (b)(3) of section 552 of title 5, United States Code (commonly referred to as the 'Freedom of Information Act').

"(b) Preservation of Restricted Report.—The transmittal or receipt in connection with the Catch a Serial Offender Program of a report on a sexual assault that is treated as a restricted report shall not operate to terminate its treatment or status as a restricted report."

Protected National Security Documents

Pub. L. 111–83, title V, §565, Oct. 28, 2009, 123 Stat. 2184, provided that:

"(a) Short Title.—This section may be cited as the 'Protected National Security Documents Act of 2009'.

"(b) Notwithstanding any other provision of the law to the contrary, no protected document, as defined in subsection (c), shall be subject to disclosure under section 552 of title 5, United States Code[,] or any proceeding under that section.

"(c) Definitions.—In this section:

"(1) Protected document.—The term 'protected document' means any record—

"(A) for which the Secretary of Defense has issued a certification, as described in subsection (d), stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States; and

"(B) that is a photograph that—

"(i) was taken during the period beginning on September 11, 2001, through January 22, 2009; and

"(ii) relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.

"(2) Photograph.—The term 'photograph' encompasses all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures.

"(d) Certification.—

"(1) In general.—For any photograph described under subsection (c)(1), the Secretary of Defense shall issue a certification if the Secretary of Defense determines that disclosure of that photograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.

"(2) Certification expiration.—A certification and a renewal of a certification issued pursuant to subsection (d)(3) shall expire 3 years after the date on which the certification or renewal, [sic] is issued by the Secretary of Defense.

"(3) Certification renewal.—The Secretary of Defense may issue—

"(A) a renewal of a certification at any time; and

"(B) more than 1 renewal of a certification.

"(4) Notice to congress.—The Secretary of Defense shall provide Congress a timely notice of the Secretary's issuance of a certification and of a renewal of a certification.

"(e) Rule of Construction.—Nothing in this section shall be construed to preclude the voluntary disclosure of a protected document.

"(f) Effective Date.—This section shall take effect on the date of enactment of this Act [Oct. 28, 2009] and apply to any protected document."

Findings

Pub. L. 110–175, §2, Dec. 31, 2007, 121 Stat. 2524, provided that: "Congress finds that—

"(1) the Freedom of Information Act [probably means Pub. L. 89–487 which amended section 1002 of former Title 5, Executive Departments and Government Officers and Employees, see Historical and Revision notes above] was signed into law on July 4, 1966, because the American people believe that—

"(A) our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed;

"(B) such consent is not meaningful unless it is informed consent; and

"(C) as Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), 'The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.';

"(2) the American people firmly believe that our system of government must itself be governed by a presumption of openness;

"(3) the Freedom of Information Act establishes a 'strong presumption in favor of disclosure' as noted by the United States Supreme Court in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act;

"(4) 'disclosure, not secrecy, is the dominant objective of the Act,' as noted by the United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976));

"(5) in practice, the Freedom of Information Act has not always lived up to the ideals of that Act; and

"(6) Congress should regularly review section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), in order to determine whether further changes and improvements are necessary to ensure that the Government remains open and accessible to the American people and is always based not upon the 'need to know' but upon the fundamental 'right to know'."

Limitation on Amounts Obligated or Expended From Claims and Judgment Fund

Pub. L. 110–175, §4(b), Dec. 31, 2007, 121 Stat. 2525, provided that: "Notwithstanding section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from fees assessed under section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered."

Nondisclosure of Certain Products of Commercial Satellite Operations

Pub. L. 108–375, div. A, title IX, §914, Oct. 28, 2004, 118 Stat. 2029, provided that:

"(a) Mandatory Disclosure Requirements Inapplicable.—The requirements to make information available under section 552 of title 5, United States Code, shall not apply to land remote sensing information.

"(b) Land Remote Sensing Information Defined.—In this section, the term 'land remote sensing information'—

"(1) means any data that—

"(A) are collected by land remote sensing; and

"(B) are prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license issued pursuant to the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5601 et seq.) [now 51 U.S.C. 60101 et seq.]; and

"(2) includes any imagery and other product that is derived from such data and which is prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license described in paragraph (1)(B).

"(c) State or Local Government Disclosures.—Land remote sensing information provided by the head of a department or agency of the United States to a State, local, or tribal government may not be made available to the general public under any State, local, or tribal law relating to the disclosure of information or records.

"(d) Safeguarding Information.—The head of each department or agency of the United States having land remote sensing information within that department or agency or providing such information to a State, local, or tribal government shall take such actions, commensurate with the sensitivity of that information, as are necessary to protect that information from disclosure other than in accordance with this section and other applicable law.

"(e) Additional Definition.—In this section, the term 'land remote sensing' has the meaning given such term in section 3 of the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5602) [now 51 U.S.C. 60101].

"(f) Disclosure to Congress.—Nothing in this section shall be construed to authorize the withholding of information from the appropriate committees of Congress."

Disclosure of Arson, Explosive, or Firearm Records

Pub. L. 108–7, div. J, title VI, §644, Feb. 20, 2003, 117 Stat. 473, provided that: "No funds appropriated under this Act or any other Act with respect to any fiscal year shall be available to take any action based upon any provision of 5 U.S.C. 552 with respect to records collected or maintained pursuant to 18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided by Federal, State, local, or foreign law enforcement agencies in connection with arson or explosives incidents or the tracing of a firearm, except that such records may continue to be disclosed to the extent and in the manner that records so collected, maintained, or obtained have been disclosed under 5 U.S.C. 552 prior to the date of the enactment of this Act [Feb. 20, 2003]."

Disclosure of Information on Japanese Imperial Government

Pub. L. 106–567, title VIII, Dec. 27, 2000, 114 Stat. 2864, as amended by Pub. L. 108–199, div. H, §163, Jan. 23, 2004, 118 Stat. 452; Pub. L. 109–5, §1, Mar. 25, 2005, 119 Stat. 19, provided that:

"SEC. 801. SHORT TITLE.

"This title may be cited as the 'Japanese Imperial Government Disclosure Act of 2000'.

"SEC. 802. DESIGNATION.

"(a) Definitions.—In this section:

"(1) Agency.—The term 'agency' has the meaning given such term under section 551 of title 5, United States Code.

"(2) Interagency group.—The term 'Interagency Group' means the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group established under subsection (b).

"(3) Japanese imperial government records.—The term 'Japanese Imperial Government records' means classified records or portions of records that pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the experimentation on, and persecution of, any person because of race, religion, national origin, or political opinion, during the period beginning September 18, 1931, and ending on December 31, 1948, under the direction of, or in association with—

"(A) the Japanese Imperial Government;

"(B) any government in any area occupied by the military forces of the Japanese Imperial Government;

"(C) any government established with the assistance or cooperation of the Japanese Imperial Government; or

"(D) any government which was an ally of the Japanese Imperial Government.

"(4) Record.—The term 'record' means a Japanese Imperial Government record.

"(b) Establishment of Interagency Group.—

"(1) In general.—Not later than 60 days after the date of the enactment of this Act [Dec. 27, 2000], the President shall designate the Working Group established under the Nazi War Crimes Disclosure Act (Public Law 105–246; 5 U.S.C. 552 note) to also carry out the purposes of this title with respect to Japanese Imperial Government records, and that Working Group shall remain in existence for 6 years after the date on which this title takes effect. Such Working Group is redesignated as the 'Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group'.

"(2) Membership.—[Amended Pub. L. 105–246, set out as a note below.]

"(c) Functions.—Not later than 1 year after the date of the enactment of this Act [Dec. 27, 2000], the Interagency Group shall, to the greatest extent possible consistent with section 803—

"(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Japanese Imperial Government records of the United States;

"(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and

"(3) submit a report to Congress, including the Committee on Government Reform [now Committee on Oversight and Accountability] and the Permanent Select Committee on Intelligence of the House of Representatives, and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.

"(d) Funding.—There is authorized to be appropriated such sums as may be necessary to carry out the provisions of this title.

"SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.

"(a) Release of Records.—Subject to subsections (b), (c), and (d), the Japanese Imperial Government Records Interagency Working Group shall release in their entirety Japanese Imperial Government records.

"(b) Exemptions.—An agency head may exempt from release under subsection (a) specific information, that would—

"(1) constitute an unwarranted invasion of personal privacy;

"(2) reveal the identity of a confidential human source, or reveal information about an intelligence source or method when the unauthorized disclosure of that source or method would damage the national security interests of the United States;

"(3) reveal information that would assist in the development or use of weapons of mass destruction;

"(4) reveal information that would impair United States cryptologic systems or activities;

"(5) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;

"(6) reveal United States military war plans that remain in effect;

"(7) reveal information that would impair relations between the United States and a foreign government, or undermine ongoing diplomatic activities of the United States;

"(8) reveal information that would impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services are authorized in the interest of national security;

"(9) reveal information that would impair current national security emergency preparedness plans; or

"(10) violate a treaty or other international agreement.

"(c) Applications of Exemptions.—

"(1) In general.—In applying the exemptions provided in paragraphs (2) through (10) of subsection (b), there shall be a presumption that the public interest will be served by disclosure and release of the records of the Japanese Imperial Government. The exemption may be asserted only when the head of the agency that maintains the records determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who makes such a determination shall promptly report it to the committees of Congress with appropriate jurisdiction, including the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on Government Reform [now Committee on Oversight and Accountability] and the Permanent Select Committee on Intelligence of the House of Representatives.

"(2) Application of title 5.—A determination by an agency head to apply an exemption provided in paragraphs (2) through (9) of subsection (b) shall be subject to the same standard of review that applies in the case of records withheld under section 552(b)(1) of title 5, United States Code.

"(d) Records Related to Investigations or Prosecutions.—This section shall not apply to records—

"(1) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or

"(2) solely in the possession, custody, or control of the Office of Special Investigations.

"SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.

"For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any person who was persecuted in the manner described in section 802(a)(3) and who requests a Japanese Imperial Government record shall be deemed to have a compelling need for such record.

"SEC. 805. EFFECTIVE DATE.

"The provisions of this title shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 27, 2000]."

Nazi War Crimes Disclosure

Pub. L. 105–246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub. L. 106–567, §802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Nazi War Crimes Disclosure Act'.

"SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY WORKING GROUP.

"(a) Definitions.—In this section the term—

"(1) 'agency' has the meaning given such term under section 551 of title 5, United States Code;

"(2) 'Interagency Group' means the Nazi War Criminal Records Interagency Working Group [redesignated Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, see section 802(b)(1) of Pub. L. 106–567, set out above] established under subsection (b);

"(3) 'Nazi war criminal records' has the meaning given such term under section 3 of this Act; and

"(4) 'record' means a Nazi war criminal record.

"(b) Establishment of Interagency Group.—

"(1) In general.—Not later than 60 days after the date of enactment of this Act [Oct. 8, 1998], the President shall establish the Nazi War Criminal Records Interagency Working Group, which shall remain in existence for 3 years after the date the Interagency Group is established.

"(2) Membership.—The President shall appoint to the Interagency Group individuals whom the President determines will most completely and effectively carry out the functions of the Interagency Group within the time limitations provided in this section, including the Director of the Holocaust Museum, the Historian of the Department of State, the Archivist of the United States, the head of any other agency the President considers appropriate, and no more than 4 other persons who shall be members of the public, of whom 3 shall be persons appointed under the provisions of this Act in effect on October 8, 1998..[sic] The head of an agency appointed by the President may designate an appropriate officer to serve on the Interagency Group in lieu of the head of such agency.

"(3) Initial meeting.—Not later than 90 days after the date of enactment of this Act, the Interagency Group shall hold an initial meeting and begin the functions required under this section.

"(c) Functions.—Not later than 1 year after the date of enactment of this Act [Oct. 8, 1998], the Interagency Group shall, to the greatest extent possible consistent with section 3 of this Act—

"(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Nazi war criminal records of the United States;

"(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and

"(3) submit a report to Congress, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Accountability] of the House of Representatives, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.

"(d) Funding.—There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.

"SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS WHO COMMITTED NAZI WAR CRIMES.

"(a) Nazi War Criminal Records.—For purposes of this Act, the term 'Nazi war criminal records' means classified records or portions of records that—

"(1) pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—

"(A) the Nazi government of Germany;

"(B) any government in any area occupied by the military forces of the Nazi government of Germany;

"(C) any government established with the assistance or cooperation of the Nazi government of Germany; or

"(D) any government which was an ally of the Nazi government of Germany; or

"(2) pertain to any transaction as to which the United States Government, in its sole discretion, has grounds to believe—

"(A) involved assets taken from persecuted persons during the period beginning on March 23, 1933, and ending on May 8, 1945, by, under the direction of, on behalf of, or under authority granted by the Nazi government of Germany or any nation then allied with that government; and

"(B) such transaction was completed without the assent of the owners of those assets or their heirs or assigns or other legitimate representatives.

"(b) Release of Records.—

"(1) In general.—Subject to paragraphs (2), (3), and (4), the Nazi War Criminal Records Interagency Working Group shall release in their entirety Nazi war criminal records that are described in subsection (a).

"(2) Exception for privacy, etc.—An agency head may exempt from release under paragraph (1) specific information, that would—

"(A) constitute a clearly unwarranted invasion of personal privacy;

"(B) reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States;

"(C) reveal information that would assist in the development or use of weapons of mass destruction;

"(D) reveal information that would impair United States cryptologic systems or activities;

"(E) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;

"(F) reveal actual United States military war plans that remain in effect;

"(G) reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;

"(H) reveal information that would clearly and demonstrably impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;

"(I) reveal information that would seriously and demonstrably impair current national security emergency preparedness plans; or

"(J) violate a treaty or international agreement.

"(3) Application of exemptions.—

"(A) In general.—In applying the exemptions listed in subparagraphs (B) through (J) of paragraph (2), there shall be a presumption that the public interest in the release of Nazi war criminal records will be served by disclosure and release of the records. Assertion of such exemption may only be made when the agency head determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who makes such a determination shall promptly report it to the committees of Congress with appropriate jurisdiction, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Accountability] of the House of Representatives. The exemptions set forth in paragraph (2) shall constitute the only authority pursuant to which an agency head may exempt records otherwise subject to release under paragraph (1).

"(B) Application of title 5.—A determination by an agency head to apply an exemption listed in subparagraphs (B) through (I) of paragraph (2) shall be subject to the same standard of review that applies in the case of records withheld under section 552(b)(1) of title 5, United States Code.

"(4) Limitation on application.—This subsection shall not apply to records—

"(A) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or

"(B) solely in the possession, custody, or control of that office.

"(c) Inapplicability of National Security Act of 1947 Exemption.—Section 701(a) of the National Security Act of 1947 (50 U.S.C. 431[(a)]) [now 50 U.S.C. 3141(a)] shall not apply to any operational file, or any portion of any operational file, that constitutes a Nazi war criminal record under section 3 of this Act.

"SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.

"(a) Expedited Processing.—For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any requester of a Nazi war criminal record shall be deemed to have a compelling need for such record.

"(b) Requester.—For purposes of this section, the term 'requester' means any person who was persecuted in the manner described under section 3(a)(1) of this Act who requests a Nazi war criminal record.

"SEC. 5. EFFECTIVE DATE.

"This Act and the amendments made by this Act shall take effect on the date that is 90 days after the date of enactment of this Act [Oct. 8, 1998]."

Congressional Statement of Findings and Purpose; Public Access to Information in Electronic Format

Pub. L. 104–231, §2, Oct. 2, 1996, 110 Stat. 3048, provided that:

"(a) Findings.—The Congress finds that—

"(1) the purpose of section 552 of title 5, United States Code, popularly known as the Freedom of Information Act, is to require agencies of the Federal Government to make certain agency information available for public inspection and copying and to establish and enable enforcement of the right of any person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose;

"(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;

"(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;

"(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;

"(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and

"(6) Government agencies should use new technology to enhance public access to agency records and information.

"(b) Purposes.—The purposes of this Act [see Short Title of 1996 Amendment note above] are to—

"(1) foster democracy by ensuring public access to agency records and information;

"(2) improve public access to agency records and information;

"(3) ensure agency compliance with statutory time limits; and

"(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government."

Freedom of Information Act Exemption for Certain Open Skies Treaty Data

Pub. L. 103–236, title V, §533, Apr. 30, 1994, 108 Stat. 480, provided that:

"(a) In General.—Data with respect to a foreign country collected by sensors during observation flights conducted in connection with the Treaty on Open Skies, including flights conducted prior to entry into force of the treaty, shall be exempt from disclosure under the Freedom of Information Act—

"(1) if the country has not disclosed the data to the public; and

"(2) if the country has not, acting through the Open Skies Consultative Commission or any other diplomatic channel, authorized the United States to disclose the data to the public.

"(b) Statutory Construction.—This section constitutes a specific exemption within the meaning of section 552(b)(3) of title 5, United States Code.

"(c) Definitions.—For the purposes of this section—

"(1) the term 'Freedom of Information Act' means the provisions of section 552 of title 5, United States Code;

"(2) the term 'Open Skies Consultative Commission' means the commission established pursuant to Article X of the Treaty on Open Skies; and

"(3) the term 'Treaty on Open Skies' means the Treaty on Open Skies, signed at Helsinki on March 24, 1992."

Executive Documents

Classified National Security Information

For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, §3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and National Defense.

Executive Order No. 12174

Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which related to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.

Ex. Ord. No. 12600. Predisclosure Notification Procedures for Confidential Commercial Information

Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:

By the authority vested in me as President by the Constitution and statutes of the United States of America, and in order to provide predisclosure notification procedures under the Freedom of Information Act [5 U.S.C. 552] concerning confidential commercial information, and to make existing agency notification provisions more uniform, it is hereby ordered as follows:

Section 1. The head of each Executive department and agency subject to the Freedom of Information Act [5 U.S.C. 552] shall, to the extent permitted by law, establish procedures to notify submitters of records containing confidential commercial information as described in section 3 of this Order, when those records are requested under the Freedom of Information Act [FOIA], 5 U.S.C. 552, as amended, if after reviewing the request, the responsive records, and any appeal by the requester, the department or agency determines that it may be required to disclose the records. Such notice requires that an agency use good-faith efforts to advise submitters of confidential commercial information of the procedures established under this Order. Further, where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.

Sec. 2. For purposes of this Order, the following definitions apply:

(a) "Confidential commercial information" means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.

(b) "Submitter" means any person or entity who provides confidential commercial information to the government. The term "submitter" includes, but is not limited to, corporations, state governments, and foreign governments.

Sec. 3. (a) For confidential commercial information submitted prior to January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, provide a submitter with notice pursuant to section 1 whenever:

(i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or

(ii) the department or agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.

(b) For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the Federal government or a reasonable time thereafter, any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration, after a specified period of time or changes in circumstances, of designations of competitive harm made by submitters. Additionally, such procedures may permit the agency to designate specific classes of information that will be treated by the agency as if the information had been so designated by the submitter. The head of each Executive department or agency shall, to the extent permitted by law, provide the submitter notice in accordance with section 1 of this Order whenever the department or agency determines that it may be required to disclose records:

(i) designated pursuant to this subsection; or

(ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm.

Sec. 4. When notification is made pursuant to section 1, each agency's procedures shall, to the extent permitted by law, afford the submitter a reasonable period of time in which the submitter or its designee may object to the disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed.

Sec. 5. Each agency shall give careful consideration to all such specified grounds for nondisclosure prior to making an administrative determination of the issue. In all instances when the agency determines to disclose the requested records, its procedures shall provide that the agency give the submitter a written statement briefly explaining why the submitter's objections are not sustained. Such statement shall, to the extent permitted by law, be provided a reasonable number of days prior to a specified disclosure date.

Sec. 6. Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information, each agency's procedures shall require that the submitter be promptly notified.

Sec. 7. The designation and notification procedures required by this Order shall be established by regulations, after notice and public comment. If similar procedures or regulations already exist, they should be reviewed for conformity and revised where necessary. Existing procedures or regulations need not be modified if they are in compliance with this Order.

Sec. 8. The notice requirements of this Order need not be followed if:

(a) The agency determines that the information should not be disclosed;

(b) The information has been published or has been officially made available to the public;

(c) Disclosure of the information is required by law (other than 5 U.S.C. 552);

(d) The disclosure is required by an agency rule that (1) was adopted pursuant to notice and public comment, (2) specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act [5 U.S.C. 552], and (3) provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm;

(e) The information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to section 7, when the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or

(f) The designation made by the submitter in accordance with agency regulations promulgated pursuant to section 7 appears obviously frivolous; except that, in such case, the agency must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date.

Sec. 9. Whenever an agency notifies a submitter that it may be required to disclose information pursuant to section 1 of this Order, the agency shall also notify the requester that notice and an opportunity to comment are being provided the submitter. Whenever an agency notifies a submitter of a final decision pursuant to section 5 of this Order, the agency shall also notify the requester.

Sec. 10. This Order is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

Ronald Reagan.      

Ex. Ord. No. 13110. Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group

Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Nazi War Crimes Disclosure Act (Public Law 105–246) (the "Act") [5 U.S.C. 552 note], it is hereby ordered as follows:

Section 1. Establishment of Working Group. There is hereby established the Nazi War Criminal Records Interagency Working Group [now Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group] (Working Group). The function of the Group shall be to locate, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration all classified Nazi war criminal records of the United States, subject to certain designated exceptions as provided in the Act. The Working Group shall coordinate with agencies and take such actions as necessary to expedite the release of such records to the public.

Sec. 2. Schedule. The Working Group should complete its work to the greatest extent possible and report to the Congress within 1 year.

Sec. 3. Membership. (a) The Working Group shall be composed of the following members:

(1) Archivist of the United States (who shall serve as Chair of the Working Group);

(2) Secretary of Defense;

(3) Attorney General;

(4) Director of Central Intelligence;

(5) Director of the Federal Bureau of Investigation;

(6) Director of the United States Holocaust Memorial Museum;

(7) Historian of the Department of State; and

(8) Three other persons appointed by the President.

(b) The Senior Director for Records and Access Management of the National Security Council will serve as the liaison to and attend the meetings of the Working Group. Members of the Working Group who are full-time Federal officials may serve on the Working Group through designees.

Sec. 4. Administration. (a) To the extent permitted by law and subject to the availability of appropriations, the National Archives and Records Administration shall provide the Working Group with funding, administrative services, facilities, staff, and other support services necessary for the performance of the functions of the Working Group.

(b) The Working Group shall terminate 3 years from the date of this Executive order.

William J. Clinton.      

Ex. Ord. No. 13392. Improving Agency Disclosure of Information

Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure appropriate agency disclosure of information, and consistent with the goals of section 552 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy.

(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) [5 U.S.C. 552] has provided an important means through which the public can obtain information regarding the activities of Federal agencies. Under the FOIA, the public can obtain records from any Federal agency, subject to the exemptions enacted by the Congress to protect information that must be held in confidence for the Government to function effectively or for other purposes.

(b) FOIA requesters are seeking a service from the Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies shall respond courteously and appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process, about agency records that are publicly available (e.g., on the agency's website), and about the status of a person's FOIA request and appropriate information about the agency's response.

(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall process requests under the FOIA in an efficient and appropriate manner and achieve tangible, measurable improvements in FOIA processing. When an agency's FOIA program does not produce such results, it should be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase efficiency and better reflect the policy goals and objectives of this order.

(d) A citizen-centered and results-oriented approach will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation.

Sec. 2. Agency Chief FOIA Officers.

(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency. The head of the agency shall promptly notify the Director of the Office of Management and Budget (OMB Director) and the Attorney General of such designation and of any changes thereafter in such designation.

(b) General Duties. The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency:

(i) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;

(ii) monitor FOIA implementation throughout the agency, including through the use of meetings with the public to the extent deemed appropriate by the agency's Chief FOIA Officer, and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency's performance in implementing the FOIA, including the extent to which the agency meets the milestones in the agency's plan under section 3(b) of this order and training and reporting standards established consistent with applicable law and this order;

(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to carry out the policy set forth in section 1 of this order;

(iv) review and report, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing the FOIA; and

(v) facilitate public understanding of the purposes of the FOIA's statutory exemptions by including concise descriptions of the exemptions in both the agency's FOIA handbook issued under section 552(g) of title 5, United States Code, and the agency's annual FOIA report, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.

(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication with FOIA requesters:

(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;

(ii) The agency Chief FOIA Officer shall designate one or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may serve in a separate office. FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their activities and shall perform their duties consistent with applicable law and agency regulations;

(iii) In addition to the services to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency Chief FOIA Officer shall also consider what other FOIA-related assistance to the public should appropriately be provided by the agency;

(iv) In establishing the Centers and designating FOIA Public Liaisons, the agency shall use, as appropriate, existing agency staff and resources. A Center shall have appropriate staff to receive and respond to inquiries from FOIA requesters;

(v) As determined by the agency Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency shall post appropriate information about its Center or Centers on the agency's website, including contact information for its FOIA Public Liaisons. In the case of an agency without a website, the agency shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a website nor the capability to post on the Firstgov.gov website, in the Federal Register; and

(vi) The agency Chief FOIA Officer shall ensure that the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from FOIA requesters about the status of their requests. The Chief FOIA Officer shall also consider, in consultation with the FOIA Public Liaisons, as appropriate, whether the agency's implementation of other means (such as tracking numbers for requests, or an agency telephone or Internet hotline) would be appropriate for responding to status inquiries.

Sec. 3. Review, Plan, and Report.

(a) Review. Each agency's Chief FOIA Officer shall conduct a review of the agency's FOIA operations to determine whether agency practices are consistent with the policies set forth in section 1 of this order. In conducting this review, the Chief FOIA Officer shall:

(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency's administration of the FOIA, including the agency's expenditure of resources on FOIA compliance and the extent to which, if any, requests for records have not been responded to within the statutory time limit (backlog);

(ii) review the processes and practices by which the agency assists and informs the public regarding the FOIA process;

(iii) examine the agency's:

(A) use of information technology in responding to FOIA requests, including without limitation the tracking of FOIA requests and communication with requesters;

(B) practices with respect to requests for expedited processing; and

(C) implementation of multi-track processing if used by such agency;

(iv) review the agency's policies and practices relating to the availability of public information through websites and other means, including the use of websites to make available the records described in section 552(a)(2) of title 5, United States Code; and

(v) identify ways to eliminate or reduce its FOIA backlog, consistent with available resources and taking into consideration the volume and complexity of the FOIA requests pending with the agency.

(b) Plan.

(i) Each agency's Chief FOIA Officer shall develop, in consultation as appropriate with the staff of the agency (including the FOIA Public Liaisons), the Attorney General, and the OMB Director, an agency-specific plan to ensure that the agency's administration of the FOIA is in accordance with applicable law and the policies set forth in section 1 of this order. The plan, which shall be submitted to the head of the agency for approval, shall address the agency's implementation of the FOIA during fiscal years 2006 and 2007.

(ii) The plan shall include specific activities that the agency will implement to eliminate or reduce the agency's FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA.

(iii) The plan shall also include activities to increase public awareness of FOIA processing, including as appropriate, expanded use of the agency's Center and its FOIA Public Liaisons.

(iv) The plan shall also include, taking appropriate account of the resources available to the agency and the mission of the agency, concrete milestones, with specific timetables and outcomes to be achieved, by which the head of the agency, after consultation with the OMB Director, shall measure and evaluate the agency's success in the implementation of the plan.

(c) Agency Reports to the Attorney General and OMB Director.

(i) The head of each agency shall submit a report, no later than 6 months from the date of this order, to the Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this order and encloses a copy of the agency's plan under section 3(b) of this order. The agency shall publish a copy of the agency's report on the agency's website or, in the case of an agency without a website, on the Firstgov.gov website, or, in the case of any agency with neither a website nor the capability to publish on the Firstgov.gov website, in the Federal Register.

(ii) The head of each agency shall include in the agency's annual FOIA reports for fiscal years 2006 and 2007 a report on the agency's development and implementation of its plan under section 3(b) of this order and on the agency's performance in meeting the milestones set forth in that plan, consistent with any related guidelines the Attorney General may issue under section 552(e) of title 5, United States Code.

(iii) If the agency does not meet a milestone in its plan, the head of the agency shall:

(A) identify this deficiency in the annual FOIA report to the Attorney General;

(B) explain in the annual report the reasons for the agency's failure to meet the milestone;

(C) outline in the annual report the steps that the agency has already taken, and will be taking, to address the deficiency; and

(D) report this deficiency to the President's Management Council.

Sec. 4. Attorney General.

(a) Report. The Attorney General, using the reports submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by agencies in their annual FOIA reports for fiscal year 2005, shall submit to the President, no later than 10 months from the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the OMB Director in the preparation of the report and shall include in the report appropriate recommendations on administrative or other agency actions for continued agency dissemination and release of public information. The Attorney General shall thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008, that provide the President with an update on the agencies' implementation of the FOIA and of their plans under section 3(b) of this order.

(b) Guidance. The Attorney General shall issue such instructions and guidance to the heads of departments and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.

Sec. 5. OMB Director. The OMB Director may issue such instructions to the heads of agencies as are necessary to implement this order, other than sections 3(b) and 3(c) of this order.

Sec. 6. Definitions. As used in this order:

(a) the term "agency" has the same meaning as the term "agency" under section 552(f)(1) of title 5, United States Code; and

(b) the term "record" has the same meaning as the term "record" under section 552(f)(2) of title 5, United States Code.

Sec. 7. General Provisions.

(a) The agency reviews under section 3(a) of this order and agency plans under section 3(b) of this order shall be conducted and developed in accordance with applicable law and applicable guidance issued by the President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.

(b) This order:

(i) shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations;

(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to budget, legislative, or administrative proposals; and

(iii) is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.

George W. Bush.      

Ex. Ord. No. 13642. Making Open and Machine Readable the New Default for Government Information

Ex. Ord. No. 13642, May 9, 2013, 78 F.R. 28111, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. General Principles. Openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth. As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans' lives and contributes significantly to job creation.

Decades ago, the U.S. Government made both weather data and the Global Positioning System freely available. Since that time, American entrepreneurs and innovators have utilized these resources to create navigation systems, weather newscasts and warning systems, location-based applications, precision farming tools, and much more, improving Americans' lives in countless ways and leading to economic growth and job creation. In recent years, thousands of Government data resources across fields such as health and medicine, education, energy, public safety, global development, and finance have been posted in machine-readable form for free public use on Data.gov. Entrepreneurs and innovators have continued to develop a vast range of useful new products and businesses using these public information resources, creating good jobs in the process.

To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security.

Sec. 2. Open Data Policy. (a) The Director of the Office of Management and Budget (OMB), in consultation with the Chief Information Officer (CIO), Chief Technology Officer (CTO), and Administrator of the Office of Information and Regulatory Affairs (OIRA), shall issue an Open Data Policy to advance the management of Government information as an asset, consistent with my memorandum of January 21, 2009 (Transparency and Open Government), OMB Memorandum M–10–06 (Open Government Directive), OMB and National Archives and Records Administration Memorandum M–12–18 (Managing Government Records Directive), the Office of Science and Technology Policy Memorandum of February 22, 2013 (Increasing Access to the Results of Federally Funded Scientific Research), and the CIO's strategy entitled "Digital Government: Building a 21st Century Platform to Better Serve the American People." The Open Data Policy shall be updated as needed.

(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage of the information lifecycle to identify information that should not be released. These review processes should be overseen by the senior agency official for privacy. It is vital that agencies not release information if doing so would violate any law or policy, or jeopardize privacy, confidentiality, or national security.

Sec. 3. Implementation of the Open Data Policy. To facilitate effective Government-wide implementation of the Open Data Policy, I direct the following:

(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.

(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.

(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President's Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (Public Law 111–352).

(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.

(e) Independent agencies are requested to adhere to this order.

Barack Obama.      

Freedom of Information Act

Memorandum of President of the United States, Jan. 21, 2009, 74 F.R. 4683, provided:

Memorandum for the Heads of Executive Departments and Agencies

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.

This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

¹ See References in Text note below.

§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;

(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;

(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));

(ix) matches performed by the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services with respect to potential fraud, waste, and abuse, including matches of a system of records with non-Federal records; or

(x) matches performed pursuant to section 3(d)(4) of the Achieving a Better Life Experience Act of 2014; 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, any joint committee of Congress or subcommittee of any such joint committee;

(10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the Government Accountability Office;

(11) to the Director of the Congressional Budget Office, or any authorized representative of the Director, in the course of performance of the duties of the Congressional Budget Office;

(12) pursuant to the order of a court of competent jurisdiction; or

(13) 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.

(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)(1) Government Contractors.—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 financial 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 of the House of Representatives; and

(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 statute 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 which 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 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.

(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 or 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.²

(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 of the House of Representatives.

(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 and oversight of the implementation of this section by agencies.

(w) Applicability to Bureau of Consumer Financial Protection.—Except as provided in the Consumer Financial Protection Act of 2010, this section shall apply with respect to the Bureau of Consumer Financial Protection.

(Added Pub. L. 93–579, §3, Dec. 31, 1974, 88 Stat. 1897; amended Pub. L. 94–183, §2(2), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 97–365, §2, Oct. 25, 1982, 96 Stat. 1749; Pub. L. 97–375, title II, §201(a), (b), Dec. 21, 1982, 96 Stat. 1821; Pub. L. 97–452, §2(a)(1), Jan. 12, 1983, 96 Stat. 2478; Pub. L. 98–477, §2(c), Oct. 15, 1984, 98 Stat. 2211; Pub. L. 98–497, title I, §107(g), Oct. 19, 1984, 98 Stat. 2292; Pub. L. 100–503, §§2–6(a), 7, 8, Oct. 18, 1988, 102 Stat. 2507–2514; Pub. L. 101–508, title VII, §7201(b)(1), Nov. 5, 1990, 104 Stat. 1388–334; Pub. L. 103–66, title XIII, §13581(c), Aug. 10, 1993, 107 Stat. 611; Pub. L. 104–193, title I, §110(w), Aug. 22, 1996, 110 Stat. 2175; Pub. L. 104–226, §1(b)(3), Oct. 2, 1996, 110 Stat. 3033; Pub. L. 104–316, title I, §115(g)(2)(B), Oct. 19, 1996, 110 Stat. 3835; Pub. L. 105–34, title X, §1026(b)(2), Aug. 5, 1997, 111 Stat. 925; Pub. L. 105–362, title XIII, §1301(d), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 106–170, title IV, §402(a)(2), Dec. 17, 1999, 113 Stat. 1908; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 111–148, title VI, §6402(b)(2), Mar. 23, 2010, 124 Stat. 756; Pub. L. 111–203, title X, §1082, July 21, 2010, 124 Stat. 2080; Pub. L. 113–295, div. B, title I, §102(d), Dec. 19, 2014, 128 Stat. 4062; Pub. L. 118–104, §2, Oct. 2, 2024, 138 Stat. 1586.)

Editorial Notes

References in Text

Section 552(e) of this title, referred to in subsec. (a)(1), was redesignated section 552(f) of this title by section 1802(b) of Pub. L. 99–570.

Section 6103 of the Internal Revenue Code of 1986, referred to in subsec. (a)(8)(B)(iv), (vii), is classified to section 6103 of Title 26, Internal Revenue Code.

Sections 404, 464, and 1137 of the Social Security Act, referred to in subsec. (a)(8)(B)(iv), are classified to sections 604, 664, and 1320b–7, respectively, of Title 42, The Public Health and Welfare.

The Achieving a Better Life Experience Act of 2014, referred to in subsec. (a)(8)(B)(x), probably means Pub. L. 113–295, div. B, Dec. 19, 2014, 128 Stat. 4056, known as the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014 or the Stephen Beck, Jr., ABLE Act of 2014. The Act does not contain a section 3.

For effective date of this section, referred to in subsecs. (k)(2), (5), (7), (l)(2), (3), and (m), see Effective Date note below.

Section 6 of the Privacy Act of 1974, referred to in subsec. (s)(1), is section 6 of Pub. L. 93–579, which was set out below and was repealed by section 6(c) of Pub. L. 100–503.

For classification of the Privacy Act of 1974, referred to in subsec. (s)(4), see Short Title note below.

The Consumer Financial Protection Act of 2010, referred to in subsec. (w), is title X of Pub. L. 111–203, July 21, 2010, 124 Stat. 1955, which enacted subchapter V (§5481 et seq.) of chapter 53 of Title 12, Banks and Banking, and enacted and amended numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 12 and Tables.

Codification

Section 552a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2244 of Title 7, Agriculture.

Amendments

2024—Subsec. (b)(11) to (13). Pub. L. 118–104 added par. (11) and redesignated former pars. (11) and (12) as (12) and (13), respectively.

2014—Subsec. (a)(8)(B)(x). Pub. L. 113–295 added cl. (x).

2010—Subsec. (a)(8)(B)(ix). Pub. L. 111–148 added cl. (ix).

Subsec. (w). Pub. L. 111–203 added subsec. (w).

2004—Subsec. (b)(10). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

1999—Subsec. (a)(8)(B)(viii). Pub. L. 106–170 added cl. (viii).

1998—Subsec. (u)(6), (7). Pub. L. 105–362 redesignated par. (7) as (6), substituted "paragraph (3)(D)" for "paragraphs (3)(D) and (6)", and struck out former par. (6) which read as follows: "The Director of the Office of Management and Budget shall, annually during the first 3 years after the date of enactment of this subsection and biennially thereafter, consolidate in a report to the Congress the information contained in the reports from the various Data Integrity Boards under paragraph (3)(D). Such report shall include detailed information about costs and benefits of matching programs that are conducted during the period covered by such consolidated report, and shall identify each waiver granted by a Data Integrity Board of the requirement for completion and submission of a cost-benefit analysis and the reasons for granting the waiver."

1997—Subsec. (a)(8)(B)(vii). Pub. L. 105–34 added cl. (vii).

1996—Subsec. (a)(8)(B)(iv)(III). Pub. L. 104–193 substituted "section 404(e), 464," for "section 464".

Subsec. (a)(8)(B)(v) to (vii). Pub. L. 104–226 inserted "or" at end of cl. (v), struck out "or" at end of cl. (vi), and struck out cl. (vii) which read as follows: "matches performed pursuant to section 6103(l)(12) of the Internal Revenue Code of 1986 and section 1144 of the Social Security Act;".

Subsecs. (b)(12), (m)(2). Pub. L. 104–316 substituted "3711(e)" for "3711(f)".

1993—Subsec. (a)(8)(B)(vii). Pub. L. 103–66 added cl. (vii).

1990—Subsec. (p). Pub. L. 101–508 amended subsec. (p) generally, restating former pars. (1) and (3) as par. (1), adding provisions relating to Data Integrity Boards, and restating former pars. (2) and (4) as (2) and (3), respectively.

1988—Subsec. (a)(8) to (13). Pub. L. 100–503, §5, added pars. (8) to (13).

Subsec. (e)(12). Pub. L. 100–503, §3(a), added par. (12).

Subsec. (f). Pub. L. 100–503, §7, substituted "biennially" for "annually" in last sentence.

Subsecs. (o) to (q). Pub. L. 100–503, §2(2), added subsecs. (o) to (q). Former subsecs. (o) to (q) redesignated (r) to (t), respectively.

Subsec. (r). Pub. L. 100–503, §3(b), inserted "and matching programs" in heading and amended text generally. Prior to amendment, text read as follows: "Each agency shall provide adequate advance notice to Congress and the Office of Management and Budget of any proposal to establish or alter any system of records in order to permit an evaluation of the probable or potential effect of such proposal on the privacy and other personal or property rights of individuals or the disclosure of information relating to such individuals, and its effect on the preservation of the constitutional principles of federalism and separation of powers."

Pub. L. 100–503, §2(1), redesignated former subsec. (o) as (r).

Subsec. (s). Pub. L. 100–503, §8, substituted "Biennial" for "Annual" in heading, "biennially submit" for "annually submit" in introductory provisions, "preceding 2 years" for "preceding year" in par. (1), and "such years" for "such year" in par. (2).

Pub. L. 100–503, §2(1), redesignated former subsec. (p) as (s).

Subsec. (t). Pub. L. 100–503, §2(1), redesignated former subsec. (q) as (t).

Subsec. (u). Pub. L. 100–503, §4, added subsec. (u).

Subsec. (v). Pub. L. 100–503, §6(a), added subsec. (v).

1984—Subsec. (b)(6). Pub. L. 98–497, §107(g)(1), substituted "National Archives and Records Administration" for "National Archives of the United States", and "Archivist of the United States or the designee of the Archivist" for "Administrator of General Services or his designee".

Subsec. (l)(1). Pub. L. 98–497, §107(g)(2), substituted "Archivist of the United States" for "Administrator of General Services" in two places.

Subsec. (q). Pub. L. 98–477 designated existing provisions as par. (1) and added par. (2).

1983—Subsec. (b)(12). Pub. L. 97–452 substituted "section 3711(f) of title 31" for "section 3(d) of the Federal Claims Collection Act of 1966 (31 U.S.C. 952(d))".

Subsec. (m)(2). Pub. L. 97–452 substituted "section 3711(f) of title 31" for "section 3(d) of the Federal Claims Collection Act of 1966 (31 U.S.C. 952(d))".

1982—Subsec. (b)(12). Pub. L. 97–365, §2(a), added par. (12).

Subsec. (e)(4). Pub. L. 97–375, §201(a), substituted "upon establishment or revision" for "at least annually" after "Federal Register".

Subsec. (m). Pub. L. 97–365, §2(b), designated existing provisions as par. (1) and added par. (2).

Subsec. (p). Pub. L. 97–375, §201(b), substituted provisions requiring annual submission of a report by the President to the Speaker of the House and President pro tempore of the Senate relating to the Director of the Office of Management and Budget, individual rights of access, changes or additions to systems of records, and other necessary or useful information, for provisions which had directed the President to submit to the Speaker of the House and the President of the Senate, by June 30 of each calendar year, a consolidated report, separately listing for each Federal agency the number of records contained in any system of records which were exempted from the application of this section under the provisions of subsections (j) and (k) of this section during the preceding calendar year, and the reasons for the exemptions, and such other information as indicate efforts to administer fully this section.

1975—Subsec. (g)(5). Pub. L. 94–183 substituted "to September 27, 1975" for "to the effective date of this section".

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective Date of 2014 Amendment

Pub. L. 113–295, div. B, title I, §102(f)(1), Dec. 19, 2014, 128 Stat. 4062, provided that: "The amendments made by this section [enacting section 529A of Title 26, Internal Revenue Code, and amending this section, section 5517 of Title 12, Banks and Banking, and sections 26, 877A, 4965, 4973, and 6693 of Title 26] shall apply to taxable years beginning after December 31, 2014."

Effective Date of 2010 Amendment

Pub. L. 111–203, title X, §1082, July 21, 2010, 124 Stat. 2080, provided that the amendment made by section 1082 is effective on July 21, 2010.

Pub. L. 111–203, title X, §1100H, July 21, 2010, 124 Stat. 2113, provided that: "Except as otherwise provided in this subtitle [subtitle H (§§1081–1100H) of title X of Pub. L. 111–203, see Tables for classification] and the amendments made by this subtitle, this subtitle and the amendments made by this subtitle, other than sections 1081 [amending section 8G of Pub. L. 95–452, formerly set out in the Appendix to this title, and enacting provisions set out as a note under section 8G of Pub. L. 95–452] and 1082 [amending this section and enacting provisions set out as a note under this section], shall become effective on the designated transfer date."

[The term "designated transfer date" is defined in section 5481(9) of Title 12, Banks and Banking, as the date established under section 5582 of Title 12, which is July 21, 2011.]

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–170 applicable to individuals whose period of confinement in an institution commences on or after the first day of the fourth month beginning after December 1999, see section 402(a)(4) of Pub. L. 106–170, set out as a note under section 402 of Title 42, The Public Health and Welfare.

Effective Date of 1997 Amendment

Amendment by Pub. L. 105–34 applicable to levies issued after Aug. 5, 1997, see section 1026(c) of Pub. L. 105–34, set out as a note under section 6103 of Title 26, Internal Revenue Code.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–193 effective July 1, 1997, with transition rules relating to State options to accelerate such date, rules relating to claims, actions, and proceedings commenced before such date, rules relating to closing out of accounts for terminated or substantially modified programs and continuance in office of Assistant Secretary for Family Support, and provisions relating to termination of entitlement under AFDC program, see section 116 of Pub. L. 104–193, as amended, set out as an Effective Date note under section 601 of Title 42, The Public Health and Welfare.

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–66 effective Jan. 1, 1994, see section 13581(d) of Pub. L. 103–66, set out as a note under section 1395y of Title 42, The Public Health and Welfare.

Effective Date of 1988 Amendment

Pub. L. 100–503, §10, Oct. 18, 1988, 102 Stat. 2514, as amended by Pub. L. 101–56, §2, July 19, 1989, 103 Stat. 149, provided that:

"(a) In General.—Except as provided in subsections (b) and (c), the amendments made by this Act [amending this section and repealing provisions set out as a note below] shall take effect 9 months after the date of enactment of this Act [Oct. 18, 1988].

"(b) Exceptions.—The amendment made by sections 3(b), 6, 7, and 8 of this Act [amending this section and repealing provisions set out as a note below] shall take effect upon enactment.

"(c) Effective Date Delayed for Existing Programs.—In the case of any matching program (as defined in section 552a(a)(8) of title 5, United States Code, as added by section 5 of this Act) in operation before June 1, 1989, the amendments made by this Act (other than the amendments described in subsection (b)) shall take effect January 1, 1990, if—

"(1) such matching program is identified by an agency as being in operation before June 1, 1989; and

"(2) such identification is—

"(A) submitted by the agency to the Committee on Governmental Affairs of the Senate, the Committee on Government Operations of the House of Representatives, and the Office of Management and Budget before August 1, 1989, in a report which contains a schedule showing the dates on which the agency expects to have such matching program in compliance with the amendments made by this Act, and

"(B) published by the Office of Management and Budget in the Federal Register, before September 15, 1989."

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of Title 44, Public Printing and Documents.

Effective Date

Pub. L. 93–579, §8, Dec. 31, 1974, 88 Stat. 1910, provided that: "The provisions of this Act [enacting this section and provisions set out as notes under this section] shall be effective on and after the date of enactment [Dec. 31, 1974], except that the amendments made by sections 3 and 4 [enacting this section and amending analysis preceding section 500 of this title] shall become effective 270 days following the day on which this Act is enacted."

Short Title of 1990 Amendment

Pub. L. 101–508, title VII, §7201(a), Nov. 5, 1990, 104 Stat. 1388–334, provided that: "This section [amending this section and enacting provisions set out as notes below] may be cited as the 'Computer Matching and Privacy Protection Amendments of 1990'."

Short Title of 1989 Amendment

Pub. L. 101–56, §1, July 19, 1989, 103 Stat. 149, provided that: "This Act [amending section 10 of Pub. L. 100–503, set out as a note above] may be cited as the 'Computer Matching and Privacy Protection Act Amendments of 1989'."

Short Title of 1988 Amendment

Pub. L. 100–503, §1, Oct. 18, 1988, 102 Stat. 2507, provided that: "This Act [amending this section, enacting provisions set out as notes above and below, and repealing provisions set out as a note below] may be cited as the 'Computer Matching and Privacy Protection Act of 1988'."

Short Title of 1974 Amendment

Pub. L. 93–579, §1, Dec. 31, 1974, 88 Stat. 1896, provided: "That this Act [enacting this section and provisions set out as notes under this section] may be cited as the 'Privacy Act of 1974'."

Short Title

This section is popularly known as the "Privacy Act" and the "Privacy Act of 1974".

Termination of Reporting Requirements

For termination, effective May 15, 2000, of reporting provisions in subsec. (s) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 31 of House Document No. 103–7.

Delegation of Functions

Functions of Director of Office of Management and Budget under this section delegated to Administrator for Office of Information and Regulatory Affairs by section 3 of Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2825, set out as a note under section 3503 of Title 44, Public Printing and Documents.

OMB Guidance on Electronic Consent and Access Forms

Pub. L. 116–50, §3, Aug. 22, 2019, 133 Stat. 1073, provided that:

"(a) Guidance.—Not later than 1 year after the date of the enactment of this Act [Aug. 22, 2019], the Director shall issue guidance that does the following:

"(1) Requires each agency to accept electronic identity proofing and authentication processes for the purposes of allowing an individual to provide prior written consent for the disclosure of the individual's records under section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) of such title.

"(2) Creates a template for electronic consent and access forms and requires each agency to post the template on the agency website and to accept the forms from any individual properly identity proofed and authenticated in accordance with paragraph (1) for the purpose of authorizing disclosure of the individual's records under section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) of such title.

"(3) Requires each agency to accept the electronic consent and access forms described in paragraph (2) from any individual properly identity proofed and authenticated in accordance with paragraph (1) for the purpose of authorizing disclosure of the individual's records to another entity, including a congressional office, in accordance with section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) [of such title].

"(b) Agency Compliance.—Each agency shall comply with the guidance issued pursuant to subsection (a) not later than 1 year after the date on which such guidance is issued.

"(c) Definitions.—In this section:

"(1) Agency; individual; record.—The terms 'agency', 'individual', and 'record' have the meanings given those terms in section 552a(a) of title 5, United States Code.

"(2) Director.—The term 'Director' means the Director of the Office of Management and Budget."

Extension of Privacy Act Remedies to Citizens of Designated Countries

Pub. L. 114–126, Feb. 24, 2016, 130 Stat. 282, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Judicial Redress Act of 2015'.

"SEC. 2. EXTENSION OF PRIVACY ACT REMEDIES TO CITIZENS OF DESIGNATED COUNTRIES.

"(a) Civil Action; Civil Remedies.—With respect to covered records, a covered person may bring a civil action against an agency and obtain civil remedies, in the same manner, to the same extent, and subject to the same limitations, including exemptions and exceptions, as an individual may bring and obtain with respect to records under—

"(1) section 552a(g)(1)(D) of title 5, United States Code, but only with respect to disclosures intentionally or willfully made in violation of section 552a(b) of such title; and

"(2) subparagraphs (A) and (B) of section 552a(g)(1) of title 5, United States Code, but such an action may only be brought against a designated Federal agency or component.

"(b) Exclusive Remedies.—The remedies set forth in subsection (a) are the exclusive remedies available to a covered person under this section.

"(c) Application of the Privacy Act With Respect to a Covered Person.—For purposes of a civil action described in subsection (a), a covered person shall have the same rights, and be subject to the same limitations, including exemptions and exceptions, as an individual has and is subject to under section 552a of title 5, United States Code, when pursuing the civil remedies described in paragraphs (1) and (2) of subsection (a).

"(d) Designation of Covered Country.—

"(1) In general.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, designate a foreign country or regional economic integration organization, or member country of such organization, as a 'covered country' for purposes of this section if—

"(A)(i) the country or regional economic integration organization, or member country of such organization, has entered into an agreement with the United States that provides for appropriate privacy protections for information shared for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses; or

"(ii) the Attorney General has determined that the country or regional economic integration organization, or member country of such organization, has effectively shared information with the United States for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses and has appropriate privacy protections for such shared information;

"(B) the country or regional economic integration organization, or member country of such organization, permits the transfer of personal data for commercial purposes between the territory of that country or regional economic organization and the territory of the United States, through an agreement with the United States or otherwise; and

"(C) the Attorney General has certified that the policies regarding the transfer of personal data for commercial purposes and related actions of the country or regional economic integration organization, or member country of such organization, do not materially impede the national security interests of the United States.

"(2) Removal of designation.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, revoke the designation of a foreign country or regional economic integration organization, or member country of such organization, as a 'covered country' if the Attorney General determines that such designated 'covered country'—

"(A) is not complying with the agreement described under paragraph (1)(A)(i);

"(B) no longer meets the requirements for designation under paragraph (1)(A)(ii);

"(C) fails to meet the requirements under paragraph (1)(B);

"(D) no longer meets the requirements for certification under paragraph (1)(C); or

"(E) impedes the transfer of information (for purposes of reporting or preventing unlawful activity) to the United States by a private entity or person.

"(e) Designation of Designated Federal Agency or Component.—

"(1) In general.—The Attorney General shall determine whether an agency or component thereof is a 'designated Federal agency or component' for purposes of this section. The Attorney General shall not designate any agency or component thereof other than the Department of Justice or a component of the Department of Justice without the concurrence of the head of the relevant agency, or of the agency to which the component belongs.

"(2) Requirements for designation.—The Attorney General may determine that an agency or component of an agency is a 'designated Federal agency or component' for purposes of this section, if—

"(A) the Attorney General determines that information exchanged by such agency with a covered country is within the scope of an agreement referred to in subsection (d)(1)(A); or

"(B) with respect to a country or regional economic integration organization, or member country of such organization, that has been designated as a 'covered country' under subsection (d)(1)(B), the Attorney General determines that designating such agency or component thereof is in the law enforcement interests of the United States.

"(f) Federal Register Requirement; Nonreviewable Determination.—The Attorney General shall publish each determination made under subsections (d) and (e). Such determination shall not be subject to judicial or administrative review.

"(g) Jurisdiction.—The United States District Court for the District of Columbia shall have exclusive jurisdiction over any claim arising under this section.

"(h) Definitions.—In this Act:

"(1) Agency.—The term 'agency' has the meaning given that term in section 552(f) of title 5, United States Code.

"(2) Covered country.—The term 'covered country' means a country or regional economic integration organization, or member country of such organization, designated in accordance with subsection (d).

"(3) Covered person.—The term 'covered person' means a natural person (other than an individual) who is a citizen of a covered country.

"(4) Covered record.—The term 'covered record' has the same meaning for a covered person as a record has for an individual under section 552a of title 5, United States Code, once the covered record is transferred—

"(A) by a public authority of, or private entity within, a country or regional economic organization, or member country of such organization, which at the time the record is transferred is a covered country; and

"(B) to a designated Federal agency or component for purposes of preventing, investigating, detecting, or prosecuting criminal offenses.

"(5) Designated federal agency or component.—The term 'designated Federal agency or component' means a Federal agency or component of an agency designated in accordance with subsection (e).

"(6) Individual.—The term 'individual' has the meaning given that term in section 552a(a)(2) of title 5, United States Code.

"(i) Preservation of Privileges.—Nothing in this section shall be construed to waive any applicable privilege or require the disclosure of classified information. Upon an agency's request, the district court shall review in camera and ex parte any submission by the agency in connection with this subsection.

"(j) Effective Date.—This Act shall take effect 90 days after the date of the enactment of this Act [Feb. 24, 2016]."

Publication of Guidance Under Subsection (p)(1)(A)(ii)

Pub. L. 101–508, title VII, §7201(b)(2), Nov. 5, 1990, 104 Stat. 1388–334, provided that: "Not later than 90 days after the date of the enactment of this Act [Nov. 5, 1990], the Director of the Office of Management and Budget shall publish guidance under subsection (p)(1)(A)(ii) of section 552a of title 5, United States Code, as amended by this Act."

Limitation on Application of Verification Requirement

Pub. L. 101–508, title VII, §7201(c), Nov. 5, 1990, 104 Stat. 1388–335, provided that: "Section 552a(p)(1)(A)(ii)(II) of title 5, United States Code, as amended by section 2 [probably means section 7201(b)(1) of Pub. L. 101–508], shall not apply to a program referred to in paragraph (1), (2), or (4) of section 1137(b) of the Social Security Act (42 U.S.C. 1320b–7), until the earlier of—

"(1) the date on which the Data Integrity Board of the Federal agency which administers that program determines that there is not a high degree of confidence that information provided by that agency under Federal matching programs is accurate; or

"(2) 30 days after the date of publication of guidance under section 2(b) [probably means section 7201(b)(2) of Pub. L. 101–508, set out as a note above]."

Effective Date Delayed for Certain Education Benefits Computer Matching Programs

Pub. L. 101–366, title II, §206(d), Aug. 15, 1990, 104 Stat. 442, provided that:

"(1) In the case of computer matching programs between the Department of Veterans Affairs and the Department of Defense in the administration of education benefits programs under chapters 30 and 32 of title 38 and chapter 106 of title 10, United States Code, the amendments made to section 552a of title 5, United States Code, by the Computer Matching and Privacy Protection Act of 1988 [Pub. L. 100–503] (other than the amendments made by section 10(b) of that Act) [see Effective Date of 1988 Amendment note above] shall take effect on October 1, 1990.

"(2) For purposes of this subsection, the term 'matching program' has the same meaning provided in section 552a(a)(8) of title 5, United States Code."

Implementation Guidance for 1988 Amendments

Pub. L. 100–503, §6(b), Oct. 18, 1988, 102 Stat. 2513, required the Director, pursuant to section 552a(v) of this title, to develop guidelines and regulations for the use of agencies in implementing amendments made by Pub. L. 100–503 not later than 8 months after Oct. 18, 1988.

Construction of 1988 Amendments

Pub. L. 100–503, §9, Oct. 18, 1988, 102 Stat. 2514, provided that: "Nothing in the amendments made by this Act [amending this section and repealing provisions set out as a note below] shall be construed to authorize—

"(1) the establishment or maintenance by any agency of a national data bank that combines, merges, or links information on individuals maintained in systems of records by other Federal agencies;

"(2) the direct linking of computerized systems of records maintained by Federal agencies;

"(3) the computer matching of records not otherwise authorized by law; or

"(4) the disclosure of records for computer matching except to a Federal, State, or local agency."

Congressional Findings and Statement of Purpose

Pub. L. 93–579, §2, Dec. 31, 1974, 88 Stat. 1896, provided that:

"(a) The Congress finds that—

"(1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies;

"(2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information;

"(3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems;

"(4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and

"(5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use, and dissemination of information by such agencies.

"(b) The purpose of this Act [enacting this section and provisions set out as notes under this section] is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to—

"(1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies;

"(2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent;

"(3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records;

"(4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information;

"(5) permit exemptions from the requirements with respect to records provided in this Act only in those cases where there is an important public policy need for such exemption as has been determined by specific statutory authority; and

"(6) be subject to civil suit for any damages which occur as a result of willful or intentional action which violates any individual's rights under this Act."

Privacy Protection Study Commission

Pub. L. 93–579, §5, Dec. 31, 1974, 88 Stat. 1905, as amended by Pub. L. 95–38, June 1, 1977, 91 Stat. 179, which established the Privacy Protection Study Commission and provided that the Commission study data banks, automated data processing programs and information systems of governmental, regional and private organizations to determine standards and procedures in force for protection of personal information, that the Commission report to the President and Congress the extent to which requirements and principles of section 552a of title 5 should be applied to the information practices of those organizations, and that it make other legislative recommendations to protect the privacy of individuals while meeting the legitimate informational needs of government and society, ceased to exist on September 30, 1977, pursuant to section 5(g) of Pub. L. 93–579.

Guidelines and Regulations for Maintenance of Privacy and Protection of Records of Individuals

Pub. L. 93–579, §6, Dec. 31, 1974, 88 Stat. 1909, which provided that the Office of Management and Budget shall develop guidelines and regulations for use of agencies in implementing provisions of this section and provide continuing assistance to and oversight of the implementation of the provisions of such section by agencies, was repealed by Pub. L. 100–503, §6(c), Oct. 18, 1988, 102 Stat. 2513.

Disclosure of Social Security Number

Pub. L. 93–579, §7, Dec. 31, 1974, 88 Stat. 1909, provided that:

"(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.

"(2) the [The] provisions of paragraph (1) of this subsection shall not apply with respect to—

"(A) any disclosure which is required by Federal statute, or

"(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.

"(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it."

Authorization of Appropriations to Privacy Protection Study Commission

Pub. L. 93–579, §9, Dec. 31, 1974, 88 Stat. 1910, as amended by Pub. L. 94–394, Sept. 3, 1976, 90 Stat. 1198, authorized appropriations for the period beginning July 1, 1975, and ending on September 30, 1977.

Executive Documents

Ex. Ord. No. 9397. Numbering System for Federal Accounts Relating to Individual Persons

Ex. Ord. No. 9397, Nov. 22, 1943, 8 F.R. 16095, as amended by Ex. Ord. No. 13478, §2, Nov. 18, 2008, 73 F.R. 70239, provided:

WHEREAS certain Federal agencies from time to time require in the administration of their activities a system of numerical identification of accounts of individual persons; and

WHEREAS some seventy million persons have heretofore been assigned account numbers pursuant to the Social Security Act; and

WHEREAS a large percentage of Federal employees have already been assigned account numbers pursuant to the Social Security Act; and

WHEREAS it is desirable in the interest of economy and orderly administration that the Federal Government move towards the use of a single, unduplicated numerical identification system of accounts and avoid the unnecessary establishment of additional systems:

NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, it is hereby ordered as follows:

1. Hereafter any Federal department, establishment, or agency may, whenever the head thereof finds it advisable to establish a new system of permanent account numbers pertaining to individual persons, utilize the Social Security Act account numbers assigned pursuant to title 20, section 422.103 of the Code of Federal Regulations and pursuant to paragraph 2 of this order.

2. The Social Security Administration shall provide for the assignment of an account number to each person who is required by any Federal agency to have such a number but who has not previously been assigned such number by the Administration. The Administration may accomplish this purpose by (a) assigning such numbers to individual persons, (b) assigning blocks of numbers to Federal agencies for reassignment to individual persons, or (c) making such other arrangements for the assignment of numbers as it may deem appropriate.

3. The Social Security Administration shall furnish, upon request of any Federal agency utilizing the numerical identification system of accounts provided for in this order, the account number pertaining to any person with whom such agency has an account or the name and other identifying data pertaining to any account number of any such person.

4. The Social Security Administration and each Federal agency shall maintain the confidential character of information relating to individual persons obtained pursuant to the provisions of this order.

5. There shall be transferred to the Social Security Administration, from time to time, such amounts as the Director of the Office of Management and Budget shall determine to be required for reimbursement by any Federal agency for the services rendered by the Administration pursuant to the provisions of this order.

6. This order shall be implemented in accordance with applicable law and subject to the availability of appropriations.

7. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

8. This order shall be published in the Federal Register.

Classified National Security Information

For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, §3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and National Defense.

¹ See References in Text note below.

² So in original. Probably should be "cost-effective."

§552b. Open meetings

(a) For purposes of this section—

(1) the term "agency" means any agency, as defined in section 552(e) ¹ 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.

(Added Pub. L. 94–409, §3(a), Sept. 13, 1976, 90 Stat. 1241; amended Pub. L. 104–66, title III, §3002, Dec. 21, 1995, 109 Stat. 734.)

Editorial Notes

References in Text

Section 552(e) of this title, referred to in subsec. (a)(1), was redesignated section 552(f) of this title by section 1802(b) of Pub. L. 99–570.

180 days after the date of enactment of this section, referred to in subsec. (g), means 180 days after the date of enactment of Pub. L. 94–409, which was approved Sept. 13, 1976.

Amendments

1995—Subsec. (j). Pub. L. 104–66 amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: "Each agency subject to the requirements of this section shall annually report to Congress regarding its compliance with such requirements, including a tabulation of the total number of agency meetings open to the public, the total number of meetings closed to the public, the reasons for closing such meetings, and a description of any litigation brought against the agency under this section, including any costs assessed against the agency in such litigation (whether or not paid by the agency)."

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 94–409, §6, Sept. 13, 1976, 90 Stat. 1248, provided that:

"(a) Except as provided in subsection (b) of this section, the provisions of this Act [see Short Title note set out below] shall take effect 180 days after the date of its enactment [Sept. 13, 1976].

"(b) Subsection (g) of section 552b of title 5, United States Code, as added by section 3(a) of this Act, shall take effect upon enactment [Sept. 13, 1976]."

Short Title of 1976 Amendment

Pub. L. 94–409, §1, Sept. 13, 1976, 90 Stat. 1241, provided: "That this Act [enacting this section, amending sections 551, 552, 556, and 557 of this title, section 10 of Pub. L. 92–463, formerly set out in the Appendix to this title, and section 410 of Title 39, and enacting provisions set out as notes under this section] may be cited as the 'Government in the Sunshine Act'."

Termination of Reporting Requirements

For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which the report required by subsec. (j) of this section is listed on page 151), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title.

Declaration of Policy and Statement of Purpose

Pub. L. 94–409, §2, Sept. 13, 1976, 90 Stat. 1241, provided that: "It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government. It is the purpose of this Act [see Short Title note set out above] to provide the public with such information while protecting the rights of individuals and the ability of the Government to carry out its responsibilities."

¹ See References in Text note below.

§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;

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved; and

(4) the Internet address of a summary of not more than 100 words in length of the proposed rule, in plain language, that shall be posted on the Internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov).

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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 118–9, §2, July 25, 2023, 137 Stat. 55.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1003.	June 11, 1946, ch. 324, §4, 60 Stat. 238.

In subsection (a)(1), the words "or naval" are omitted as included in "military".

In subsection (b), the word "when" is substituted for "in any situation in which".

In subsection (c), the words "for oral presentation" are substituted for "to present the same orally in any manner". The words "sections 556 and 557 of this title apply instead of this subsection" are substituted for "the requirements of sections 1006 and 1007 of this title shall apply in place of the provisions of this subsection".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Section 206(d) of the E-Government Act of 2002, referred to in subsec. (b)(4), is section 206(d) of Pub. L. 107–347, which is set out in a note under section 3501 of Title 44, Public Printing and Documents.

Codification

Section 553 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2245 of Title 7, Agriculture.

Amendments

2023—Subsec. (b)(4). Pub. L. 118–9 added par. (4).

Executive Documents

Executive Order No. 12044

Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as amended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R. 44249, which related to the improvement of Federal regulations, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.

§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;

(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 hearing;

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 384; Pub. L. 95–251, §2(a)(1), Mar. 27, 1978, 92 Stat. 183.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1004.	June 11, 1946, ch. 324, §5, 60 Stat. 239.

In subsection (a)(2), the word "employee" is substituted for "officer or employee of the United States" in view of the definition of "employee" in section 2105.

In subsection (a)(4), the word "naval" is omitted as included in "military".

In subsection (a)(5), the word "or" is substituted for "and" since the exception is applicable if any one of the factors are involved.

In subsection (a)(6), the word "worker" is substituted for "employee", since the latter is defined in section 2105 as meaning Federal employees.

In subsection (b), the word "When" is substituted for "In instances in which".

In subsection (c)(2), the comma after the word "hearing" is omitted to correct an editorial error.

In subsection (d), the words "The employee" and "such an employee" are substituted in the first two sentences for "The same officers" and "such officers" in view of the definition of "employee" in section 2105. The word "officer" is omitted in the third and fourth sentences as included in "employee" as defined in section 2105. The prohibition in the third and fourth sentences is restated in positive form. In paragraph (C) of the last sentence, the words "in any manner" are omitted as surplusage.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Codification

Section 554 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2246 of Title 7, Agriculture.

Amendments

1978—Subsec. (a)(2). Pub. L. 95–251 substituted "administrative law judge" for "hearing examiner".

¹ So in original.

§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 proceeding. 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 385.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1005.	June 11, 1946, ch. 324, §6, 60 Stat. 240.

In subsection (b), the words "is entitled" are substituted for "shall be accorded the right". The word "officers" is omitted as included in "employees" in view of the definition of "employee" in section 2105. The words "With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time" are substituted for "with reasonable dispatch" and "except that due regard shall be had for the convenience and necessity of the parties or their representatives". The prohibition in the last sentence is restated in positive form and the words "This subsection does not" are substituted for "Nothing herein shall be construed either to".

In subsection (c), the words "in any manner or for any purpose" are omitted as surplusage.

In subsection (e), the word "brief" is substituted for "simple". The words "of the grounds for denial" are substituted for "of procedural or other grounds" for clarity.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Codification

Section 555 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2247 of Title 7, Agriculture.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 386; Pub. L. 94–409, §4(c), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–251, §2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 101–552, §4(a), Nov. 15, 1990, 104 Stat. 2737.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1006.	June 11, 1946, ch. 324, §7, 60 Stat. 241.

In subsection (b), the words "hearing examiners" are substituted for "examiners" in paragraph (3) for clarity. The prohibition in the second sentence is restated in positive form and the words "This subchapter does not" are substituted for "but nothing in this chapter shall be deemed to". The words "employee" and "employees" are substituted for "officer" and "officers" in view of the definition of "employee" in section 2105. The sentence "A presiding or participating employee may at any time disqualify himself." is substituted for the words "Any such officer may at any time withdraw if he deems himself disqualified."

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1990—Subsec. (c)(6). Pub. L. 101–552, §4(a)(1), inserted before semicolon at end "or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter".

Subsec. (c)(7) to (11). Pub. L. 101–552, §4(a)(2), added pars. (7) and (8) and redesignated former pars. (7) to (9) as (9) to (11), respectively.

1978—Subsec. (b)(3). Pub. L. 95–251 substituted "administrative law judges" for "hearing examiners".

1976—Subsec. (d). Pub. L. 94–409 inserted provisions relating to consideration by agency of a violation under section 557(d) of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

Executive Documents

Hearing Examiners Employed by Department of Agriculture

Functions vested by this subchapter in hearing examiners employed by Department of Agriculture not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Commerce

Functions vested by this subchapter in hearing examiners employed by Department of Commerce not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Commerce by 1950 Reorg. Plan No. 5, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the Interior

Functions vested by this subchapter in hearing examiners employed by Department of the Interior not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Interior by 1950 Reorg. Plan No. 3, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Justice

Functions vested by this subchapter in hearing examiners employed by Department of Justice not included in functions of officers, agencies, and employees of that Department transferred to Attorney General by 1950 Reorg. Plan No. 2, §1, eff. May 24, 1950, 15 F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Labor

Functions vested by this subchapter in hearing examiners employed by Department of Labor not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Labor by 1950 Reorg. Plan No. 6, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the Treasury

Functions vested by this subchapter in hearing examiners employed by Department of the Treasury not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Treasury by 1950 Reorg. Plan. No. 26, §1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title.

§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

(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 387; Pub. L. 94–409, § 4(a), Sept. 13, 1976, 90 Stat. 1246.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1007.	June 11, 1946, ch. 324, §8, 60 Stat. 242.

In subsection (b), the word "employee" is substituted for "officer" and "officers" in view of the definition of "employee" in section 2105. The word "either" is added after the word "requires" in the first sentence to eliminate the need for parentheses. The words "the presiding employee or an employee qualified to preside at hearings under section 556 of this title" are substituted for "such officers" in the last sentence. The word "initial" is omitted before "decision", the final word in the first sentence and the sixth word of the fourth sentence, to avoid confusion between the "initial decision" of the presiding employee and the "initial decision" of the agency.

In subsection (c), the word "employees" is substituted for "officers" in view of the definition of "employee" in section 2105.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Codification

Section 557 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2207 of Title 7, Agriculture.

Section 557a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2208 of Title 7.

Amendments

1976—Subsec. (d). Pub. L. 94–409 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1008.	June 11, 1946, ch. 324, §9, 60 Stat. 242.

In subsection (b), the prohibition is restated in positive form.

In subsection (c), the words "within a reasonable time" are substituted for "with reasonable dispatch". The last two sentences are restated for conciseness and clarity and to restate the prohibition in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Codification

Section 558 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2209 of Title 7, Agriculture.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388; Pub. L. 90–623, §1(1), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95–251, §2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title VIII, §801(a)(3)(B)(iii), Oct. 13, 1978, 92 Stat. 1221.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1011.	June 11, 1946, ch. 324, §12, 60 Stat. 244.

In the first and last sentences, the words "This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5362, and 7521, and the provisions of section 5335(a)(B) of this title that relate to hearing examiners" are substituted for "this Act" to reflect the codification of the Act in this title. The words "to diminish the constitutional rights of any person or" are omitted as surplusage as there is nothing in the Act that can reasonably be construed to diminish those rights and because a statute may not operate in derogation of the Constitution.

The third sentence of former section 1011 is omitted as covered by technical section 7. The sixth sentence of former section 1011 is omitted as executed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "5372" for "5362" wherever appearing.

Pub. L. 95–251 substituted "administrative law judges" for "hearing examiners" wherever appearing.

1968—Pub. L. 90–623 inserted "of this title" after "7521" wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after the 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE

Editorial Notes

Prior Provisions

A prior subchapter III (§571 et seq.) was redesignated subchapter V (§591 et seq.) of this chapter.

Amendments

1992—Pub. L. 102–354, §3(a)(1), Aug. 26, 1992, 106 Stat. 944, redesignated subchapter IV of this chapter relating to negotiated rulemaking procedure as this subchapter.

§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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4970, §581; renumbered §561, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 581 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal; Savings Provision

Pub. L. 101–648, §5, Nov. 29, 1990, 104 Stat. 4976, as amended by Pub. L. 102–354, §5(a)(2), Aug. 26, 1992, 106 Stat. 945, which provided that subchapter III of chapter 5 of title 5 and the table of sections corresponding to such subchapter, were repealed, effective 6 years after Nov. 29, 1990, except for then pending proceedings, was repealed by Pub. L. 104–320, §11(a), Oct. 19, 1996, 110 Stat. 3873.

Short Title of 1992 Amendment

Pub. L. 102–354, §1, Aug. 26, 1992, 106 Stat. 944, provided that: "This Act [amending sections 565, 568, 569, 571, 577, 580, 581, and 593 of this title, section 10 of Title 9, Arbitration, and section 173 of Title 29, Labor, renumbering sections 571 to 576, 581 to 590, and 581 to 593 as 591 to 596, 561 to 570, and 571 to 583, respectively, of this title, and amending provisions set out as notes under this section and section 571 of this title] may be cited as the 'Administrative Procedure Technical Amendments Act of 1991'."

Short Title of 1990 Amendment

Pub. L. 101–648, §1, Nov. 29, 1990, 104 Stat. 4969, provided that: "This Act [enacting this subchapter] may be cited as the 'Negotiated Rulemaking Act of 1990'."

Congressional Findings

Pub. L. 101–648, §2, Nov. 29, 1990, 104 Stat. 4969, as amended by Pub. L. 117–286, §4(a)(4), Dec. 27, 2022, 136 Stat. 4305, provided that: "The Congress makes the following findings:

"(1) Government regulation has increased substantially since the enactment of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this title].

"(2) Agencies currently use rulemaking procedures that may discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions and to engage in expensive and time-consuming litigation over agency rules.

"(3) Adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.

"(4) Negotiated rulemaking, in which the parties who will be significantly affected by a rule participate in the development of the rule, can provide significant advantages over adversarial rulemaking.

"(5) Negotiated rulemaking can increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement or challenge such rules in court. It may also shorten the amount of time needed to issue final rules.

"(6) Agencies have the authority to establish negotiated rulemaking committees under the laws establishing such agencies and their activities and under chapter 10 of title 5, United States Code. Several agencies have successfully used negotiated rulemaking. The process has not been widely used by other agencies, however, in part because such agencies are unfamiliar with the process or uncertain as to the authority for such rulemaking."

Authorization of Appropriations

Pub. L. 101–648, §4, Nov. 29, 1990, 104 Stat. 4976, as amended by Pub. L. 102–354, §5(a)(1), Aug. 26, 1992, 106 Stat. 945, authorized additional appropriations to Administrative Conference of the United States to carry out Pub. L. 101–648 in fiscal years 1991, 1992, and 1993.

§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 chapter 10 of this title 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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4970, §582; renumbered §562, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 117–286, §4(a)(5), Dec. 27, 2022, 136 Stat. 4305.)

Editorial Notes

Amendments

2022—Par. (7). Pub. L. 117–286 substituted "chapter 10 of this title" for "the Federal Advisory Committee Act".

1992—Pub. L. 102–354 renumbered section 582 of this title as this section.

§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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4970, §583; renumbered §563, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 583 of this title as this section.

Statutory Notes and Related Subsidiaries

Negotiated Rulemaking Committees

Pub. L. 104–320, §11(e), Oct. 19, 1996, 110 Stat. 3874, as amended by Pub. L. 117–286, §4(a)(6), Dec. 27, 2022, 136 Stat. 4305, provided that: "The Director of the Office of Management and Budget shall—

"(1) within 180 days of the date of the enactment of this Act [Oct. 19, 1996], take appropriate action to expedite the establishment of negotiated rulemaking committees and committees established to resolve disputes under the Administrative Dispute Resolution Act [Pub. L. 101–552, see Short Title note set out under section 571 of this title], including, with respect to negotiated rulemaking committees, eliminating any redundant administrative requirements related to filing a committee charter under section 1008 of title 5, United States Code, and providing public notice of such committee under section 564 of title 5, United States Code; and

"(2) within one year of the date of the enactment of this Act, submit recommendations to Congress for any necessary legislative changes."

§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) Applications for Membership or ¹ 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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4971, §584; renumbered §564, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 584 of this title as this section.

¹ So in original. Probably should be "on".

§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 chapter 10 of this title 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.

(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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4972, §585; renumbered §565 and amended Pub. L. 102–354, §3(a)(2), (3), Aug. 26, 1992, 106 Stat. 944; Pub. L. 117–286, §4(a)(7), Dec. 27, 2022, 136 Stat. 4305.)

Editorial Notes

Amendments

2022—Subsec. (a)(1). Pub. L. 117–286 substituted "chapter 10 of this title" for "the Federal Advisory Committee Act".

1992—Pub. L. 102–354, §3(a)(2), renumbered section 585 of this title as this section.

Subsec. (a)(1). Pub. L. 102–354, §3(a)(3), substituted "section 564" for "section 584".

¹ So in original. Probably should be "negotiated".

§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 1009(e) of this title, 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 1009(b) and (c) of this title, 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 1009(b) and (c) of this title.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4973, §586; renumbered §566, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 117–286, §4(a)(8), Dec. 27, 2022, 136 Stat. 4305.)

Editorial Notes

Amendments

2022—Subsec. (c). Pub. L. 117–286, §4(a)(8)(A), substituted "section 1009(e) of this title," for "section 10(e) of the Federal Advisory Committee Act,".

Subsec. (d)(3). Pub. L. 117–286, §4(a)(8)(B), substituted "section 1009(b) and (c) of this title," for "section 10(b) and (c) of the Federal Advisory Committee Act,".

Subsec. (g). Pub. L. 117–286, §4(a)(8)(C), substituted "section 1009(b) and (c) of this title." for "section 10(b) and (c) of the Federal Advisory Committee Act."

1992—Pub. L. 102–354 renumbered section 586 of this title as this section.

§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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4974, §587; renumbered §567, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 587 of this title as this section.

§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 1006(d) of this title, 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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4974, §588; renumbered §568 and amended Pub. L. 102–354, §3(a)(2), (4), Aug. 26, 1992, 106 Stat. 944; Pub. L. 117–286, §4(a)(9), Dec. 27, 2022, 136 Stat. 4306.)

Editorial Notes

Amendments

2022—Subsec. (c). Pub. L. 117–286 substituted "section 1006(d) of this title," for "section 7(d) of the Federal Advisory Committee Act," in introductory provisions.

1992—Pub. L. 102–354, §3(a)(2), renumbered section 588 of this title as this section.

Subsec. (d). Pub. L. 102–354, §3(a)(4), substituted "section 569" for "section 589".

§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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4975, §589; renumbered §569 and amended Pub. L. 102–354, §3(a)(2), (5), Aug. 26, 1992, 106 Stat. 944; Pub. L. 104–320, §11(b)(1), Oct. 19, 1996, 110 Stat. 3873.)

Editorial Notes

Amendments

1996—Pub. L. 104–320 in section catchline substituted "Encouraging negotiated rulemaking" for "Role of the Administrative Conference of the United States and other entities", and in text added subsecs. (a) and (b) and struck out former subsecs. (a) to (g) which related to: in subsec. (a), consultation by agencies; in subsec. (b), roster of potential conveners and facilitators; in subsec. (c), procedures to obtain conveners and facilitators; in subsec. (d), compilation of data on negotiated rulemaking and report to Congress; in subsec. (e), training in negotiated rulemaking; in subsec. (f), payment of expenses of agencies; and in subsec. (g), use of funds of the conference.

1992—Pub. L. 102–354, §3(a)(2), renumbered section 589 of this title as this section.

Subsec. (d)(2). Pub. L. 102–354, §3(a)(5)(A), substituted "section 566" for "section 586".

Subsec. (f)(2). Pub. L. 102–354, §3(a)(5)(B), substituted "section 568(c)" for "section 588(c)".

Subsec. (g). Pub. L. 102–354, §3(a)(5)(C), substituted "section 595(c)(12)" for "section 575(c)(12)".

§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.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104 Stat. 4976, §590; renumbered §570, Pub. L. 102–354, §3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 590 of this title as this section.

§570a. Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.

(Added Pub. L. 104–320, §11(d)(1), Oct. 19, 1996, 110 Stat. 3873.)

SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS

Editorial Notes

Codification

Another subchapter IV (§581 et seq.) relating to negotiated rulemaking procedure was redesignated subchapter III (§561 et seq.) of this chapter.

Amendments

1992—Pub. L. 102–354, §3(b)(1), Aug. 26, 1992, 106 Stat. 944, transferred this subchapter so as to appear immediately after subchapter III of this chapter.

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2738, §581; renumbered §571 and amended Pub. L. 102–354, §§3(b)(2), 5(b)(1), (2), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L. 104–320, §2, Oct. 19, 1996, 110 Stat. 3870.)

Editorial Notes

Codification

Section 571 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2256 of Title 7, Agriculture.

Prior Provisions

A prior section 571 was renumbered section 591 of this title.

Amendments

1996—Par. (3). Pub. L. 104–320, §2(1), struck out ", in lieu of an adjudication as defined in section 551(7) of this title," after "any procedure that is used", struck out "settlement negotiations," after "but not limited to," and substituted "arbitration, and use of ombuds" for "and arbitration".

Par. (8). Pub. L. 104–320, §2(2), substituted "decision;" for "decision," at end of subpar. (B), and struck out closing provisions which read as follows: "except that such term shall not include any matter specified under section 2302 or 7121(c) of this title;".

1992—Pub. L. 102–354, §3(b)(2), renumbered section 581 of this title as this section.

Par. (3). Pub. L. 102–354, §5(b)(1), inserted comma after "including".

Par. (8). Pub. L. 102–354, §5(b)(2), amended par. (8) generally. Prior to amendment, par. (8) read as follows: " '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 between the agency and persons who would be substantially affected by the decision but shall not extend to matters specified under the provisions of sections 2302 and 7121(c) of title 5;".

Statutory Notes and Related Subsidiaries

Termination Date; Savings Provision

Pub. L. 101–552, §11, Nov. 15, 1990, 104 Stat. 2747, as amended by Pub. L. 104–106, div. D, title XLIII, §4321(i)(5), Feb. 10, 1996, 110 Stat. 676, which provided that the authority of agencies to use dispute resolution proceedings under this Act [see Short Title note below] was to terminate on Oct. 1, 1995, except with respect to pending proceedings, was repealed by Pub. L. 104–320, §9, Oct. 19, 1996, 110 Stat. 3872.

Short Title of 1996 Amendment

Pub. L. 104–320, §1, Oct. 19, 1996, 110 Stat. 3870, provided that: "This Act [enacting sections 570a and 584 of this title, amending this section, sections 569, 573 to 575, 580, 581, and 583 of this title, section 2304 of Title 10, Armed Forces, section 1491 of Title 28, Crimes and Criminal Procedure, section 173 of Title 29, Labor, section 3556 of Title 31, Money and Finance, and sections 253 and 605 of Title 41, Public Contracts, repealing section 582 of this title, enacting provisions set out as notes under section 563 of this title, section 1491 of Title 28, and section 3556 of Title 31, amending provisions set out as notes under this section, and repealing provisions set out as notes under this section and section 561 of this title] may be cited as the 'Administrative Dispute Resolution Act of 1996'."

Short Title

Pub. L. 101–552, §1, Nov. 15, 1990, 104 Stat. 2736, provided that: "This Act [enacting this subchapter, amending section 556 of this title, section 10 of Title 9, Arbitration, section 2672 of Title 28, Judiciary and Judicial Procedure, section 173 of Title 29, Labor, section 3711 of Title 31, Money and Finance, and sections 605 and 607 of Title 41, Public Contracts, and enacting provisions set out as notes under this section] may be cited as the 'Administrative Dispute Resolution Act'."

Congressional Findings

Pub. L. 101–552, §2, Nov. 15, 1990, 104 Stat. 2736, provided that: "The Congress finds that—

"(1) administrative procedure, as embodied in chapter 5 of title 5, United States Code, and other statutes, is intended to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative to litigation in the Federal courts;

"(2) administrative proceedings have become increasingly formal, costly, and lengthy resulting in unnecessary expenditures of time and in a decreased likelihood of achieving consensual resolution of disputes;

"(3) alternative means of dispute resolution have been used in the private sector for many years and, in appropriate circumstances, have yielded decisions that are faster, less expensive, and less contentious;

"(4) such alternative means can lead to more creative, efficient, and sensible outcomes;

"(5) such alternative means may be used advantageously in a wide variety of administrative programs;

"(6) explicit authorization of the use of well-tested dispute resolution techniques will eliminate ambiguity of agency authority under existing law;

"(7) Federal agencies may not only receive the benefit of techniques that were developed in the private sector, but may also take the lead in the further development and refinement of such techniques; and

"(8) the availability of a wide range of dispute resolution procedures, and an increased understanding of the most effective use of such procedures, will enhance the operation of the Government and better serve the public."

Promotion of Alternative Means of Dispute Resolution

Pub. L. 101–552, §3, Nov. 15, 1990, 104 Stat. 2736, as amended by Pub. L. 104–320, §4(a), Oct. 19, 1996, 110 Stat. 3871, provided that:

"(a) Promulgation of Agency Policy.—Each agency shall adopt a policy that addresses the use of alternative means of dispute resolution and case management. In developing such a policy, each agency shall—

"(1) consult with the agency designated by, or the interagency committee designated or established by, the President under section 573 of title 5, United States Code, to facilitate and encourage agency use of alternative dispute resolution under subchapter IV of chapter 5 of such title; and

"(2) examine alternative means of resolving disputes in connection with—

"(A) formal and informal adjudications;

"(B) rulemakings;

"(C) enforcement actions;

"(D) issuing and revoking licenses or permits;

"(E) contract administration;

"(F) litigation brought by or against the agency; and

"(G) other agency actions.

"(b) Dispute Resolution Specialists.—The head of each agency shall designate a senior official to be the dispute resolution specialist of the agency. Such official shall be responsible for the implementation of—

"(1) the provisions of this Act [see Short Title note above] and the amendments made by this Act; and

"(2) the agency policy developed under subsection (a).

"(c) Training.—Each agency shall provide for training on a regular basis for the dispute resolution specialist of the agency and other employees involved in implementing the policy of the agency developed under subsection (a). Such training should encompass the theory and practice of negotiation, mediation, arbitration, or related techniques. The dispute resolution specialist shall periodically recommend to the agency head agency employees who would benefit from similar training.

"(d) Procedures for Grants and Contracts.—

"(1) Each agency shall review each of its standard agreements for contracts, grants, and other assistance and shall determine whether to amend any such standard agreements to authorize and encourage the use of alternative means of dispute resolution.

"(2)(A) Within 1 year after the date of the enactment of this Act [Nov. 15, 1990], the Federal Acquisition Regulation shall be amended, as necessary, to carry out this Act [see Short Title note above] and the amendments made by this Act.

"(B) For purposes of this section, the term 'Federal Acquisition Regulation' means the single system of Government-wide procurement regulation referred to in section 6(a) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405(a)) [now 41 U.S.C. 1121(a) to (c)(1)]."

Use of Nonattorneys

Pub. L. 101–552, §9, Nov. 15, 1990, 104 Stat. 2747, provided that:

"(a) Representation of Parties.—Each agency, in developing a policy on the use of alternative means of dispute resolution under this Act [see Short Title note above], shall develop a policy with regard to the representation by persons other than attorneys of parties in alternative dispute resolution proceedings and shall identify any of its administrative programs with numerous claims or disputes before the agency and determine—

"(1) the extent to which individuals are represented or assisted by attorneys or by persons who are not attorneys; and

"(2) whether the subject areas of the applicable proceedings or the procedures are so complex or specialized that only attorneys may adequately provide such representation or assistance.

"(b) Representation and Assistance by Nonattorneys.—A person who is not an attorney may provide representation or assistance to any individual in a claim or dispute with an agency, if—

"(1) such claim or dispute concerns an administrative program identified under subsection (a);

"(2) such agency determines that the proceeding or procedure does not necessitate representation or assistance by an attorney under subsection (a)(2); and

"(3) such person meets any requirement of the agency to provide representation or assistance in such a claim or dispute.

"(c) Disqualification of Representation or Assistance.—Any agency that adopts regulations under subchapter IV of chapter 5 of title 5, United States Code, to permit representation or assistance by persons who are not attorneys shall review the rules of practice before such agency to—

"(1) ensure that any rules pertaining to disqualification of attorneys from practicing before the agency shall also apply, as appropriate, to other persons who provide representation or assistance; and

"(2) establish effective agency procedures for enforcing such rules of practice and for receiving complaints from affected persons."

Definitions

Pub. L. 101–552, §10, Nov. 15, 1990, 104 Stat. 2747, as amended by Pub. L. 102–354, §5(b)(6), Aug. 26, 1992, 106 Stat. 946, provided that: "As used in this Act [see Short Title note above], the terms 'agency', 'administrative program', and 'alternative means of dispute resolution' have the meanings given such terms in section 571 of title 5, United States Code (enacted as section 581 of title 5, United States Code, by section 4(b) of this Act, and redesignated as section 571 of such title by section 3(b) of the Administrative Procedure Technical Amendments Act of 1991 [Pub. L. 102–354])."

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2739, §582; renumbered §572, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Codification

Section 572 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2257 of Title 7, Agriculture.

Prior Provisions

A prior section 572 was renumbered section 592 of this title.

Amendments

1992—Pub. L. 102–354 renumbered section 582 of this title as this section.

§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 of 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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2739, §583; renumbered §573, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, §7(b), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes

Codification

Section 573 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2258 of Title 7, Agriculture.

Prior Provisions

A prior section 573 was renumbered section 593 of this title.

Amendments

1996—Subsec. (c). Pub. L. 104–320, §7(b)(1), added subsec. (c) and struck out former subsec. (c) which related to power of Administrative Conference of the United States to establish and utilize standards for neutrals and to enter into contracts for services of neutrals.

Subsec. (e). Pub. L. 104–320, §7(b)(2), struck out "on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual" after "contract with any person".

1992—Pub. L. 102–354 renumbered section 583 of this title as this section.

§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 communication, 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 proceeding 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), shall not be admissible in any proceeding relating to the issues in controversy with respect to which the communication was made.

(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).

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2740, §584; renumbered §574, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, §3, Oct. 19, 1996, 110 Stat. 3870.)

Editorial Notes

Codification

Section 574 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2255 of Title 7, Agriculture.

Section 574a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2226 of Title 7.

Prior Provisions

A prior section 574 was renumbered section 594 of this title.

Amendments

1996—Subsecs. (a), (b). Pub. L. 104–320, §3(a), in introductory provisions struck out "any information concerning" after "be required to disclose".

Subsec. (b)(7). Pub. L. 104–320, §3(b), amended par. (7) generally. Prior to amendment, par. (7) read as follows: "the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding".

Subsec. (d). Pub. L. 104–320, §3(c), designated existing provisions as par. (1) and added par. (2).

Subsec. (j). Pub. L. 104–320, §3(d), amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: "This section shall not be considered a statute specifically exempting disclosure under section 552(b)(3) of this title."

1992—Pub. L. 102–354 renumbered section 584 of this title as this section.

§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 submitted to the arbitrator 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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2742, §585; renumbered §575, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, §8(c), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes

Codification

Section 575 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2259 of Title 7, Agriculture.

Prior Provisions

A prior section 575 was renumbered section 595 of this title.

Amendments

1996—Subsec. (a)(2). Pub. L. 104–320, §8(c)(1), (2), substituted "The" for "Any" and inserted at end "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."

Subsec. (b). Pub. L. 104–320, §8(c)(3), in introductory provisions substituted "shall not offer to use arbitration for the resolution of issues in controversy unless" for "may offer to use arbitration for the resolution of issues in controversy, if", and in par. (1) substituted "would otherwise have authority" for "has authority".

Subsec. (c). Pub. L. 104–320, §8(c)(4), added subsec. (c).

1992—Pub. L. 102–354 renumbered section 585 of this title as this section.

§576. Enforcement of arbitration agreements

An agreement to arbitrate a matter to which this subchapter applies is enforceable 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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2742, §586; renumbered §576, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Codification

Section 576 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2260 of Title 7, Agriculture, and subsequently repealed by Pub. L. 107–171, title X, §10418(a)(3), May 13, 2002, 116 Stat. 507.

Prior Provisions

A prior section 576 was renumbered section 596 of this title.

Amendments

1992—Pub. L. 102–354 renumbered section 586 of this title as this section.

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2742, §587; renumbered §577 and amended Pub. L. 102–354, §3(b)(2), (3), Aug. 26, 1992, 106 Stat. 944, 945.)

Editorial Notes

Amendments

1992—Pub. L. 102–354, §3(b)(2), renumbered section 587 of this title as this section.

Subsec. (b). Pub. L. 102–354, §3(b)(3), substituted "section 573" for "section 583".

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2742, §588; renumbered §578, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 588 of this title as this section.

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2742, §589; renumbered §579, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

Amendments

1992—Pub. L. 102–354 renumbered section 589 of this title as this section.

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2743, §590; renumbered §580 and amended Pub. L. 102–354, §§3(b)(2), 5(b)(3), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L. 104–320, §8(a), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes

Amendments

1996—Subsec. (c). Pub. L. 104–320, §8(a), redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: "The head of any agency that is a party to an arbitration proceeding conducted under this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to the proceeding before the award becomes final by serving on all other parties a written notice to that effect, in which case the award shall be null and void. Notice shall be provided to all parties to the arbitration proceeding of any request by a party, nonparty participant or other person that the agency head terminate the arbitration proceeding or vacate the award. An employee or agent engaged in the performance of investigative or prosecuting functions for an agency may not, in that or a factually related case, advise in a decision under this subsection to terminate an arbitration proceeding or to vacate an arbitral award, except as witness or counsel in public proceedings."

Subsecs. (d), (e). Pub. L. 104–320, §8(a)(2), redesignated subsec. (e) as (d). Former subsec. (d) redesignated (c).

Subsecs. (f), (g). Pub. L. 104–320, §8(a)(1), struck out subsecs. (f) and (g) which read as follows:

"(f) An arbitral award that is vacated under subsection (c) shall not be admissible in any proceeding relating to the issues in controversy with respect to which the award was made.

"(g) If an agency head vacates an award under subsection (c), a party to the arbitration (other than the United States) may within 30 days of such action petition the agency head for an award of fees and other expenses (as defined in section 504(b)(1)(A) of this title) incurred in connection with the arbitration proceeding. The agency head shall award the petitioning party those fees and expenses that would not have been incurred in the absence of such arbitration proceeding, unless the agency head or his or her designee finds that special circumstances make such an award unjust. The procedures for reviewing applications for awards shall, where appropriate, be consistent with those set forth in subsection (a)(2) and (3) of section 504 of this title. Such fees and expenses shall be paid from the funds of the agency that vacated the award."

1992—Pub. L. 102–354, §3(b)(2), renumbered section 590 of this title as this section.

Subsec. (g). Pub. L. 102–354, §5(b)(3), substituted "fees and other expenses" for "attorney fees and expenses".

§581. Judicial Review ¹

(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) 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) ² of title 9.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2744, §591; renumbered §581 and amended Pub. L. 102–354, §3(b)(2), (4), Aug. 26, 1992, 106 Stat. 944, 945; Pub. L. 104–320, §8(b), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes

References in Text

Section 10(b) of title 9, referred to in subsec. (b), was redesignated section 10(c) of title 9 by Pub. L. 107–169, §1(4), May 7, 2002, 116 Stat. 132.

Prior Provisions

A prior section 581 was renumbered section 571 of this title.

Another prior section 581 was renumbered section 561 of this title.

Amendments

1996—Subsec. (b). Pub. L. 104–320, which directed that section 581(d) of this title be amended by striking "(1)" after "(b)" and by striking par. (2), was executed to subsec. (b) of this section to reflect the probable intent of Congress. Prior to amendment, par. (2) read as follows: "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."

1992—Pub. L. 102–354, §3(b)(2), renumbered section 591 of this title as this section.

Subsec. (b)(2). Pub. L. 102–354, §3(b)(4), substituted "section 580" for "section 590".

¹ So in original. Probably should not be capitalized.

² See References in Text note below.

[§582. Repealed. Pub. L. 104–320, §4(b)(1), Oct. 19, 1996, 110 Stat. 3871]

Section, added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2744, §592; renumbered §582, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944, related to compilation of data on use of alternative means of dispute resolution in conducting agency proceedings.

§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.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104 Stat. 2745, §593; renumbered §583, Pub. L. 102–354, §3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, §5, Oct. 19, 1996, 110 Stat. 3871.)

Editorial Notes

Prior Provisions

Prior sections 583 to 590 were renumbered sections 573 to 580 of this title, respectively.

Other prior sections 583 to 590 were renumbered sections 563 to 570 of this title, respectively.

Amendments

1996—Pub. L. 104–320 inserted "State, local, and tribal governments," after "other Federal agencies,".

1992—Pub. L. 102–354 renumbered section 593 of this title as this section.

§584. Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.

(Added Pub. L. 104–320, §10(a), Oct. 19, 1996, 110 Stat. 3873.)

SUBCHAPTER V—ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Editorial Notes

Amendments

1992—Pub. L. 102–354, §2(1), Aug. 26, 1992, 106 Stat. 944, redesignated subchapter III of this chapter as this subchapter.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States

Pub. L. 104–52, title IV, Nov. 19, 1995, 109 Stat. 480, authorized $600,000 for the prompt and orderly termination of the Administrative Conference of the United States by Feb. 1, 1996.

§591. Purposes

The purposes of this subchapter are—

(1) 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;

(2) to promote more effective public participation and efficiency in the rulemaking process;

(3) to reduce unnecessary litigation in the regulatory process;

(4) to improve the use of science in the regulatory process; and

(5) to improve the effectiveness of laws applicable to the regulatory process.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388, §571; renumbered §591, Pub. L. 102–354, §2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L. 108–401, §2(a), Oct. 30, 2004, 118 Stat. 2255.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1045(e).	Aug. 30, 1964, Pub. L. 88–499, §2(e), 78 Stat. 615.

The words "this subchapter" are substituted for "this Act" to reflect the codification of the Administrative Conference Act in this subchapter.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Prior Provisions

A prior section 591 was renumbered section 581 of this title.

Amendments

2004—Pub. L. 108–401 amended section catchline and text generally. Prior to amendment, text read as follows: "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."

1992—Pub. L. 102–354 renumbered section 571 of this title as this section.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388, §572; renumbered §592, Pub. L. 102–354, §2(2), Aug. 26, 1992, 106 Stat. 944.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1045a.	Aug. 30, 1964, Pub. L. 88–499, §3, 78 Stat. 615.

In paragraph (1), the words "subchapter II of this chapter" are substituted for "the Administrative Procedure Act (5 U.S.C. 1001–1011)" to reflect the codification of the Act in this title. The word "naval" is omitted as included in "military".

In paragraph (2), the words "section 551(1) of this title" are substituted for "section 2(a) of the Administrative Procedure Act (5 U.S.C. 1001(a))".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Prior Provisions

A prior section 592 was renumbered section 582 of this title and was subsequently repealed.

Amendments

1992—Pub. L. 102–354 renumbered section 572 of this title as this section.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 389, §573; Pub. L. 99–470, §1, Oct. 14, 1986, 100 Stat. 1198; renumbered §593 and amended Pub. L. 102–354, §2(2), (3), Aug. 26, 1992, 106 Stat. 944.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1045b.	Aug. 30, 1964, Pub. L. 88–499, §4, 78 Stat. 616.

In subsection (a), the words "There is hereby established" are omitted as executed. The words "hereinafter referred to as the 'Conference' " are omitted as unnecessary as the title "Administrative Conference of the United States" is fully set out the first time it is used in each section of this chapter.

In subsection (b)(4), the words "referred to in section 575(b) of this title" are inserted for clarity.

In subsection (c), the words "by section 5703 of this title" are substituted for "by law (5 U.S.C. 73b–2)" to reflect the codification of that section in title 5.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Prior Provisions

A prior section 593 was renumbered section 583 of this title.

Amendments

1992—Pub. L. 102–354, §2(2), renumbered section 573 of this title as this section.

Subsec. (b)(4). Pub. L. 102–354, §2(3), substituted "section 595(b)" for "section 575(b)".

1986—Subsec. (a). Pub. L. 99–470, §1(a)(1), substituted "101" for "91".

Subsec. (b)(6). Pub. L. 99–470, §1(a)(2), substituted "40" for "36".

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see note set out preceding section 591 of this title.

Development of Administrative Conference

The Administrative Conference of the United States, established as a permanent body by the Administrative Conference Act, Pub. L. 88–499, Aug. 30, 1964, 78 Stat. 615, was preceded by two temporary Conferences. The first was called by President Eisenhower in 1953 and adopted a final report which was transmitted to the President who acknowledged receipt of it on March 3, 1955. The second was established by President Kennedy by Executive Order No. 10934, Apr. 14, 1961, 26 F.R. 3233, which, by its terms, called for a final report to the President by December 31, 1962. The final report recommended a continuing Conference consisting of both government personnel and outside experts.

§594. Powers and duties of the Conference

To carry out the purposes 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) 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—

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 390, §574; Pub. L. 101–422, §2, Oct. 12, 1990, 104 Stat. 910; renumbered §594, Pub. L. 102–354, §2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L. 102–403, Oct. 9, 1992, 106 Stat. 1968; Pub. L. 108–401, §2(b)(1), Oct. 30, 2004, 118 Stat. 2255.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1045c.	Aug. 30, 1964, Pub. L. 88–499, §5, 78 Stat. 616.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2004—Pub. L. 108–401 substituted "purposes" for "purpose" in introductory provisions.

1992—Pub. L. 102–354 renumbered section 574 of this title as this section.

Par. (4). Pub. L. 102–403 amended par. (4) generally. Prior to amendment, par. (4) read as follows: "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 paragraphs (1), (2), and (3)."

Par. (5). Pub. L. 102–403 which directed addition of par. (5) at end of section, was executed by adding par. (5) after par. (4) and before concluding provisions, to reflect the probable intent of Congress.

1990—Pub. L. 101–422 added par. (4) and concluding provisions.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see note set out preceding section 591 of this title.

Transfer of Functions

United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau) abolished and functions transferred to Secretary of State, see sections 6531 and 6532 of Title 22, Foreign Relations and Intercourse.

§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, or 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 390, §575; Pub. L. 92–526, §1, Oct. 21, 1972, 86 Stat. 1048; Pub. L. 97–258, §3(a)(1), Sept. 13, 1982, 96 Stat. 1062; Pub. L. 101–422, §3, Oct. 12, 1990, 104 Stat. 910; renumbered §595, Pub. L. 102–354, §2(2), Aug. 26, 1992, 106 Stat. 944.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1045d.	Aug. 30, 1964, Pub. L. 88–499, §6, 78 Stat. 617.

In subsection (b), the words "except that the Council members initially appointed shall serve for one, two, or three years, as designated by the President" are omitted as executed, existing rights being preserved by technical section 8.

In subsection (b)(1), the words "the sessions" are substituted for "such meetings" for clarity as elsewhere the word "sessions" refers to sessions of the Conference and "meetings" refers to meetings of the Council.

In subsection (c)(7), the words "subject to the civil service and classification laws" are omitted as unnecessary inasmuch as appointments in the executive branch are made subject to the civil service laws and pay is fixed under classification laws unless specifically excepted. The words "and fix the pay of" are added for clarity.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

The Federal Property and Administrative Services Act of 1949, referred to in subsec. (c)(10), is act June 30, 1949, ch. 288, 63 Stat. 377. Title III of the Act was classified generally to subchapter IV (§251 et seq.) of chapter 4 of former Title 41, Public Contracts, and was substantially repealed and restated in division C (§3101 et seq.) of subtitle I of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For complete classification of this Act to the Code, see Short Title of 1949 Act note set out under section 101 of Title 41 and Tables. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.

Amendments

1992—Pub. L. 102–354 renumbered section 575 of this title as this section.

1990—Subsec. (c)(16). Pub. L. 101–422 added par. (16).

1982—Subsec. (c)(13). Pub. L. 97–258 substituted "section 1342 of title 31" for "section 3679(b) of the Revised Statutes (31 U.S.C. 665(b))".

1972—Subsec. (c)(10). Pub. L. 92–526, §1(a), inserted provisions authorizing contracts for the performance of such studies with any public or private persons, etc., under title III of the Federal Property and Administrative Services Act of 1949, as amended, and substituted provisions authorizing the payment of experts and consultants in accordance with rates not in excess of the maximum rate of pay for grade GS–15 as provided in section 5332 of this title, for provisions authorizing the payment of such individuals at rates not in excess of $100 a day.

Subsec. (c)(11) to (15). Pub. L. 92–526, §1(b), added pars. (11) to (13) and redesignated former pars. (11) and (12) as (14) and (15), respectively.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see note set out preceding section 591 of this title.

§596. Authorization of appropriations

There are authorized to be appropriated to carry out this subchapter not more than $3,200,000 for fiscal year 2009, $3,200,000 for fiscal year 2010, and $3,200,000 for fiscal year 2011. Of any amounts appropriated under this section, not more than $2,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 391, §576; Pub. L. 91–164, Dec. 24, 1969, 83 Stat. 446; Pub. L. 92–526, §2, Oct. 21, 1972, 86 Stat. 1048; Pub. L. 95–293, §1(a), June 13, 1978, 92 Stat. 317; Pub. L. 97–330, Oct. 15, 1982, 96 Stat. 1618; Pub. L. 99–470, §2(a), Oct. 14, 1986, 100 Stat. 1198; Pub. L. 101–422, §1, Oct. 12, 1990, 104 Stat. 910; renumbered §596, Pub. L. 102–354, §2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L. 108–401, §3, Oct. 30, 2004, 118 Stat. 2255; Pub. L. 110–290, §2, July 30, 2008, 122 Stat. 2914.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1045e.	Aug. 30, 1964, Pub. L. 88–499, §7, 78 Stat. 618.

The word "hereby" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2008—Pub. L. 110–290 amended section generally. Prior to amendment, text read as follows: "There are authorized to be appropriated to carry out this subchapter not more than $3,000,000 for fiscal year 2005, $3,100,000 for fiscal year 2006, and $3,200,000 for fiscal year 2007. Of any amounts appropriated under this section, not more than $2,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries."

2004—Pub. L. 108–401 reenacted section catchline without change and amended text generally. Prior to amendment, text read as follows: "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."

1992—Pub. L. 102–354 renumbered section 576 of this title as this section.

1990—Pub. L. 101–422 amended section generally. Prior to amendment, section read as follows: "There are authorized to be appropriated to carry out the purposes of this subchapter not more than $1,600,000 for fiscal year 1986 and not more than $2,000,000 for each fiscal year thereafter up to and including fiscal year 1990. Of any amounts appropriated under this section, not more than $1,000 may be made available in each fiscal year for official reception and entertainment expenses for foreign dignitaries."

1986—Pub. L. 99–470 substituted "Authorization of appropriations" for "Appropriations" in section catchline and amended text generally. Prior to amendment, text read as follows: "There are authorized to be appropriated to carry out the purposes of this subchapter sums not to exceed $2,300,000 for the fiscal year ending September 30, 1982, and not to exceed $2,300,000 for each fiscal year thereafter up to and including the fiscal year ending September 30, 1986."

1982—Pub. L. 97–330 substituted provisions authorizing appropriations of not to exceed $2,300,000 for fiscal year ending Sept. 30, 1982, and not to exceed $2,300,000 for each fiscal year thereafter up to and including fiscal year ending Sept. 30, 1986, for provisions that had authorized appropriations of not to exceed $1,700,000 for fiscal year ending Sept. 30, 1979, $2,000,000 for fiscal year ending Sept. 30, 1980, $2,300,000 for fiscal year ending Sept. 30, 1981, and $2,300,000 for fiscal year ending Sept. 30, 1982.

1978—Pub. L. 95–293 substituted provisions authorizing appropriations for fiscal years ending Sept. 30, 1979, Sept. 30, 1980, Sept. 30, 1981, and Sept. 30, 1982, of $1,700,000, $2,000,000, $2,300,000, and $2,300,000, respectively, for provisions authorizing appropriations for fiscal years ending June 30, 1974, June 30, 1975, June 30, 1976, June 30, 1977, and June 30, 1978, of $760,000, $805,000, $850,000, $900,000, and $950,000, respectively, and provisions authorizing for each fiscal year thereafter such sums as may be necessary.

1972—Pub. L. 92–526 substituted provisions authorizing to be appropriated necessary sums not in excess of $760,000 for fiscal year ending June 30, 1974, $805,000 for fiscal year ending June 30, 1975, $850,000 for fiscal year ending June 30, 1976, $900,000 for fiscal year ending June 30, 1977, and $950,000 for fiscal year ending June 30, 1978, and each fiscal year thereafter, for provisions authorizing to be appropriated necessary sums, not in excess of $450,000 per annum.

1969—Pub. L. 91–164 substituted "$450,000 per annum" for "$250,000".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Pub. L. 95–293, §1(b), June 13, 1978, 92 Stat. 317, provided that: "The amendment made by subsection (a) [amending this section] shall take effect October 1, 1977."

CHAPTER 6—THE ANALYSIS OF REGULATORY FUNCTIONS

        

§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

(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.

(8) Recordkeeping requirement.—The term "recordkeeping requirement" means a requirement imposed by an agency on persons to maintain specified records.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1165; amended Pub. L. 104–121, title II, §241(a)(2), Mar. 29, 1996, 110 Stat. 864.)

Editorial Notes

References in Text

Section 3 of the Small Business Act, referred to in par. (3), is classified to section 632 of Title 15, Commerce and Trade.

Amendments

1996—Pars. (7), (8). Pub. L. 104–121 added pars. (7) and (8).

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–121, title II, §245, Mar. 29, 1996, 110 Stat. 868, provided that: "This subtitle [subtitle D (§§241–245) of title II of Pub. L. 104–121, amending this section and sections 603 to 605, 609, 611, and 612 of this title and enacting provisions set out as a note under section 609 of this title] shall become effective on the expiration of 90 days after the date of enactment of this subtitle [Mar. 29, 1996], except that such amendments shall not apply to interpretative rules for which a notice of proposed rulemaking was published prior to the date of enactment."

Effective Date

Pub. L. 96–354, §4, Sept. 19, 1980, 94 Stat. 1170, provided that: "The provisions of this Act [enacting this chapter] shall take effect January 1, 1981, except that the requirements of sections 603 and 604 of title 5, United States Code (as added by section 3 of this Act) shall apply only to rules for which a notice of proposed rulemaking is issued on or after January 1, 1981."

Short Title of 1996 Amendment

Pub. L. 104–121, §1, Mar. 29, 1996, 110 Stat. 847, provided that: "This Act [enacting sections 801 to 808 of this title, section 657 of Title 15, Commerce and Trade, and sections 1320b–15 and 1383e of Title 42, The Public Health and Welfare, amending this section and sections 504, 603 to 605, 609, 611, and 612 of this title, sections 665e and 901 of Title 2, The Congress, section 648 of Title 15, section 2412 of Title 28, Judiciary and Judicial Procedure, section 3101 of Title 31, Money and Finance, and sections 401, 402, 403, 405, 422, 423, 425, 902, 903, 1382, 1382c, 1383, and 1383c of Title 42, enacting provisions set out as notes under this section and sections 504, 609, and 801 of this title and sections 401, 402, 403, 405, 902, 1305, 1320b–15, and 1382 of Title 42, amending provisions set out as a note under section 631 of Title 15, and repealing provisions set out as a note under section 425 of Title 42] may be cited as the 'Contract with America Advancement Act of 1996'."

Short Title

Pub. L. 96–354, §1, Sept. 19, 1980, 94 Stat. 1164, provided: "That this Act [enacting this chapter] may be cited as the 'Regulatory Flexibility Act'."

Regulatory Enforcement Reports

Pub. L. 107–198, §4, June 28, 2002, 116 Stat. 732, provided that:

"(a) Definition.—In this section, the term 'agency' has the meaning given that term under section 551 of title 5, United States Code.

"(b) In General.—

"(1) Initial report.—Not later than December 31, 2003, each agency shall submit an initial report to—

"(A) the chairpersons and ranking minority members of—

"(i) the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] and the Committee on Small Business and Entrepreneurship of the Senate; and

"(ii) the Committee on Government Reform [now Committee on Oversight and Accountability] and the Committee on Small Business of the House of Representatives; and

"(B) the Small Business and Agriculture Regulatory Enforcement Ombudsman designated under section 30(b) of the Small Business Act (15 U.S.C. 657(b)).

"(2) Final report.—Not later than December 31, 2004, each agency shall submit a final report to the members and officer described under paragraph (1) (A) and (B).

"(3) Content.—The initial report under paragraph (1) shall include information with respect to the 1-year period beginning on October 1, 2002, and the final report under paragraph (2) shall include information with respect to the 1-year period beginning on October 1, 2003, on each of the following:

"(A) The number of enforcement actions in which a civil penalty is assessed.

"(B) The number of enforcement actions in which a civil penalty is assessed against a small entity.

"(C) The number of enforcement actions described under subparagraphs (A) and (B) in which the civil penalty is reduced or waived.

"(D) The total monetary amount of the reductions or waivers referred to under subparagraph (C).

"(4) Definitions in reports.—Each report under this subsection shall include definitions selected at the discretion of the reporting agency of the terms 'enforcement actions', 'reduction or waiver', and 'small entity' as used in the report."

Assessment of Federal Regulations and Policies on Families

Pub. L. 105–277, div. A, §101(h) [title VI, §654], Oct. 21, 1998, 112 Stat. 2681–480, 2681-528, as amended by Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814, provided that:

"(a) Purposes.—The purposes of this section are to—

"(1) require agencies to assess the impact of proposed agency actions on family well-being; and

"(2) improve the management of executive branch agencies.

"(b) Definitions.—In this section—

"(1) the term 'agency' has the meaning given the term 'Executive agency' by section 105 of title 5, United States Code, except such term does not include the Government Accountability Office; and

"(2) the term 'family' means—

"(A) a group of individuals related by blood, marriage, adoption, or other legal custody who live together as a single household; and

"(B) any individual who is not a member of such group, but who is related by blood, marriage, or adoption to a member of such group, and over half of whose support in a calendar year is received from such group.

"(c) Family Policymaking Assessment.—Before implementing policies and regulations that may affect family well-being, each agency shall assess such actions with respect to whether—

"(1) the action strengthens or erodes the stability or safety of the family and, particularly, the marital commitment;

"(2) the action strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children;

"(3) the action helps the family perform its functions, or substitutes governmental activity for the function;

"(4) the action increases or decreases disposable income or poverty of families and children;

"(5) the proposed benefits of the action justify the financial impact on the family;

"(6) the action may be carried out by State or local government or by the family; and

"(7) the action establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth, and the norms of society.

"(d) Governmentwide Family Policy Coordination and Review.—

"(1) Certification and rationale.—With respect to each proposed policy or regulation that may affect family well-being, the head of each agency shall—

"(A) submit a written certification to the Director of the Office of Management and Budget and to Congress that such policy or regulation has been assessed in accordance with this section; and

"(B) provide an adequate rationale for implementation of each policy or regulation that may negatively affect family well-being.

"(2) Office of management and budget.—The Director of the Office of Management and Budget shall—

"(A) ensure that policies and regulations proposed by agencies are implemented consistent with this section; and

"(B) compile, index, and submit annually to the Congress the written certifications received pursuant to paragraph (1)(A).

"(3) Office of policy development.—The Office of Policy Development shall—

"(A) assess proposed policies and regulations in accordance with this section;

"(B) provide evaluations of policies and regulations that may affect family well-being to the Director of the Office of Management and Budget; and

"(C) advise the President on policy and regulatory actions that may be taken to strengthen the institutions of marriage and family in the United States.

"(e) Assessments Upon Request by Members of Congress.—Upon request by a Member of Congress relating to a proposed policy or regulation, an agency shall conduct an assessment in accordance with subsection (c), and shall provide a certification and rationale in accordance with subsection (d).

"(f) Judicial Review.—This section is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person."

Small Business Regulatory Fairness

Pub. L. 104–121, title II, §§201–224, Mar. 29, 1996, 110 Stat. 857–862, as amended by Pub. L. 110–28, title VIII, §8302, May 25, 2007, 121 Stat. 204, provided that:

"SEC. 201. SHORT TITLE.

"This title [enacting sections 801 to 808 of this title and section 657 of Title 15, Commerce and Trade, amending this section, sections 504, 603 to 605, 609, 611, and 612 of this title, section 648 of Title 15, and section 2412 of Title 28, Judiciary and Judicial Procedure, enacting provisions set out as notes under this section and sections 504, 609, and 801 of this title, and amending provisions set out as a note under section 631 of Title 15] may be cited as the 'Small Business Regulatory Enforcement Fairness Act of 1996'.

"SEC. 202. FINDINGS.

"Congress finds that—

"(1) a vibrant and growing small business sector is critical to creating jobs in a dynamic economy;

"(2) small businesses bear a disproportionate share of regulatory costs and burdens;

"(3) fundamental changes that are needed in the regulatory and enforcement culture of Federal agencies to make agencies more responsive to small business can be made without compromising the statutory missions of the agencies;

"(4) three of the top recommendations of the 1995 White House Conference on Small Business involve reforms to the way government regulations are developed and enforced, and reductions in government paperwork requirements;

"(5) the requirements of chapter 6 of title 5, United States Code, have too often been ignored by government agencies, resulting in greater regulatory burdens on small entities than necessitated by statute; and

"(6) small entities should be given the opportunity to seek judicial review of agency actions required by chapter 6 of title 5, United States Code.

"SEC. 203. PURPOSES.

"The purposes of this title are—

"(1) to implement certain recommendations of the 1995 White House Conference on Small Business regarding the development and enforcement of Federal regulations;

"(2) to provide for judicial review of chapter 6 of title 5, United States Code;

"(3) to encourage the effective participation of small businesses in the Federal regulatory process;

"(4) to simplify the language of Federal regulations affecting small businesses;

"(5) to develop more accessible sources of information on regulatory and reporting requirements for small businesses;

"(6) to create a more cooperative regulatory environment among agencies and small businesses that is less punitive and more solution-oriented; and

"(7) to make Federal regulators more accountable for their enforcement actions by providing small entities with a meaningful opportunity for redress of excessive enforcement activities.

"subtitle a—regulatory compliance simplification

"SEC. 211. DEFINITIONS.

"For purposes of this subtitle—

"(1) the terms 'rule' and 'small entity' have the same meanings as in section 601 of title 5, United States Code;

"(2) the term 'agency' has the same meaning as in section 551 of title 5, United States Code; and

"(3) the term 'small entity compliance guide' means a document designated and entitled as such by an agency.

"SEC. 212. COMPLIANCE GUIDES.

"(a) Compliance Guide.—

"(1) In general.—For each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis under section 605(b) [probably should be "section 604"] of title 5, United States Code, the agency shall publish 1 or more guides to assist small entities in complying with the rule and shall entitle such publications 'small entity compliance guides'.

"(2) Publication of guides.—The publication of each guide under this subsection shall include—

"(A) the posting of the guide in an easily identified location on the website of the agency; and

"(B) distribution of the guide to known industry contacts, such as small entities, associations, or industry leaders affected by the rule.

"(3) Publication date.—An agency shall publish each guide (including the posting and distribution of the guide as described under paragraph (2))—

"(A) on the same date as the date of publication of the final rule (or as soon as possible after that date); and

"(B) not later than the date on which the requirements of that rule become effective.

"(4) Compliance actions.—

"(A) In general.—Each guide shall explain the actions a small entity is required to take to comply with a rule.

"(B) Explanation.—The explanation under subparagraph (A)—

"(i) shall include a description of actions needed to meet the requirements of a rule, to enable a small entity to know when such requirements are met; and

"(ii) if determined appropriate by the agency, may include a description of possible procedures, such as conducting tests, that may assist a small entity in meeting such requirements, except that, compliance with any procedures described pursuant to this section does not establish compliance with the rule, or establish a presumption or inference of such compliance.

"(C) Procedures.—Procedures described under subparagraph (B)(ii)—

"(i) shall be suggestions to assist small entities; and

"(ii) shall not be additional requirements, or diminish requirements, relating to the rule.

"(5) Agency preparation of guides.—The agency shall, in its sole discretion, taking into account the subject matter of the rule and the language of relevant statutes, ensure that the guide is written using sufficiently plain language likely to be understood by affected small entities. Agencies may prepare separate guides covering groups or classes of similarly affected small entities and may cooperate with associations of small entities to develop and distribute such guides. An agency may prepare guides and apply this section with respect to a rule or a group of related rules.

"(6) Reporting.—Not later than 1 year after the date of enactment of the Fair Minimum Wage Act of 2007 [May 25, 2007], and annually thereafter, the head of each agency shall submit a report to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Small Business of the House of Representatives, and any other committee of relevant jurisdiction describing the status of the agency's compliance with paragraphs (1) through (5).

"(b) Comprehensive Source of Information.—Agencies shall cooperate to make available to small entities through comprehensive sources of information, the small entity compliance guides and all other available information on statutory and regulatory requirements affecting small entities.

"(c) Limitation on Judicial Review.—An agency's small entity compliance guide shall not be subject to judicial review, except that in any civil or administrative action against a small entity for a violation occurring after the effective date of this section, the content of the small entity compliance guide may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages.

"SEC. 213. INFORMAL SMALL ENTITY GUIDANCE.

"(a) General.—Whenever appropriate in the interest of administering statutes and regulations within the jurisdiction of an agency which regulates small entities, it shall be the practice of the agency to answer inquiries by small entities concerning information on, and advice about, compliance with such statutes and regulations, interpreting and applying the law to specific sets of facts supplied by the small entity. In any civil or administrative action against a small entity, guidance given by an agency applying the law to facts provided by the small entity may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages sought against such small entity.

"(b) Program.—Each agency regulating the activities of small entities shall establish a program for responding to such inquiries no later than 1 year after enactment of this section [Mar. 29, 1996], utilizing existing functions and personnel of the agency to the extent practicable.

"(c) Reporting.—Each agency regulating the activities of small business shall report to the Committee on Small Business [now Committee on Small Business and Entrepreneurship] and Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate and the Committee on Small Business and Committee on the Judiciary of the House of Representatives no later than 2 years after the date of the enactment of this section on the scope of the agency's program, the number of small entities using the program, and the achievements of the program to assist small entity compliance with agency regulations.

"SEC. 214. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.

"(a) [Amended section 648 of Title 15, Commerce and Trade.]

"(b) Nothing in this Act [see Short Title of 1996 Amendment note, above] in any way affects or limits the ability of other technical assistance or extension programs to perform or continue to perform services related to compliance assistance.

"SEC. 215. COOPERATION ON GUIDANCE.

"Agencies may, to the extent resources are available and where appropriate, in cooperation with the States, develop guides that fully integrate requirements of both Federal and State regulations where regulations within an agency's area of interest at the Federal and State levels impact small entities. Where regulations vary among the States, separate guides may be created for separate States in cooperation with State agencies.

"SEC. 216. EFFECTIVE DATE.

"This subtitle and the amendments made by this subtitle shall take effect on the expiration of 90 days after the date of enactment of this subtitle [Mar. 29, 1996].

"subtitle b—regulatory enforcement reforms

"SEC. 221. DEFINITIONS.

"For purposes of this subtitle—

"(1) the terms 'rule' and 'small entity' have the same meanings as in section 601 of title 5, United States Code;

"(2) the term 'agency' has the same meaning as in section 551 of title 5, United States Code; and

"(3) the term 'small entity compliance guide' means a document designated as such by an agency.

"SEC. 222. SMALL BUSINESS AND AGRICULTURE ENFORCEMENT OMBUDSMAN.

"[Enacted section 657 of Title 15, Commerce and Trade.]

"SEC. 223. RIGHTS OF SMALL ENTITIES IN ENFORCEMENT ACTIONS.

"(a) In General.—Each agency regulating the activities of small entities shall establish a policy or program within 1 year of enactment of this section [Mar. 29, 1996] to provide for the reduction, and under appropriate circumstances for the waiver, of civil penalties for violations of a statutory or regulatory requirement by a small entity. Under appropriate circumstances, an agency may consider ability to pay in determining penalty assessments on small entities.

"(b) Conditions and Exclusions.—Subject to the requirements or limitations of other statutes, policies or programs established under this section shall contain conditions or exclusions which may include, but shall not be limited to—

"(1) requiring the small entity to correct the violation within a reasonable correction period;

"(2) limiting the applicability to violations discovered through participation by the small entity in a compliance assistance or audit program operated or supported by the agency or a State;

"(3) excluding small entities that have been subject to multiple enforcement actions by the agency;

"(4) excluding violations involving willful or criminal conduct;

"(5) excluding violations that pose serious health, safety or environmental threats; and

"(6) requiring a good faith effort to comply with the law.

"(c) Reporting.—Agencies shall report to the Committee on Small Business [now Committee on Small Business and Entrepreneurship] and Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate and the Committee on Small Business and Committee on Judiciary of the House of Representatives no later than 2 years after the date of enactment of this section [Mar. 29, 1996] on the scope of their program or policy, the number of enforcement actions against small entities that qualified or failed to qualify for the program or policy, and the total amount of penalty reductions and waivers.

"SEC. 224. EFFECTIVE DATE.

"This subtitle and the amendments made by this subtitle shall take effect on the expiration of 90 days after the date of enactment of this subtitle [Mar. 29, 1996]."

Effects of Deregulation On Rural America

Pub. L. 101–574, title III, §309, Nov. 15, 1990, 104 Stat. 2831, provided that:

"(a) Study.—The Office of Technology Assessment shall conduct a study of the effects of deregulation on the economic vitality of rural areas. Such study shall include, but not be limited to, a thorough analysis of the impact of deregulation on—

"(1) the number of loans made by financial institutions to small businesses located in rural areas, a change in the level of security interests required for such loans, and the cost of such loans to rural small businesses for creation and expansion;

"(2) airline service in cities and towns with populations of 100,000 or less, including airline fare, the number of flights available, number of seats available, scheduling of flights, continuity of service, number of markets being served by large and small airlines, availability of nonstop service, availability of direct service, number of economic cancellations, number of flight delays, the types of airplanes used, and time delays;

"(3) the availability and costs of bus, rail and trucking transportation for businesses located in rural areas;

"(4) the availability and costs of state-of-the-art telecommunications services to small businesses located in rural areas, including voice telephone service, private (not multiparty) telephone service, reliable facsimile document and data transmission, competitive long distance carriers, cellular (mobile) telephone service, multifrequency tone signaling services such as touchtone services, custom-calling services (including three-way calling, call forwarding, and call waiting), voicemail services, and 911 emergency services with automatic number identification;

"(5) the availability and costs to rural schools, hospitals, and other public facilities, of sending and receiving audio and visual signals in cases where such ability will enhance the quality of services provided to rural residents and businesses; and

"(6) the availability and costs of services enumerated in paragraphs (1) through (5) in urban areas compared to rural areas.

"(b) Report.—Not later than 12 months after the date of enactment of this title [Nov. 15, 1990], the Office of Technology Assessment shall transmit to Congress a report on the results of the study conducted under subsection (a) together with its recommendations on how to address the problems facing small businesses in rural areas."

Congressional Findings and Declaration of Purpose

Pub. L. 96–354, §2, Sept. 19, 1980, 94 Stat. 1164, provided that:

"(a) The Congress finds and declares that—

"(1) when adopting regulations to protect the health, safety and economic welfare of the Nation, Federal agencies should seek to achieve statutory goals as effectively and efficiently as possible without imposing unnecessary burdens on the public;

"(2) laws and regulations designed for application to large scale entities have been applied uniformly to small businesses, small organizations, and small governmental jurisdictions even though the problems that gave rise to government action may not have been caused by those smaller entities;

"(3) uniform Federal regulatory and reporting requirements have in numerous instances imposed unnecessary and disproportionately burdensome demands including legal, accounting and consulting costs upon small businesses, small organizations, and small governmental jurisdictions with limited resources;

"(4) the failure to recognize differences in the scale and resources of regulated entities has in numerous instances adversely affected competition in the marketplace, discouraged innovation and restricted improvements in productivity;

"(5) unnecessary regulations create entry barriers in many industries and discourage potential entrepreneurs from introducing beneficial products and processes;

"(6) the practice of treating all regulated businesses, organizations, and governmental jurisdictions as equivalent may lead to inefficient use of regulatory agency resources, enforcement problems, and, in some cases, to actions inconsistent with the legislative intent of health, safety, environmental and economic welfare legislation;

"(7) alternative regulatory approaches which do not conflict with the stated objectives of applicable statutes may be available which minimize the significant economic impact of rules on small businesses, small organizations, and small governmental jurisdictions;

"(8) the process by which Federal regulations are developed and adopted should be reformed to require agencies to solicit the ideas and comments of small businesses, small organizations, and small governmental jurisdictions to examine the impact of proposed and existing rules on such entities, and to review the continued need for existing rules.

"(b) It is the purpose of this Act [enacting this chapter] to establish as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration."

Executive Documents

Executive Order No. 12291

Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, which established requirements for agencies to follow in promulgating regulations, reviewing existing regulations, and developing legislative proposals concerning regulation, was revoked by Ex. Ord. No. 12866, §11, Sept. 30, 1993, 58 F.R. 51735, set out below.

Executive Order No. 12498

Ex. Ord. No. 12498, Jan. 4, 1985, 50 F.R. 1036, which established a regulatory planning process by which to develop and publish a regulatory program for each year, was revoked by Ex. Ord. No. 12866, §11, Sept. 30, 1993, 58 F.R. 51735, set out below.

Executive Order No. 12606

Ex. Ord. No. 12606, Sept. 2, 1987, 52 F.R. 34188, which provided criteria for executive departments and agencies to follow in making policies and regulations to ensure consideration of effect of those policies and regulations on autonomy and rights of the family, was revoked by Ex. Ord. No. 13045, §7, Apr. 21, 1997, 62 F.R. 19888, set out as a note under section 4321 of Title 42, The Public Health and Welfare.

Executive Order No. 12612

Ex. Ord. No. 12612, Oct. 26, 1987, 52 F.R. 41685, which set out fundamental federalism principles and policymaking criteria for executive departments and agencies to follow in formulating and implementing policies and limited the instances when executive departments and agencies could construe a Federal statute to preempt State law, was revoked by Ex. Ord. No. 13132, §10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Ex. Ord. No. 12630. Governmental Actions and Interference With Constitutionally Protected Property Rights

Ex. Ord. No. 12630, Mar. 15, 1988, 53 F.R. 8859, provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to ensure that government actions are undertaken on a well-reasoned basis with due regard for fiscal accountability, for the financial impact of the obligations imposed on the Federal government by the Just Compensation Clause of the Fifth Amendment, and for the Constitution, it is hereby ordered as follows:

Section 1. Purpose. (a) The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use without just compensation. Government historically has used the formal exercise of the power of eminent domain, which provides orderly processes for paying just compensation, to acquire private property for public use. Recent Supreme Court decisions, however, in reaffirming the fundamental protection of private property rights provided by the Fifth Amendment and in assessing the nature of governmental actions that have an impact on constitutionally protected property rights, have also reaffirmed that governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required.

(b) Responsible fiscal management and fundamental principles of good government require that government decision-makers evaluate carefully the effect of their administrative, regulatory, and legislative actions on constitutionally protected property rights. Executive departments and agencies should review their actions carefully to prevent unnecessary takings and should account in decision-making for those takings that are necessitated by statutory mandate.

(c) The purpose of this Order is to assist Federal departments and agencies in undertaking such reviews and in proposing, planning, and implementing actions with due regard for the constitutional protections provided by the Fifth Amendment and to reduce the risk of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In furtherance of the purpose of this Order, the Attorney General shall, consistent with the principles stated herein and in consultation with the Executive departments and agencies, promulgate Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings to which each Executive department or agency shall refer in making the evaluations required by this Order or in otherwise taking any action that is the subject of this Order. The Guidelines shall be promulgated no later than May 1, 1988, and shall be disseminated to all units of each Executive department and agency no later than July 1, 1988. The Attorney General shall, as necessary, update these guidelines to reflect fundamental changes in takings law occurring as a result of Supreme Court decisions.

Sec. 2. Definitions. For the purpose of this Order: (a) "Policies that have takings implications" refers to Federal regulations, proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, or other Federal policy statements that, if implemented or enacted, could effect a taking, such as rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. "Policies that have takings implications" does not include:

(1) Actions abolishing regulations, discontinuing governmental programs, or modifying regulations in a manner that lessens interference with the use of private property;

(2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations;

(3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings;

(4) Studies or similar efforts or planning activities;

(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority;

(6) The placement of military facilities or military activities involving the use of Federal property alone; or

(7) Any military or foreign affairs functions (including procurement functions thereunder) but not including the U.S. Army Corps of Engineers civil works program.

(b) Private property refers to all property protected by the Just Compensation Clause of the Fifth Amendment.

(c) "Actions" refers to proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, applications of Federal regulations to specific property, or Federal governmental actions physically invading or occupying private property, or other policy statements or actions related to Federal regulation or direct physical invasion or occupancy, but does not include:

(1) Actions in which the power of eminent domain is formally exercised;

(2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations;

(3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings;

(4) Studies or similar efforts or planning activities;

(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority;

(6) The placement of military facilities or military activities involving the use of Federal property alone; or

(7) Any military or foreign affairs functions (including procurement functions thereunder), but not including the U.S. Army Corps of Engineers civil works program.

Sec. 3. General Principles. In formulating or implementing policies that have takings implications, each Executive department and agency shall be guided by the following general principles:

(a) Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by the Just Compensation Clause of the Fifth Amendment in planning and carrying out governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc.

(b) Actions undertaken by governmental officials that result in a physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use, may constitute a taking of property. Further, governmental action may amount to a taking even though the action results in less than a complete deprivation of all use or value, or of all separate and distinct interests in the same private property and even if the action constituting a taking is temporary in nature.

(c) Government officials whose actions are taken specifically for purposes of protecting public health and safety are ordinarily given broader latitude by courts before their actions are considered to be takings. However, the mere assertion of a public health and safety purpose is insufficient to avoid a taking. Actions to which this Order applies asserted to be for the protection of public health and safety, therefore, should be undertaken only in response to real and substantial threats to public health and safety, be designed to advance significantly the health and safety purpose, and be no greater than is necessary to achieve the health and safety purpose.

(d) While normal governmental processes do not ordinarily effect takings, undue delays in decision-making during which private property use if interfered with carry a risk of being held to be takings. Additionally, a delay in processing may increase significantly the size of compensation due if a taking is later found to have occurred.

(e) The Just Compensation Clause is self-actuating, requiring that compensation be paid whenever governmental action results in a taking of private property regardless of whether the underlying authority for the action contemplated a taking or authorized the payment of compensation. Accordingly, governmental actions that may have a significant impact on the use or value of private property should be scrutinized to avoid undue or unplanned burdens on the public fisc.

Sec. 4. Department and Agency Action. In addition to the fundamental principles set forth in Section 3, Executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when implementing policies that have takings implications:

(a) When an Executive department or agency requires a private party to obtain a permit in order to undertake a specific use of, or action with respect to, private property, any conditions imposed on the granting of a permit shall:

(1) Serve the same purpose that would have been served by a prohibition of the use or action; and

(2) Substantially advance that purpose.

(b) When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress.

(c) When a proposed action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary.

(d) Before undertaking any proposed action regulating private property use for the protection of public health or safety, the Executive department or agency involved shall, in internal deliberative documents and any submissions to the Director of the Office of Management and Budget that are required:

(1) Identify clearly, with as much specificity as possible, the public health or safety risk created by the private property use that is the subject of the proposed action;

(2) Establish that such proposed action substantially advances the purpose of protecting public health and safety against the specifically identified risk;

(3) Establish to the extent possible that the restrictions imposed on the private property are not disproportionate to the extent to which the use contributes to the overall risk; and

(4) Estimate, to the extent possible, the potential cost to the government in the event that a court later determines that the action constituted a taking.

In instances in which there is an immediate threat to health and safety that constitutes an emergency requiring immediate response, this analysis may be done upon completion of the emergency action.

Sec. 5. Executive Department and Agency Implementation. (a) The head of each Executive department and agency shall designate an official to be responsible for ensuring compliance with this Order with respect to the actions of the department or agency.

(b) Executive departments and agencies shall, to the extent permitted by law, identify the takings implications of proposed regulatory actions and address the merits of those actions in light of the identified takings implications, if any, in all required submissions made to the Office of Management and Budget. Significant takings implications should also be identified and discussed in notices of proposed rule-making and messages transmitting legislative proposals to the Congress stating the departments' and agencies' conclusions on the takings issues.

(c) Executive departments and agencies shall identify each existing Federal rule and regulation against which a takings award has been made or against which a takings claim is pending including the amount of each claim or award. A "takings" award has been made or a "takings" claim pending if the award was made, or the pending claim brought, pursuant to the Just Compensation Clause of the Fifth Amendment. An itemized compilation of all such awards made in Fiscal Years 1985, 1986, and 1987 and all such pending claims shall be submitted to the Director, Office of Management and Budget, on or before May 16, 1988.

(d) Each Executive department and agency shall submit annually to the Director, Office of Management and Budget, and to the Attorney General an itemized compilation of all awards of just compensation entered against the United States for takings, including awards of interest as well as monies paid pursuant to the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601.

(e)(1) The Director, Office of Management and Budget, and the Attorney General shall each, to the extent permitted by law, take action to ensure that the policies of the Executive departments and agencies are consistent with the principles, criteria, and requirements stated in Sections 1 through 5 of this Order, and the Office of Management and Budget shall take action to ensure that all takings awards levied against agencies are properly accounted for in agency budget submissions.

(2) In addition to the guidelines required by Section 1 of this Order, the Attorney General shall, in consultation with each Executive department and agency to which this Order applies, promulgate such supplemental guidelines as may be appropriate to the specific obligations of that department or agency.

Sec. 6. Judicial Review. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

Ronald Reagan.      

Ex. Ord. No. 12861. Elimination of One-Half of Executive Branch Internal Regulations

Ex. Ord. No. 12861, Sept. 11, 1993, 58 F.R. 48255, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, and section 1111 of title 31, United States Code, and to cut 50 percent of the executive branch's internal regulations in order to streamline and improve customer service to the American people, it is hereby ordered as follows:

Section 1. Regulatory Reductions. Each executive department and agency shall undertake to eliminate not less than 50 percent of its civilian internal management regulations that are not required by law within 3 years of the effective date of this order. An agency internal management regulation, for the purposes of this order, means an agency directive or regulation that pertains to its organization, management, or personnel matters. Reductions in agency internal management regulations shall be concentrated in areas that will result in the greatest improvement in productivity, streamlining of operations, and improvement in customer service.

Sec. 2. Coverage. This order applies to all executive branch departments and agencies.

Sec. 3. Implementation. The Director of the Office of Management and Budget shall issue instructions regarding the implementation of this order, including exemptions necessary for the delivery of essential services and compliance with applicable law.

Sec. 4. Independent Agencies. All independent regulatory commissions and agencies are requested to comply with the provisions of this order.

William J. Clinton.      

Ex. Ord. No. 12866. Regulatory Planning and Review

Ex. Ord. No. 12866, Sept. 30, 1993, 58 F.R. 51735, as amended by Ex. Ord. No. 13258, Feb. 26, 2002, 67 F.R. 9385; Ex. Ord. No. 13422, Jan. 18, 2007, 72 F.R. 2763; Ex. Ord. No. 13497, §1, Jan. 30, 2009, 74 F.R. 6113; Ex. Ord. No. 14094, §1(b), Apr. 6, 2023, 88 F.R. 21879, provided:

The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today.

With this Executive order, the Federal Government begins a program to reform and make more efficient the regulatory process. The objectives of this Executive order are to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory decision-making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public. In pursuing these objectives, the regulatory process shall be conducted so as to meet applicable statutory requirements and with due regard to the discretion that has been entrusted to the Federal agencies.

Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Statement of Regulatory Philosophy and Principles.

(a) The Regulatory Philosophy. Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating. Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.

(b) The Principles of Regulation. To ensure that the agencies' regulatory programs are consistent with the philosophy set forth above, agencies should adhere to the following principles, to the extent permitted by law and where applicable:

(1) Each agency shall identify the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem.

(2) Each agency shall examine whether existing regulations (or other law) have created, or contributed to, the problem that a new regulation is intended to correct and whether those regulations (or other law) should be modified to achieve the intended goal of regulation more effectively.

(3) Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

(4) In setting regulatory priorities, each agency shall consider, to the extent reasonable, the degree and nature of the risks posed by various substances or activities within its jurisdiction.

(5) When an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the costs of enforcement and compliance (to the government, regulated entities, and the public), flexibility, distributive impacts, and equity.

(6) Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.

(7) Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.

(8) Each agency shall identify and assess alternative forms of regulation and shall, to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt.

(9) Wherever feasible, agencies shall seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. In addition, as appropriate, agencies shall seek to harmonize Federal regulatory actions with related State, local, and tribal regulatory and other governmental functions.

(10) Each agency shall avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other Federal agencies.

(11) Each agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.

(12) Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.

Sec. 2. Organization. An efficient regulatory planning and review process is vital to ensure that the Federal Government's regulatory system best serves the American people.

(a) The Agencies. Because Federal agencies are the repositories of significant substantive expertise and experience, they are responsible for developing regulations and assuring that the regulations are consistent with applicable law, the President's priorities, and the principles set forth in this Executive order.

(b) The Office of Management and Budget. Coordinated review of agency rulemaking is necessary to ensure that regulations are consistent with applicable law, the President's priorities, and the principles set forth in this Executive order, and that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency. The Office of Management and Budget (OMB) shall carry out that review function. Within OMB, the Office of Information and Regulatory Affairs (OIRA) is the repository of expertise concerning regulatory issues, including methodologies and procedures that affect more than one agency, this Executive order, and the President's regulatory policies. To the extent permitted by law, OMB shall provide guidance to agencies and assist the President, the Vice President, and other regulatory policy advisors to the President in regulatory planning and shall be the entity that reviews individual regulations, as provided by this Executive order.

(c) The Vice President. The Vice President is the principal advisor to the President on, and shall coordinate the development and presentation of recommendations concerning, regulatory policy, planning, and review, as set forth in this Executive order. In fulfilling their responsibilities under this Executive order, the President and the Vice President shall be assisted by the regulatory policy advisors within the Executive Office of the President and by such agency officials and personnel as the President and the Vice President may, from time to time, consult.

Sec. 3. Definitions. For purposes of this Executive order: (a) "Advisors" refers to such regulatory policy advisors to the President as the President and Vice President may from time to time consult, including, among others: (1) the Director of OMB; (2) the Chair (or another member) of the Council of Economic Advisers; (3) the Assistant to the President for Economic Policy; (4) the Assistant to the President for Domestic Policy; (5) the Assistant to the President for National Security Affairs; (6) the Assistant to the President for Science and Technology; (7) the Assistant to the President for Intergovernmental Affairs; (8) the Assistant to the President and Staff Secretary; (9) the Assistant to the President and Chief of Staff to the Vice President; (10) the Assistant to the President and Counsel to the President; (11) the Deputy Assistant to the President and Director of the White House Office on Environmental Policy; and (12) the Administrator of OIRA, who also shall coordinate communications relating to this Executive order among the agencies, OMB, the other Advisors, and the Office of the Vice President.

(b) "Agency," unless otherwise indicated, means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).

(c) "Director" means the Director of OMB.

(d) "Regulation" or "rule" means an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency. It does not, however, include:

(1) Regulations or rules issued in accordance with the formal rulemaking provisions of 5 U.S.C. 556, 557;

(2) Regulations or rules that pertain to a military or foreign affairs function of the United States, other than procurement regulations and regulations involving the import or export of non-defense articles and services;

(3) Regulations or rules that are limited to agency organization, management, or personnel matters; or

(4) Any other category of regulations exempted by the Administrator of OIRA.

(e) "Regulatory action" means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.

(f) "Significant regulatory action" means any regulatory action that is likely to result in a rule that may:

(1) have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

Sec. 4. Planning Mechanism. In order to have an effective regulatory program, to provide for coordination of regulations, to maximize consultation and the resolution of potential conflicts at an early stage, to involve the public and its State, local, and tribal officials in regulatory planning, and to ensure that new or revised regulations promote the President's priorities and the principles set forth in this Executive order, these procedures shall be followed, to the extent permitted by law: (a) Agencies' Policy Meeting. Early in each year's planning cycle, the Vice President shall convene a meeting of the Advisors and the heads of agencies to seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year.

(b) Unified Regulatory Agenda. For purposes of this subsection, the term "agency" or "agencies" shall also include those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10). Each agency shall prepare an agenda of all regulations under development or review, at a time and in a manner specified by the Administrator of OIRA. The description of each regulatory action shall contain, at a minimum, a regulation identifier number, a brief summary of the action, the legal authority for the action, any legal deadline for the action, and the name and telephone number of a knowledgeable agency official. Agencies may incorporate the information required under 5 U.S.C. 602 and [former] 41 U.S.C. 402 into these agendas.

(c) The Regulatory Plan. For purposes of this subsection, the term "agency" or "agencies" shall also include those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10). (1) As part of the Unified Regulatory Agenda, beginning in 1994, each agency shall prepare a Regulatory Plan (Plan) of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter. The Plan shall be approved personally by the agency head and shall contain at a minimum:

(A) A statement of the agency's regulatory objectives and priorities and how they relate to the President's priorities;

(B) A summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of the anticipated costs and benefits;

(C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order;

(D) A statement of the need for each such action and, if applicable, how the action will reduce risks to public health, safety, or the environment, as well as how the magnitude of the risk addressed by the action relates to other risks within the jurisdiction of the agency;

(E) The agency's schedule for action, including a statement of any applicable statutory or judicial deadlines; and

(F) The name, address, and telephone number of a person the public may contact for additional information about the planned regulatory action.

(2) Each agency shall forward its Plan to OIRA by June 1st of each year.

(3) Within 10 calendar days after OIRA has received an agency's Plan, OIRA shall circulate it to other affected agencies, the Advisors, and the Vice President.

(4) An agency head who believes that a planned regulatory action of another agency may conflict with its own policy or action taken or planned shall promptly notify, in writing, the Administrator of OIRA, who shall forward that communication to the issuing agency, the Advisors, and the Vice President.

(5) If the Administrator of OIRA believes that a planned regulatory action of an agency may be inconsistent with the President's priorities or the principles set forth in this Executive order or may be in conflict with any policy or action taken or planned by another agency, the Administrator of OIRA shall promptly notify, in writing, the affected agencies, the Advisors, and the Vice President.

(6) The Vice President, with the Advisors' assistance, may consult with the heads of agencies with respect to their Plans and, in appropriate instances, request further consideration or inter-agency coordination.

(7) The Plans developed by the issuing agency shall be published annually in the October publication of the Unified Regulatory Agenda. This publication shall be made available to the Congress; State, local, and tribal governments; and the public. Any views on any aspect of any agency Plan, including whether any planned regulatory action might conflict with any other planned or existing regulation, impose any unintended consequences on the public, or confer any unclaimed benefits on the public, should be directed to the issuing agency, with a copy to OIRA.

(d) Regulatory Working Group. Within 30 days of the date of this Executive order, the Administrator of OIRA shall convene a Regulatory Working Group ("Working Group"), which shall consist of representatives of the heads of each agency that the Administrator determines to have significant domestic regulatory responsibility, the Advisors, and the Vice President. The Administrator of OIRA shall chair the Working Group and shall periodically advise the Vice President on the activities of the Working Group. The Working Group shall serve as a forum to assist agencies in identifying and analyzing important regulatory issues (including, among others (1) the development of innovative regulatory techniques, (2) the methods, efficacy, and utility of comparative risk assessment in regulatory decision-making, and (3) the development of short forms and other streamlined regulatory approaches for small businesses and other entities). The Working Group shall meet at least quarterly and may meet as a whole or in subgroups of agencies with an interest in particular issues or subject areas. To inform its discussions, the Working Group may commission analytical studies and reports by OIRA, the Administrative Conference of the United States, or any other agency.

(e) Conferences. The Administrator of OIRA shall meet quarterly with representatives of State, local, and tribal governments to identify both existing and proposed regulations that may uniquely or significantly affect those governmental entities. The Administrator of OIRA shall also convene, from time to time, conferences with representatives of businesses, nongovernmental organizations, and the public to discuss regulatory issues of common concern.

Sec. 5. Existing Regulations. In order to reduce the regulatory burden on the American people, their families, their communities, their State, local, and tribal governments, and their industries; to determine whether regulations promulgated by the executive branch of the Federal Government have become unjustified or unnecessary as a result of changed circumstances; to confirm that regulations are both compatible with each other and not duplicative or inappropriately burdensome in the aggregate; to ensure that all regulations are consistent with the President's priorities and the principles set forth in this Executive order, within applicable law; and to otherwise improve the effectiveness of existing regulations: (a) Within 90 days of the date of this Executive order, each agency shall submit to OIRA a program, consistent with its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified or eliminated so as to make the agency's regulatory program more effective in achieving the regulatory objectives, less burdensome, or in greater alignment with the President's priorities and the principles set forth in this Executive order. Any significant regulations selected for review shall be included in the agency's annual Plan. The agency shall also identify any legislative mandates that require the agency to promulgate or continue to impose regulations that the agency believes are unnecessary or outdated by reason of changed circumstances.

(b) The Administrator of OIRA shall work with the Regulatory Working Group and other interested entities to pursue the objectives of this section. State, local, and tribal governments are specifically encouraged to assist in the identification of regulations that impose significant or unique burdens on those governmental entities and that appear to have outlived their justification or be otherwise inconsistent with the public interest.

(c) The Vice President, in consultation with the Advisors, may identify for review by the appropriate agency or agencies other existing regulations of an agency or groups of regulations of more than one agency that affect a particular group, industry, or sector of the economy, or may identify legislative mandates that may be appropriate for reconsideration by the Congress.

Sec. 6. Centralized Review of Regulations. The guidelines set forth below shall apply to all regulatory actions, for both new and existing regulations, by agencies other than those agencies specifically exempted by the Administrator of OIRA:

(a) Agency Responsibilities. (1) Each agency shall (consistent with its own rules, regulations, or procedures) provide the public with meaningful participation in the regulatory process. In particular, before issuing a notice of proposed rulemaking, each agency should, where appropriate, seek the involvement of those who are intended to benefit from and those expected to be burdened by any regulation (including, specifically, State, local, and tribal officials). In addition, each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days. Each agency also is directed to explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.

(2) Within 60 days of the date of this Executive order, each agency head shall designate a Regulatory Policy Officer who shall report to the agency head. The Regulatory Policy Officer shall be involved at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles set forth in this Executive order.

(3) In addition to adhering to its own rules and procedures and to the requirements of the Administrative Procedure Act [see Short Title note preceding section 551 of this title], the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the Paperwork Reduction Act [44 U.S.C. 3501 et seq.], and other applicable law, each agency shall develop its regulatory actions in a timely fashion and adhere to the following procedures with respect to a regulatory action:

(A) Each agency shall provide OIRA, at such times and in the manner specified by the Administrator of OIRA, with a list of its planned regulatory actions, indicating those which the agency believes are significant regulatory actions within the meaning of this Executive order. Absent a material change in the development of the planned regulatory action, those not designated as significant will not be subject to review under this section unless, within 10 working days of receipt of the list, the Administrator of OIRA notifies the agency that OIRA has determined that a planned regulation is a significant regulatory action within the meaning of this Executive order. The Administrator of OIRA may waive review of any planned regulatory action designated by the agency as significant, in which case the agency need not further comply with subsection (a)(3)(B) or subsection (a)(3)(C) of this section.

(B) For each matter identified as, or determined by the Administrator of OIRA to be, a significant regulatory action, the issuing agency shall provide to OIRA:

(i) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and

(ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate and, to the extent permitted by law, promotes the President's priorities and avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions.

(C) For those matters identified as, or determined by the Administrator of OIRA to be, a significant regulatory action within the scope of section 3(f)(1), the agency shall also provide to OIRA the following additional information developed as part of the agency's decision-making process (unless prohibited by law):

(i) An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;

(ii) An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs; and

(iii) An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives.

(D) In emergency situations or when an agency is obligated by law to act more quickly than normal review procedures allow, the agency shall notify OIRA as soon as possible and, to the extent practicable, comply with subsections (a)(3)(B) and (C) of this section. For those regulatory actions that are governed by a statutory or court-imposed deadline, the agency shall, to the extent practicable, schedule rulemaking proceedings so as to permit sufficient time for OIRA to conduct its review, as set forth below in subsection (b)(2) through (4) of this section.

(E) After the regulatory action has been published in the Federal Register or otherwise issued to the public, the agency shall:

(i) Make available to the public the information set forth in subsections (a)(3)(B) and (C);

(ii) Identify for the public, in a complete, clear, and simple manner, the substantive changes between the draft submitted to OIRA for review and the action subsequently announced; and

(iii) Identify for the public those changes in the regulatory action that were made at the suggestion or recommendation of OIRA.

(F) All information provided to the public by the agency shall be in plain, understandable language.

(b) OIRA Responsibilities. The Administrator of OIRA shall provide meaningful guidance and oversight so that each agency's regulatory actions are consistent with applicable law, the President's priorities, and the principles set forth in this Executive order and do not conflict with the policies or actions of another agency. OIRA shall, to the extent permitted by law, adhere to the following guidelines:

(1) OIRA may review only actions identified by the agency or by OIRA as significant regulatory actions under subsection (a)(3)(A) of this section.

(2) OIRA shall waive review or notify the agency in writing of the results of its review within the following time periods:

(A) For any notices of inquiry, advance notices of proposed rulemaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA;

(B) For all other regulatory actions, within 90 calendar days after the date of submission of the information set forth in subsections (a)(3)(B) and (C) of this section, unless OIRA has previously reviewed this information and, since that review, there has been no material change in the facts and circumstances upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and

(C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of the agency head.

(3) For each regulatory action that the Administrator of OIRA returns to an agency for further consideration of some or all of its provisions, the Administrator of OIRA shall provide the issuing agency a written explanation for such return, setting forth the pertinent provision of this Executive order on which OIRA is relying. If the agency head disagrees with some or all of the bases for the return, the agency head shall so inform the Administrator of OIRA in writing.

(4) Except as otherwise provided by law or required by a Court, in order to ensure greater openness, accessibility, and accountability in the regulatory review process, OIRA shall be governed by the following disclosure requirements:

(A) Only the Administrator of OIRA (or a particular designee) shall receive oral communications initiated by persons not employed by the executive branch of the Federal Government regarding the substance of a regulatory action under OIRA review;

(B) All substantive communications between OIRA personnel and persons not employed by the executive branch of the Federal Government regarding a regulatory action under review shall be governed by the following guidelines: (i) A representative from the issuing agency shall be invited to any meeting between OIRA personnel and such person(s);

(ii) OIRA shall forward to the issuing agency, within 10 working days of receipt of the communication(s), all written communications, regardless of format, between OIRA personnel and any person who is not employed by the executive branch of the Federal Government, and the dates and names of individuals involved in all substantive oral communications (including meetings to which an agency representative was invited, but did not attend, and telephone conversations between OIRA personnel and any such persons); and

(iii) OIRA shall publicly disclose relevant information about such communication(s), as set forth below in subsection (b)(4)(C) of this section.

(C) OIRA shall maintain a publicly available log that shall contain, at a minimum, the following information pertinent to regulatory actions under review:

(i) The status of all regulatory actions, including if (and if so, when and by whom) Vice Presidential and Presidential consideration was requested;

(ii) A notation of all written communications forwarded to an issuing agency under subsection (b)(4)(B)(ii) of this section; and

(iii) The dates and names of individuals involved in all substantive oral communications, including meetings and telephone conversations, between OIRA personnel and any person not employed by the executive branch of the Federal Government, and the subject matter discussed during such communications.

(D) After the regulatory action has been published in the Federal Register or otherwise issued to the public, or after the agency has announced its decision not to publish or issue the regulatory action, OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.

(5) All information provided to the public by OIRA shall be in plain, understandable language.

Sec. 7. Resolution of Conflicts. To the extent permitted by law, disagreements or conflicts between or among agency heads or between OMB and any agency that cannot be resolved by the Administrator of OIRA shall be resolved by the President, or by the Vice President acting at the request of the President, with the relevant agency head (and, as appropriate, other interested government officials). Vice Presidential and Presidential consideration of such disagreements may be initiated only by the Director, by the head of the issuing agency, or by the head of an agency that has a significant interest in the regulatory action at issue. Such review will not be undertaken at the request of other persons, entities, or their agents.

Resolution of such conflicts shall be informed by recommendations developed by the Vice President, after consultation with the Advisors (and other executive branch officials or personnel whose responsibilities to the President include the subject matter at issue). The development of these recommendations shall be concluded within 60 days after review has been requested.

During the Vice Presidential and Presidential review period, communications with any person not employed by the Federal Government relating to the substance of the regulatory action under review and directed to the Advisors or their staffs or to the staff of the Vice President shall be in writing and shall be forwarded by the recipient to the affected agency(ies) for inclusion in the public docket(s). When the communication is not in writing, such Advisors or staff members shall inform the outside party that the matter is under review and that any comments should be submitted in writing.

At the end of this review process, the President, or the Vice President acting at the request of the President, shall notify the affected agency and the Administrator of OIRA of the President's decision with respect to the matter.

Sec. 8. Publication. Except to the extent required by law, an agency shall not publish in the Federal Register or otherwise issue to the public any regulatory action that is subject to review under section 6 of this Executive order until (1) the Administrator of OIRA notifies the agency that OIRA has waived its review of the action or has completed its review without any requests for further consideration, or (2) the applicable time period in section 6(b)(2) expires without OIRA having notified the agency that it is returning the regulatory action for further consideration under section 6(b)(3), whichever occurs first. If the terms of the preceding sentence have not been satisfied and an agency wants to publish or otherwise issue a regulatory action, the head of that agency may request Presidential consideration through the Vice President, as provided under section 7 of this order. Upon receipt of this request, the Vice President shall notify OIRA and the Advisors. The guidelines and time period set forth in section 7 shall apply to the publication of regulatory actions for which Presidential consideration has been sought.

Sec. 9. Agency Authority. Nothing in this order shall be construed as displacing the agencies' authority or responsibilities, as authorized by law.

Sec. 10. Judicial Review. Nothing in this Executive order shall affect any otherwise available judicial review of agency action. This Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Sec. 11. Revocations. Executive Orders Nos. 12291 and 12498; all amendments to those Executive orders; all guidelines issued under those orders; and any exemptions from those orders heretofore granted for any category of rule are revoked.

[Section 1 of Ex. Ord. No. 13497, which revoked Ex. Ords. 13258 and 13422, was executed by undoing the amendments by those Ex. Ords. to Ex. Ord. 12866, set out above.]

Executive Order No. 12875

Ex. Ord. No. 12875, Oct. 26, 1993, 58 F.R. 58093, which provided for the reduction of unfunded mandates on State, local, or tribal governments and increased flexibility for State and local waivers of statutory or regulatory requirements, was revoked by Ex. Ord. No. 13132, §10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Executive Order No. 13083

Ex. Ord. No. 13083, May 14, 1998, 63 F.R. 27651, which listed fundamental federalism principles and federalism policymaking criteria to guide agencies in formulating and implementing policies and required agencies to have a process to permit State and local governments to provide input into the development of regulatory policies that have federalism implications and to streamline the State and local government waiver process, was revoked by Ex. Ord. No. 13132, §10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Executive Order No. 13095

Ex. Ord. No. 13095, Aug. 5, 1998, 63 F.R. 42565, which suspended Ex. Ord. No. 13083, was revoked by Ex. Ord. No. 13132, §10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Ex. Ord. No. 13107. Implementation of Human Rights Treaties

Ex. Ord. No. 13107, Dec. 10, 1998, 63 F.R. 68991, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and bearing in mind the obligations of the United States pursuant to the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and other relevant treaties concerned with the protection and promotion of human rights to which the United States is now or may become a party in the future, it is hereby ordered as follows:

Section 1. Implementation of Human Rights Obligations. (a) It shall be the policy and practice of the Government of the United States, being committed to the protection and promotion of human rights and fundamental freedoms, fully to respect and implement its obligations under the international human rights treaties to which it is a party, including the ICCPR, the CAT, and the CERD.

(b) It shall also be the policy and practice of the Government of the United States to promote respect for international human rights, both in our relationships with all other countries and by working with and strengthening the various international mechanisms for the promotion of human rights, including, inter alia, those of the United Nations, the International Labor Organization, and the Organization of American States.

Sec. 2. Responsibility of Executive Departments and Agencies. (a) All executive departments and agencies (as defined in 5 U.S.C. 101–105, including boards and commissions, and hereinafter referred to collectively as "agency" or "agencies") shall maintain a current awareness of United States international human rights obligations that are relevant to their functions and shall perform such functions so as to respect and implement those obligations fully. The head of each agency shall designate a single contact officer who will be responsible for overall coordination of the implementation of this order. Under this order, all such agencies shall retain their established institutional roles in the implementation, interpretation, and enforcement of Federal law and policy.

(b) The heads of agencies shall have lead responsibility, in coordination with other appropriate agencies, for questions concerning implementation of human rights obligations that fall within their respective operating and program responsibilities and authorities or, to the extent that matters do not fall within the operating and program responsibilities and authorities of any agency, that most closely relate to their general areas of concern.

Sec. 3. Human Rights Inquiries and Complaints. Each agency shall take lead responsibility, in coordination with other appropriate agencies, for responding to inquiries, requests for information, and complaints about violations of human rights obligations that fall within its areas of responsibility or, if the matter does not fall within its areas of responsibility, referring it to the appropriate agency for response.

Sec. 4. Interagency Working Group on Human Rights Treaties. (a) There is hereby established an Interagency Working Group on Human Rights Treaties for the purpose of providing guidance, oversight, and coordination with respect to questions concerning the adherence to and implementation of human rights obligations and related matters.

(b) The designee of the Assistant to the President for National Security Affairs shall chair the Interagency Working Group, which shall consist of appropriate policy and legal representatives at the Assistant Secretary level from the Department of State, the Department of Justice, the Department of Labor, the Department of Defense, the Joint Chiefs of Staff, and other agencies as the chair deems appropriate. The principal members may designate alternates to attend meetings in their stead.

(c) The principal functions of the Interagency Working Group shall include:

(i) coordinating the interagency review of any significant issues concerning the implementation of this order and analysis and recommendations in connection with pursuing the ratification of human rights treaties, as such questions may from time to time arise;

(ii) coordinating the preparation of reports that are to be submitted by the United States in fulfillment of treaty obligations;

(iii) coordinating the responses of the United States Government to complaints against it concerning alleged human rights violations submitted to the United Nations, the Organization of American States, and other international organizations;

(iv) developing effective mechanisms to ensure that legislation proposed by the Administration is reviewed for conformity with international human rights obligations and that these obligations are taken into account in reviewing legislation under consideration by the Congress as well;

(v) developing recommended proposals and mechanisms for improving the monitoring of the actions by the various States, Commonwealths, and territories of the United States and, where appropriate, of Native Americans and Federally recognized Indian tribes, including the review of State, Commonwealth, and territorial laws for their conformity with relevant treaties, the provision of relevant information for reports and other monitoring purposes, and the promotion of effective remedial mechanisms;

(vi) developing plans for public outreach and education concerning the provisions of the ICCPR, CAT, CERD, and other relevant treaties, and human rights-related provisions of domestic law;

(vii) coordinating and directing an annual review of United States reservations, declarations, and understandings to human rights treaties, and matters as to which there have been nontrivial complaints or allegations of inconsistency with or breach of international human rights obligations, in order to determine whether there should be consideration of any modification of relevant reservations, declarations, and understandings to human rights treaties, or United States practices or laws. The results and recommendations of this review shall be reviewed by the head of each participating agency;

(viii) making such other recommendations as it shall deem appropriate to the President, through the Assistant to the President for National Security Affairs, concerning United States adherence to or implementation of human rights treaties and related matters; and

(ix) coordinating such other significant tasks in connection with human rights treaties or international human rights institutions, including the Inter-American Commission on Human Rights and the Special Rapporteurs and complaints procedures established by the United Nations Human Rights Commission.

(d) The work of the Interagency Working Group shall not supplant the work of other interagency entities, including the President's Committee on the International Labor Organization, that address international human rights issues.

Sec. 5. Cooperation Among Executive Departments and Agencies. All agencies shall cooperate in carrying out the provisions of this order. The Interagency Working Group shall facilitate such cooperative measures.

Sec. 6. Judicial Review, Scope, and Administration. (a) Nothing in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

(b) This order does not supersede Federal statutes and does not impose any justiciable obligations on the executive branch.

(c) The term "treaty obligations" shall mean treaty obligations as approved by the Senate pursuant to Article II, section 2, clause 2 of the United States Constitution.

(d) To the maximum extent practicable and subject to the availability of appropriations, agencies shall carry out the provisions of this order.

William J. Clinton.      

Ex. Ord. No. 13132. Federalism

Ex. Ord. No. 13132, Aug. 4, 1999, 64 F.R. 43255, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guarantee the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution, to ensure that the principles of federalism established by the Framers guide the executive departments and agencies in the formulation and implementation of policies, and to further the policies of the Unfunded Mandates Reform Act [of 1995, Pub. L. 104–4, see Tables for classification], it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) "Policies that have federalism implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

(b) "State" or "States" refer to the States of the United States of America, individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions established by the States.

(c) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(d) "State and local officials" means elected officials of State and local governments or their representative national organizations.

Sec. 2. Fundamental Federalism Principles. In formulating and implementing policies that have federalism implications, agencies shall be guided by the following fundamental federalism principles:

(a) Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people.

(b) The people of the States created the national government and delegated to it enumerated governmental powers. All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or to the people.

(c) The constitutional relationship among sovereign governments, State and national, is inherent in the very structure of the Constitution and is formalized in and protected by the Tenth Amendment to the Constitution.

(d) The people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the moral, political, and legal character of their lives.

(e) The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy.

(f) The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to public issues. One-size-fits-all approaches to public policy problems can inhibit the creation of effective solutions to those problems.

(g) Acts of the national government—whether legislative, executive, or judicial in nature—that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.

(h) Policies of the national government should recognize the responsibility of—and should encourage opportunities for—individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort.

(i) The national government should be deferential to the States when taking action that affects the policymaking discretion of the States and should act only with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government.

Sec. 3. Federalism Policymaking Criteria. In addition to adhering to the fundamental federalism principles set forth in section 2, agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have federalism implications:

(a) There shall be strict adherence to constitutional principles. Agencies shall closely examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and shall carefully assess the necessity for such action. To the extent practicable, State and local officials shall be consulted before any such action is implemented. Executive Order 12372 of July 14, 1982 ("Intergovernmental Review of Federal Programs") [31 U.S.C. 6506 note] remains in effect for the programs and activities to which it is applicable.

(b) National action limiting the policymaking discretion of the States shall be taken only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance. Where there are significant uncertainties as to whether national action is authorized or appropriate, agencies shall consult with appropriate State and local officials to determine whether Federal objectives can be attained by other means.

(c) With respect to Federal statutes and regulations administered by the States, the national government shall grant the States the maximum administrative discretion possible. Intrusive Federal oversight of State administration is neither necessary nor desirable.

(d) When undertaking to formulate and implement policies that have federalism implications, agencies shall:

(1) encourage States to develop their own policies to achieve program objectives and to work with appropriate officials in other States;

(2) where possible, defer to the States to establish standards;

(3) in determining whether to establish uniform national standards, consult with appropriate State and local officials as to the need for national standards and any alternatives that would limit the scope of national standards or otherwise preserve State prerogatives and authority; and

(4) where national standards are required by Federal statutes, consult with appropriate State and local officials in developing those standards.

Sec. 4. Special Requirements for Preemption. Agencies, in taking action that preempts State law, shall act in strict accordance with governing law.

(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.

(b) Where a Federal statute does not preempt State law (as addressed in subsection (a) of this section), agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.

(c) Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.

(d) When an agency foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.

(e) When an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.

Sec. 5. Special Requirements for Legislative Proposals. Agencies shall not submit to the Congress legislation that would:

(a) directly regulate the States in ways that would either interfere with functions essential to the States' separate and independent existence or be inconsistent with the fundamental federalism principles in section 2;

(b) attach to Federal grants conditions that are not reasonably related to the purpose of the grant; or

(c) preempt State law, unless preemption is consistent with the fundamental federalism principles set forth in section 2, and unless a clearly legitimate national purpose, consistent with the federalism policymaking criteria set forth in section 3, cannot otherwise be met.

Sec. 6. Consultation.

(a) Each agency shall have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. Within 90 days after the effective date of this order, the head of each agency shall designate an official with principal responsibility for the agency's implementation of this order and that designated official shall submit to the Office of Management and Budget a description of the agency's consultation process.

(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless:

(1) funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation are provided by the Federal Government; or

(2) the agency, prior to the formal promulgation of the regulation,

(A) consulted with State and local officials early in the process of developing the proposed regulation;

(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and

(C) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.

(c) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications and that preempts State law, unless the agency, prior to the formal promulgation of the regulation,

(1) consulted with State and local officials early in the process of developing the proposed regulation;

(2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and

(3) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.

Sec. 7. Increasing Flexibility for State and Local Waivers.

(a) Agencies shall review the processes under which State and local governments apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.

(b) Each agency shall, to the extent practicable and permitted by law, consider any application by a State for a waiver of statutory or regulatory requirements in connection with any program administered by that agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the State or local level in cases in which the proposed waiver is consistent with applicable Federal policy objectives and is otherwise appropriate.

(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency. If the application for a waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.

(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.

Sec. 8. Accountability.

(a) In transmitting any draft final regulation that has federalism implications to the Office of Management and Budget pursuant to Executive Order 12866 of September 30, 1993 [set out above], each agency shall include a certification from the official designated to ensure compliance with this order stating that the requirements of this order have been met in a meaningful and timely manner.

(b) In transmitting proposed legislation that has federalism implications to the Office of Management and Budget, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant requirements of this order have been met.

(c) Within 180 days after the effective date of this order, the Director of the Office of Management and Budget and the Assistant to the President for Intergovernmental Affairs shall confer with State and local officials to ensure that this order is being properly and effectively implemented.

Sec. 9. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.

Sec. 10. General Provisions.

(a) This order shall supplement but not supersede the requirements contained in Executive Order 12372 ("Intergovernmental Review of Federal Programs") [31 U.S.C. 6506 note], Executive Order 12866 ("Regulatory Planning and Review") [set out above], Executive Order 12988 ("Civil Justice Reform" [28 U.S.C. 519 note]), and OMB Circular A–19.

(b) Executive Order 12612 ("Federalism"), Executive Order 12875 ("Enhancing the Intergovernmental Partnership"), Executive Order 13083 ("Federalism"), and Executive Order 13095 ("Suspension of Executive Order 13083") are revoked.

(c) This order shall be effective 90 days after the date of this order.

Sec. 11. Judicial Review. This order is intended only to improve the internal management of the executive branch, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

William J. Clinton.      

Ex. Ord. No. 13198. Agency Responsibilities With Respect to Faith-Based and Community Initiatives

Ex. Ord. No. 13198, Jan. 29, 2001, 66 F.R. 8497, as amended by Ex. Ord. No. 13831, §2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, §5(a), Feb. 14, 2021, 86 F.R. 10008, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet social needs in America's communities, it is hereby ordered as follows:

Section 1. Establishment of Executive Department Centers for Faith-Based and Neighborhood Partnerships. (a) The Attorney General, the Secretary of Education, the Secretary of Labor, the Secretary of Health and Human Services, and the Secretary of Housing and Urban Development shall each establish within their respective departments a Center for Faith-Based and Neighborhood Partnerships (Center).

(b) Each executive department Center shall be supervised by a Director, appointed by the department head in consultation with the White House Office of Faith-Based and Neighborhood Partnerships (White House Office of Faith-Based and Neighborhood Partnerships).

(c) Each department shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) Each department's Center shall begin operations no later than 45 days from the date of this order.

Sec. 2. Purpose of Executive Department Centers for Faith-Based and Neighborhood Partnerships. The purpose of the executive department Centers will be to coordinate department efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services.

Sec. 3. Responsibilities of Executive Department Centers for Faith-Based and Neighborhood Partnerships. Each Center shall, to the extent permitted by law: (a) conduct, in coordination with the White House Office of Faith-Based and Neighborhood Partnerships, a department-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social services by the department, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;

(b) coordinate a comprehensive departmental effort to incorporate faith-based and other community organizations in department programs and initiatives to the greatest extent possible;

(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and

(e) develop and coordinate department outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other department initiatives, including but not limited to Web and Internet resources.

Sec. 4. Additional Responsibilities of the Department of Health and Human Services and the Department of Labor Centers. In addition to those responsibilities described in section 3 of this order, the Department of Health and Human Services and the Department of Labor Centers shall, to the extent permitted by law: (a) conduct a comprehensive review of policies and practices affecting existing funding streams governed by so-called "Charitable Choice" legislation to assess the department's compliance with the requirements of Charitable Choice; and (b) promote and ensure compliance with existing Charitable Choice legislation by the department, as well as its partners in State and local government, and their contractors.

Sec. 5. Reporting Requirements. (a) Report. Not later than 180 days after the date of this order and annually thereafter, each of the five executive department Centers described in section 1 of this order shall prepare and submit a report to the White House Office of Faith-Based and Neighborhood Partnerships.

(b) Contents. The report shall include a description of the department's efforts in carrying out its responsibilities under this order, including but not limited to:

(1) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and

(2) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the department and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report, filed 180 days after the date of this order, shall include annual performance indicators and measurable objectives for department action. Each report filed thereafter shall measure the department's performance against the objectives set forth in the initial report.

Sec. 6. Responsibilities of All Executive Departments and Agencies. All executive departments and agencies (agencies) shall: (a) designate an agency employee to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and

(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.

Sec. 7. Administration and Judicial Review. (a) The agencies' actions directed by this Executive Order shall be carried out subject to the availability of appropriations and to the extent permitted by law.

(b) This order does not create any right or benefit, substantive or procedural, enforceable at law or equity against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Ex. Ord. No. 13272. Proper Consideration of Small Entities in Agency Rulemaking

Ex. Ord. No. 13272, Aug. 13, 2002, 67 F.R. 53461, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. General Requirements. Each agency shall establish procedures and policies to promote compliance with the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.) (the "Act"). Agencies shall thoroughly review draft rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the Act. The Chief Counsel for Advocacy of the Small Business Administration (Advocacy) shall remain available to advise agencies in performing that review consistent with the provisions of the Act.

Sec. 2. Responsibilities of Advocacy. Consistent with the requirements of the Act, other applicable law, and Executive Order 12866 of September 30, 1993, as amended [set out above], Advocacy:

(a) shall notify agency heads from time to time of the requirements of the Act, including by issuing notifications with respect to the basic requirements of the Act within 90 days of the date of this order;

(b) shall provide training to agencies on compliance with the Act; and

(c) may provide comment on draft rules to the agency that has proposed or intends to propose the rules and to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OIRA).

Sec. 3. Responsibilities of Federal Agencies. Consistent with the requirements of the Act and applicable law, agencies shall:

(a) Within 180 days of the date of this order, issue written procedures and policies, consistent with the Act, to ensure that the potential impacts of agencies' draft rules on small businesses, small governmental jurisdictions, and small organizations are properly considered during the rulemaking process. Agency heads shall submit, no later than 90 days from the date of this order, their written procedures and policies to Advocacy for comment. Prior to issuing final procedures and policies, agencies shall consider any such comments received within 60 days from the date of the submission of the agencies' procedures and policies to Advocacy. Except to the extent otherwise specifically provided by statute or Executive Order, agencies shall make the final procedures and policies available to the public through the Internet or other easily accessible means;

(b) Notify Advocacy of any draft rules that may have a significant economic impact on a substantial number of small entities under the Act. Such notifications shall be made (i) when the agency submits a draft rule to OIRA under Executive Order 12866 [set out above] if that order requires such submission, or (ii) if no submission to OIRA is so required, at a reasonable time prior to publication of the rule by the agency; and

(c) Give every appropriate consideration to any comments provided by Advocacy regarding a draft rule. Consistent with applicable law and appropriate protection of executive deliberations and legal privileges, an agency shall include, in any explanation or discussion accompanying publication in the Federal Register of a final rule, the agency's response to any written comments submitted by Advocacy on the proposed rule that preceded the final rule; provided, however, that such inclusion is not required if the head of the agency certifies that the public interest is not served thereby. Agencies and Advocacy may, to the extent permitted by law, engage in an exchange of data and research, as appropriate, to foster the purposes of the Act.

Sec. 4. Definitions. Terms defined in section 601 of title 5, United States Code, including the term "agency," shall have the same meaning in this order.

Sec. 5. Preservation of Authority. Nothing in this order shall be construed to impair or affect the authority of the Administrator of the Small Business Administration to supervise the Small Business Administration as provided in the first sentence of section 2(b)(1) of Public Law 85–09536 [Pub. L. 85–536] (15 U.S.C. 633(b)(1)).

Sec. 6. Reporting. For the purpose of promoting compliance with this order, Advocacy shall submit a report not less than annually to the Director of the Office of Management and Budget on the extent of compliance with this order by agencies.

Sec. 7. Confidentiality. Consistent with existing law, Advocacy may publicly disclose information that it receives from the agencies in the course of carrying out this order only to the extent that such information already has been lawfully and publicly disclosed by OIRA or the relevant rulemaking agency.

Sec. 8. Judicial Review. This order is intended only to improve the internal management of the Federal Government. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

George W. Bush.      

Ex. Ord. No. 13279. Equal Protection of the Laws for Faith-Based and Other Neighborhood Organizations

Ex. Ord. No. 13279, Dec. 12, 2002, 67 F.R. 77141, as amended by Ex. Ord. No. 13403, §2, May 12, 2006, 71 F.R. 28543; Ex. Ord. No. 13559, Nov. 17, 2010, 75 F.R. 71319; Ex. Ord. No. 13831, §2, May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, §5(a), Feb. 14, 2021, 86 F.R. 10008, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 121(a) of title 40, United States Code, and section 301 of title 3, United States Code, and in order to guide Federal agencies in formulating and developing policies with implications for faith-based organizations and other other [sic] neighborhood organizations, to ensure equal protection of the laws for faith-based and other neighborhood organizations, to further the national effort to expand opportunities for, and strengthen the capacity of, faith-based and other other [sic] neighborhood organizations so that they may better meet social needs in America's communities, and to ensure the economical and efficient administration and completion of Government contracts, it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:

(a) "Federal financial assistance" means assistance that non-Federal entities receive or administer in the form of grants, contracts, loans, loan guarantees, property, cooperative agreements, food commodities, direct appropriations, or other assistance, but does not include a tax credit, deduction, or exemption.

(b) "Social service program" means a program that is administered by the Federal Government, or by a State or local government using Federal financial assistance, and that provides services directed at reducing poverty, improving opportunities for low-income children, revitalizing low-income communities, empowering low-income families and low-income individuals to become self-sufficient, or otherwise helping people in need. Such programs include, but are not limited to, the following:

(i) child care services, protective services for children and adults, services for children and adults in foster care, adoption services, services related to the management and maintenance of the home, day care services for adults, and services to meet the special needs of children, older individuals, and individuals with disabilities (including physical, mental, or emotional disabilities);

(ii) transportation services;

(iii) job training and related services, and employment services;

(iv) information, referral, and counseling services;

(v) the preparation and delivery of meals and services related to soup kitchens or food banks;

(vi) health support services;

(vii) literacy and mentoring programs;

(viii) services for the prevention and treatment of juvenile delinquency and substance abuse, services for the prevention of crime and the provision of assistance to the victims and the families of criminal offenders, and services related to intervention in, and prevention of, domestic violence; and

(ix) services related to the provision of assistance for housing under Federal law.

(c) "Policies that have implications for faith-based and other neighborhood organizations" refers to all policies, programs, and regulations, including official guidance and internal agency procedures, that have significant effects on faith-based organizations participating in or seeking to participate in social service programs supported with Federal financial assistance.

(d) "Agency" means a department or agency in the executive branch.

(e) "Specified agency heads" means:

(i) the Attorney General;

(ii) the Secretary of Agriculture;

(iii) the Secretary of Commerce;

(iv) the Secretary of Labor;

(v) the Secretary of Health and Human Services;

(vi) the Secretary of Housing and Urban Development;

(vii) the Secretary of Education;

(viii) the Secretary of Veterans Affairs;

(ix) the Secretary of Homeland Security;

(x) the Administrator of the Environmental Protection Agency;

(xi) the Administrator of the Small Business Administration;

(xii) the Administrator of the United States Agency for International Development; and

(xiii) the Chief Executive Officer of the Corporation for National and Community Service.

Sec. 2. Fundamental Principles. In formulating and implementing policies that have implications for faith-based and other neighborhood organizations, agencies that administer social service programs or that support (including through prime awards or sub-awards) social service programs with Federal financial assistance shall, to the extent permitted by law, be guided by the following fundamental principles:

(a) Federal financial assistance for social service programs should be distributed in the most effective and efficient manner possible.

(b) The Nation's social service capacity will benefit if all eligible organizations, including faith-based and other neighborhood organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs.

(c) No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.

(d) All organizations that receive Federal financial assistance under social service programs should be prohibited from discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.

(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, as well as other applicable law, and must monitor and enforce standards regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f) Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance (including through prime awards or sub-awards), separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.

(g) Faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in question, or religious character. Accordingly, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance that it receives (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law. Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.

(h) To promote transparency and accountability, agencies that provide Federal financial assistance for social service programs shall post online, in an easily accessible manner, regulations, guidance documents, and policies that reflect or elaborate upon the fundamental principles described in this section. Agencies shall also post online a list of entities that receive Federal financial assistance for provision of social service programs, consistent with law and pursuant to guidance set forth in paragraph (c) of section 3 of this order.

(i) Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof.

Sec. 3. Ensuring Uniform Implementation Across the Federal Government. In order to promote uniformity in agencies' policies that have implications for faith-based and other neighborhood organizations and in related guidance, and to ensure that those policies and guidance are consistent with the fundamental principles set forth in section 2 of this order, there is established an Interagency Working Group on Faith-Based and Other Neighborhood Partnerships (Working Group).

(a) Mission and Function of the Working Group. The Working Group shall meet periodically to review and evaluate existing agency regulations, guidance documents, and policies that have implications for faith-based and other neighborhood organizations. Where appropriate, specified agency heads shall, to the extent permitted by law, amend all such existing policies of their respective agencies to ensure that they are consistent with the fundamental principles set forth in section 2 of this order.

(b) Uniform Agency Implementation. Within 120 days of the date of this order, the Working Group shall submit a report to the President on amendments, changes, or additions that are necessary to ensure that regulations and guidance documents associated with the distribution of Federal financial assistance for social service programs are consistent with the fundamental principles set forth in section 2 of this order. The Working Group's report should include, but not be limited to, a model set of regulations and guidance documents for agencies to adopt in the following areas:

(i) prohibited uses of direct Federal financial assistance and separation requirements; (ii) protections for religious identity; (iii) the distinction between "direct" and "indirect" Federal financial assistance; (iv) protections for beneficiaries of social service programs; (v) transparency requirements, consistent with and in furtherance of existing open government initiatives; (vi) obligations of nongovernmental and governmental intermediaries; (vii) instructions for peer reviewers and those who recruit peer reviewers; and (viii) training on these matters for government employees and for Federal, State, and local governmental and nongovernmental organizations that receive Federal financial assistance under social service programs. In developing this report and in reviewing agency regulations and guidance for consistency with section 2 of this order, the Working Group shall consult the March 2010 report and recommendations prepared by the President's Advisory Council on Faith-Based and Neighborhood Partnerships on the topic of reforming the White House Office of Faith-Based and Neighborhood Partnerships.

(c) Guidance. The Director of the Office of Management and Budget (OMB), following receipt of a copy of the report of the Working Group, and in coordination with the Department of Justice, shall issue guidance to agencies on the implementation of this order, including in particular subsections 2(h)–(j).

(d) Membership of the Working Group. The Director of the White House Office of Faith-Based and Neighborhood Partnerships and a senior official from the OMB designated by the Director of the OMB shall serve as the Co-Chairs of the Working Group. The Co-Chairs shall convene regular meetings of the Working Group, determine its agenda, and direct its work. In addition to the Co-Chairs, the Working Group shall consist of a senior official with knowledge of policies that have implications for faith-based and other neighborhood organizations from the following agencies and offices:

(i) the Department of State;

(ii) the Department of Justice;

(iii) the Department of the Interior;

(iv) the Department of Agriculture;

(v) the Department of Commerce;

(vi) the Department of Labor;

(vii) the Department of Health and Human Services;

(viii) the Department of Housing and Urban Development;

(ix) the Department of Education;

(x) the Department of Veterans Affairs;

(xi) the Department of Homeland Security;

(xii) the Environmental Protection Agency;

(xiii) the Small Business Administration;

(xiv) the United States Agency for International Development;

(xv) the Corporation for National and Community Service; and

(xvi) other agencies and offices as the President, from time to time, may designate.

(e) Administration of the Initiative. The Department of Health and Human Services shall provide funding and administrative support for the Working Group to the extent permitted by law and within existing appropriations.

Sec. 4. Amendment of Executive Order 11246.

Pursuant to section 121(a) of title 40, United States Code, and section 301 of title 3, United States Code, and in order to further the strong Federal interest in ensuring that the cost and progress of Federal procurement contracts are not adversely affected by an artificial restriction of the labor pool caused by the unwarranted exclusion of faith-based organizations from such contracts, section 204 of Executive Order 11246 of September 24, 1965, as amended, [42 U.S.C. 2000e note] is hereby further amended to read as follows:

"SEC. 204 (a) The Secretary of Labor may, when the Secretary deems that special circumstances in the national interest so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order.

(b) The Secretary of Labor may, by rule or regulation, exempt certain classes of contracts, subcontracts, or purchase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified tier.

(c) Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.

(d) The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor that are in all respects separate and distinct from activities of the contractor related to the performance of the contract: provided, that such an exemption will not interfere with or impede the effectuation of the purposes of this Order: and provided further, that in the absence of such an exemption all facilities shall be covered by the provisions of this Order."

Sec. 5. General Provisions.

(a) This order supplements but does not supersede the requirements contained in Executive Orders 13198 [set out above] and 13199 [3 U.S.C. note prec. 101] of January 29, 2001.

(b) The agencies shall coordinate with the White House Office of Faith-Based and Neighborhood Partnerships concerning the implementation of this order.

(c) Nothing in this order shall be construed to require an agency to take any action that would impair the conduct of foreign affairs or the national security.

Sec. 6. Responsibilities of Executive Departments and Agencies. All executive departments and agencies (agencies) shall:

(a) designate an agency employee to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and

(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.

Sec. 7. Judicial Review.

This order is intended only to improve the internal management of the executive branch, and it is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, or entities, its officers, employees or agents, or any person.

Ex. Ord. No. 13280. Responsibilities of the Department of Agriculture and the Agency for International Development With Respect to Faith-Based and Community Initiatives

Ex. Ord. No. 13280, Dec. 12, 2002, 67 F.R. 77145, as amended by Ex. Ord. No. 13831, §2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, §5(a), Feb. 14, 2021, 86 F.R. 10008, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet social needs in America's communities, it is hereby ordered as follows:

Section 1. Establishment of Centers for Faith-Based and Neighborhood Partnerships at the Department of Agriculture and the Agency for International Development. (a) The Secretary of Agriculture and the Administrator of the Agency for International Development shall each establish within their respective agencies a Center for Faith-Based and Neighborhood Partnerships (Center).

(b) Each of these Centers shall be supervised by a Director, appointed by the agency head in consultation with the White House Office of Faith-Based and Neighborhood Partnerships (White House Office of Faith-Based and Neighborhood Partnerships).

(c) Each agency shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) Each Center shall begin operations no later than 45 days from the date of this order.

Sec. 2. Purpose of Executive Branch Centers for Faith-Based and Neighborhood Partnerships. The purpose of the agency Centers will be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services.

Sec. 3. Responsibilities of the Centers for Faith-Based and Neighborhood Partnerships. Each Center shall, to the extent permitted by law:

(a) conduct, in coordination with the White House Office of Faith-Based and Neighborhood Partnerships, an agency-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social services by the agency, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;

(b) coordinate a comprehensive agency effort to incorporate faith-based and other community organizations in agency programs and initiatives to the greatest extent possible;

(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and

(e) develop and coordinate agency outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other agency initiatives, including but not limited to Web and Internet resources.

Sec. 4. Reporting Requirements.

(a) Report. Not later than 180 days from the date of this order and annually thereafter, each of the two Centers described in section 1 of this order shall prepare and submit a report to the White House Office of Faith-Based and Neighborhood Partnerships.

(b) Contents. The report shall include a description of the agency's efforts in carrying out its responsibilities under this order, including but not limited to:

(i) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and

(ii) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report, filed 180 days after the date of this order, shall include annual performance indicators and measurable objectives for agency action. Each report filed thereafter shall measure the agency's performance against the objectives set forth in the initial report.

Sec. 5. Responsibilities of the Secretary of Agriculture and the Administrator of the Agency for International Development. The Secretary and the Administrator shall:

(a) designate an employee within their respective agencies to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and

(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.

Sec. 6. Administration and Judicial Review. (a) The agency actions directed by this executive order shall be carried out subject to the availability of appropriations and to the extent permitted by law.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, or entities, its officers, employees or agents, or any other person.

Ex. Ord. No. 13342. Responsibilities of the Departments of Commerce and Veterans Affairs and the Small Business Administration With Respect to Faith-Based and Community Initiatives

Ex. Ord. No. 13342, June 1, 2004, 69 F.R. 31509, as amended by Ex. Ord. No. 13831, §2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, §5(a), Feb. 14, 2021, 86 F.R. 10008, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet America's social and community needs, it is hereby ordered as follows:

Section 1. Establishment of Centers for Faith-Based and Neighborhood Partnerships at the Departments of Commerce and Veterans Affairs and the Small Business Administration.

(a) The Secretaries of Commerce and Veterans Affairs and the Administrator of the Small Business Administration shall each establish within their respective agencies a Center for Faith-Based and Neighborhood Partnerships (Center).

(b) Each of these Centers shall be supervised by a Director, appointed by the agency head in consultation with the White House Office of Faith-Based and Neighborhood Partnerships (White House Office of Faith-Based and Neighborhood Partnerships).

(c) Each agency shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) Each Center shall begin operations no later than 45 days from the date of this order.

Sec. 2. Purpose of Executive Branch Centers for Faith-Based and Neighborhood Partnerships. The purpose of the agency Centers will be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social and community services.

Sec. 3. Responsibilities of the Centers for Faith-Based and Neighborhood Partnerships. Each Center shall, to the extent permitted by law:

(a) conduct, in coordination with the White House Office of Faith-Based and Neighborhood Partnerships, an agency-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social and community services by the agency, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;

(b) coordinate a comprehensive agency effort to incorporate faith-based and other community organizations in agency programs and initiatives to the greatest extent possible;

(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and

(e) develop and coordinate agency outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other agency initiatives, including but not limited to Web and Internet resources.

Sec. 4. Reporting Requirements. (a) Report. Not later than 180 days from the date of this order and annually thereafter, each of the three Centers described in section 1 of this order shall prepare and submit a report to the President through the White House Office of Faith-Based and Neighborhood Partnerships.

(b) Contents. The report shall include a description of the agency's efforts in carrying out its responsibilities under this order, including but not limited to:

(i) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social and community services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and

(ii) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report, filed pursuant to section 4(a) of this order, shall include annual performance indicators and measurable objectives for agency action. Each report filed thereafter shall measure the agency's performance against the objectives set forth in the initial report.

Sec. 5. Responsibilities of the Secretaries of Commerce and Veterans Affairs and the Administrator of the Small Business Administration. The Secretaries and the Administrator shall:

(a) designate an employee within their respective agencies to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and

(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.

Sec. 6. Administration and Judicial Review. (a) The agency actions directed by this executive order shall be carried out subject to the availability of appropriations and to the extent permitted by law.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person.

Ex. Ord. No. 13397. Responsibilities of the Department of Homeland Security With Respect to Faith-Based and Community Initiatives

Ex. Ord. No. 13397, Mar. 7, 2006, 71 F.R. 12275, as amended by Ex. Ord. No. 13831, §2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, §5, Feb. 14, 2021, 86 F.R. 10008, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet America's social and community needs, it is hereby ordered as follows:

Section 1. Establishment of a Center for Faith-Based and Neighborhood Partnerships at the Department of Homeland Security.

(a) The Secretary of Homeland Security (Secretary) shall establish within the Department of Homeland Security (Department) a Center for Faith-Based and Neighborhood Partnerships (Center).

(b) The Center shall be supervised by a Director appointed by [the] Secretary. The Secretary shall consult with the Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships (Executive Director) prior to making such appointment.

(c) The Department shall provide the Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) The Center shall begin operations no later than 45 days from the date of this order.

Sec. 2. Purpose of Center. The purpose of the Center shall be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social and community services.

Sec. 3. Responsibilities of the Center for Faith-Based and Neighborhood Partnerships. In carrying out the purpose set forth in section 2 of this order, the Center shall:

(a) conduct, in coordination with the Executive Director, a department-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social and community services by the Department, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that unlawfully discriminate against, or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;

(b) coordinate a comprehensive departmental effort to incorporate faith-based and other community organizations in Department programs and initiatives to the greatest extent possible;

(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and

(e) develop and coordinate Departmental outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other agency initiatives, including but not limited to Web and Internet resources.

Sec. 4. Reporting Requirements.

(a) Report. Not later than 180 days from the date of this order and annually thereafter, the Center shall prepare and submit a report to the Executive Director.

(b) Contents. The report shall include a description of the Department's efforts in carrying out its responsibilities under this order, including but not limited to:

(i) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social and community services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and

(ii) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report shall include annual performance indicators and measurable objectives for Departmental action. Each report filed thereafter shall measure the Department's performance against the objectives set forth in the initial report.

Sec. 5. Responsibilities of the Secretary. The Secretary shall:

(a) designate an employee within the department to serve as the liaison and point of contact with the Executive Director; and

(b) cooperate with the Executive Director and provide such information, support, and assistance to the Executive Director as requested to implement this order.

Sec. 6. General Provisions. (a) This order shall be implemented subject to the availability of appropriations and to the extent permitted by law.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, or entities, its officers, employees, or agents, or any other person.

Ex. Ord. No. 13406. Protecting the Property Rights of the American People

Ex. Ord. No. 13406, June 23, 2006, 71 F.R. 36973, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

Sec. 2. Implementation. (a) The Attorney General shall:

(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and

(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.

(b) Heads of departments and agencies shall, to the extent permitted by law:

(i) comply with instructions issued under subsection (a)(i); and

(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).

Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:

(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;

(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;

(c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;

(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;

(e) acquiring abandoned property;

(f) quieting title to real property;

(g) acquiring ownership or use by a public utility;

(h) facilitating the disposal or exchange of Federal property; or

(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

George W. Bush.      

Ex. Ord. No. 13497. Revocation of Certain Executive Orders Concerning Regulatory Planning and Review

Ex. Ord. No. 13497, Jan. 30, 2009, 74 F.R. 6113, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered that:

Section 1. Executive Order 13258 of February 26, 2002, and Executive Order 13422 of January 18, 2007, concerning regulatory planning and review, which amended Executive Order 12866 of September 30, 1993, are revoked.

Sec. 2. The Director of the Office of Management and Budget and the heads of executive departments and agencies shall promptly rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 13258 or Executive Order 13422, to the extent consistent with law.

Sec. 3. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13563. Improving Regulation and Regulatory Review

Ex. Ord. No. 13563, Jan. 18, 2011, 76 F.R. 3821, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:

Section 1. General Principles of Regulation. (a) Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.

(b) This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

(c) In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

Sec. 2. Public Participation. (a) Regulations shall be adopted through a process that involves public participation. To that end, regulations shall be based, to the extent feasible and consistent with law, on the open exchange of information and perspectives among State, local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole.

(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.

(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking.

Sec. 3. Integration and Innovation. Some sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, thus reducing costs and simplifying and harmonizing rules. In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization. Each agency shall also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.

Sec. 4. Flexible Approaches. Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.

Sec. 5. Science. Consistent with the President's Memorandum for the Heads of Executive Departments and Agencies, "Scientific Integrity" (March 9, 2009), and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.

Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.

(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

Sec. 7. General Provisions. (a) For purposes of this order, "agency" shall have the meaning set forth in section 3(b) of Executive Order 12866.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13579. Regulation and Independent Regulatory Agencies

Ex. Ord. No. 13579, July 11, 2011, 76 F.R. 41587, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:

Section 1. Policy. (a) Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. Such decisions are informed and improved by allowing interested members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).

(b) Executive Order 13563 of January 18, 2011, "Improving Regulation and Regulatory Review," directed to executive agencies, was meant to produce a regulatory system that protects "public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation." Independent regulatory agencies, no less than executive agencies, should promote that goal.

(c) Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well.

Sec. 2. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, independent regulatory agencies should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data and evaluations, should be released online whenever possible.

(b) Within 120 days of the date of this order, each independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

Sec. 3. General Provisions. (a) For purposes of this order, "executive agency" shall have the meaning set forth for the term "agency" in section 3(b) of Executive Order 12866 of September 30, 1993, and "independent regulatory agency" shall have the meaning set forth in 44 U.S.C. 3502(5).

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13604. Improving Performance of Federal Permitting and Review of Infrastructure Projects

Ex. Ord. No. 13604, Mar. 22, 2012, 77 F.R. 18887, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to significantly reduce the aggregate time required to make decisions in the permitting and review of infrastructure projects by the Federal Government, while improving environmental and community outcomes, it is hereby ordered as follows:

Section 1. Policy. (a) To maintain our Nation's competitive edge and ensure an economy built to last, the United States must have fast, reliable, resilient, and environmentally sound means of moving people, goods, energy, and information. In a global economy, we will compete for the world's investments based in significant part on the quality of our infrastructure. Investing in the Nation's infrastructure provides immediate and long-term economic benefits for local communities and the Nation as a whole.

The quality of our Nation's infrastructure depends in critical part on Federal permitting and review processes, including planning, approval, and consultation processes. These processes inform decision-makers and affected communities about the potential benefits and impacts of proposed infrastructure projects, and ensure that projects are designed, built, and maintained in a manner that is consistent with protecting our public health, welfare, safety, national security, and environment. Reviews and approvals of infrastructure projects can be delayed due to many factors beyond the control of the Federal Government, such as poor project design, incomplete applications, uncertain funding, or multiple reviews and approvals by State, local, tribal, or other jurisdictions. Given these factors, it is critical that executive departments and agencies (agencies) take all steps within their authority, consistent with available resources, to execute Federal permitting and review processes with maximum efficiency and effectiveness, ensuring the health, safety, and security of communities and the environment while supporting vital economic growth.

To achieve that objective, our Federal permitting and review processes must provide a transparent, consistent, and predictable path for both project sponsors and affected communities. They must ensure that agencies set and adhere to timelines and schedules for completion of reviews, set clear permitting performance goals, and track progress against those goals. They must encourage early collaboration among agencies, project sponsors, and affected stakeholders in order to incorporate and address their interests and minimize delays. They must provide for transparency and accountability by utilizing cost-effective information technology to collect and disseminate information about individual projects and agency performance, so that the priorities and concerns of all our citizens are considered. They must rely upon early and active consultation with State, local, and tribal governments to avoid conflicts or duplication of effort, resolve concerns, and allow for concurrent rather than sequential reviews. They must recognize the critical role project sponsors play in assuring the timely and cost-effective review of projects by providing complete information and analysis and by supporting, as appropriate, the costs associated with review. And, they must enable agencies to share priorities, work collaboratively and concurrently to advance reviews and permitting decisions, and facilitate the resolution of disputes at all levels of agency organization.

Each of these elements must be incorporated into routine agency practice to provide demonstrable improvements in the performance of Federal infrastructure permitting and review processes, including lower costs, more timely decisions, and a healthier and cleaner environment. Also, these elements must be integrated into project planning processes so that projects are designed appropriately to avoid, to the extent practicable, adverse impacts on public health, security, historic properties and other cultural resources, and the environment, and to minimize or mitigate impacts that may occur. Permitting and review process improvements that have proven effective must be expanded and institutionalized.

(b) In advancing this policy, this order expands upon efforts undertaken pursuant to Executive Order 13580 of July 12, 2011 (Interagency Working Group on Coordination of Domestic Energy Development and Permitting in Alaska), Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and my memorandum of August 31, 2011 (Speeding Infrastructure Development Through More Efficient and Effective Permitting and Environmental Review), as well as other ongoing efforts.

Sec. 2. Steering Committee on Federal Infrastructure Permitting and Review Process Improvement. There is established a Steering Committee on Federal Infrastructure Permitting and Review Process Improvement (Steering Committee), to be chaired by the Chief Performance Officer (CPO), in consultation with the Chair of the Council on Environmental Quality (CEQ).

(a) Infrastructure Projects Covered by this Order. The Steering Committee shall facilitate improvements in Federal permitting and review processes for infrastructure projects in sectors including surface transportation, aviation, ports and waterways, water resource projects, renewable energy generation, electricity transmission, broadband, pipelines, and other such sectors as determined by the Steering Committee.

(b) Membership. Each of the following agencies (Member Agencies) shall be represented on the Steering Committee by a Deputy Secretary or equivalent officer of the United States:

(i) the Department of Defense;

(ii) the Department of the Interior;

(iii) the Department of Agriculture;

(iv) the Department of Commerce;

(v) the Department of Transportation;

(vi) the Department of Energy;

(vii) the Department of Homeland Security;

(viii) the Environmental Protection Agency;

(ix) the Advisory Council on Historic Preservation;

(x) the Department of the Army; and

(xi) such other agencies or offices as the CPO may invite to participate.

(c) Projects of National or Regional Significance. In furtherance of the policies of this order, the Member Agencies shall coordinate and consult with each other to select, submit to the CPO by April 30, 2012, and periodically update thereafter, a list of infrastructure projects of national or regional significance that will have their status tracked on the online Federal Infrastructure Projects Dashboard (Dashboard) created pursuant to my memorandum of August 31, 2011.

(d) Responsibilities of the Steering Committee. The Steering Committee shall:

(i) develop a Federal Permitting and Review Performance Plan (Federal Plan), as described in section 3(a) of this order;

(ii) implement the Federal Plan and coordinate resolution of disputes among Member Agencies relating to implementation of the Federal Plan; and

(iii) coordinate and consult with other agencies, offices, and interagency working groups as necessary, including the President's Management Council and Performance Improvement Councils, and, with regard to use and expansion of the Dashboard, the Chief Information Officer (CIO) and Chief Technology Officer to implement this order.

(e) Duties of the CPO. The CPO shall:

(i) in consultation with the Chair of CEQ and Member Agencies, issue guidance on the implementation of this order;

(ii) in consultation with Member Agencies, develop and track performance metrics for evaluating implementation of the Federal Plan and Agency Plans; and

(iii) by January 31, 2013, and annually thereafter, after input from interested agencies, evaluate and report to the President on the implementation of the Federal Plan and Agency Plans, and publish the report on the Dashboard.

(f) No Involvement in Particular Permits or Projects. Neither the Steering Committee, nor the CPO, may direct or coordinate agency decisions with respect to any particular permit or project.

Sec. 3. Plans for Measurable Performance Improvement. (a) By May 31, 2012, the Steering Committee shall, following coordination with Member Agencies and other interested agencies, develop and publish on the Dashboard a Federal Plan to significantly reduce the aggregate time required to make Federal permitting and review decisions on infrastructure projects while improving outcomes for communities and the environment. The Federal Plan shall include, but not be limited to, the following actions to implement the policies outlined in section 1 of this order, and shall reflect the agreement of any Member Agency with respect to requirements in the Federal Plan affecting such agency:

(i) institutionalizing best practices for: enhancing Federal, State, local, and tribal government coordination on permitting and review processes (such as conducting reviews concurrently rather than sequentially to the extent practicable); avoiding duplicative reviews; and engaging with stakeholders early in the permitting process;

(ii) developing mechanisms to better communicate priorities and resolve disputes among agencies at the national and regional levels;

(iii) institutionalizing use of the Dashboard, working with the CIO to enhance the Dashboard, and utilizing other cost-effective information technology systems to share environmental and project-related information with the public, project sponsors, and permit reviewers; and

(iv) identifying timeframes and Member Agency responsibilities for the implementation of each proposed action.

(b) Each Member Agency shall:

(i) by June 30, 2012, submit to the CPO an Agency Plan identifying those permitting and review processes the Member Agency views as most critical to significantly reducing the aggregate time required to make permitting and review decisions on infrastructure projects while improving outcomes for communities and the environment, and describing specific and measurable actions the agency will take to improve these processes, including:

(1) performance metrics, including timelines or schedules for review;

(2) technological improvements, such as institutionalized use of the Dashboard and other information technology systems;

(3) other practices, such as pre-application procedures, early collaboration with other agencies, project sponsors, and affected stakeholders, and coordination with State, local, and tribal governments; and

(4) steps the Member Agency will take to implement the Federal Plan.

(ii) by July 31, 2012, following coordination with other Member Agencies and interested agencies, publish its Agency Plan on the Dashboard; and

(iii) by December 31, 2012, and every 6 months thereafter, report progress to the CPO on implementing its Agency Plan, as well as specific opportunities for additional improvements to its permitting and review procedures.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order shall be implemented consistent with Executive Order 13175 of November 6, 2000 (Consultation and Coordination with Indian Tribal Governments) and my memorandum of November 5, 2009 (Tribal Consultation).

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13609. Promoting International Regulatory Cooperation

Ex. Ord. No. 13609, May 1, 2012, 77 F.R. 26413, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote international regulatory cooperation, it is hereby ordered as follows:

Section 1. Policy. Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), states that our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. In an increasingly global economy, international regulatory cooperation, consistent with domestic law and prerogatives and U.S. trade policy, can be an important means of promoting the goals of Executive Order 13563.

The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

Sec. 2. Coordination of International Regulatory Cooperation. (a) The Regulatory Working Group (Working Group) established by Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), which was reaffirmed by Executive Order 13563, shall, as appropriate:

(i) serve as a forum to discuss, coordinate, and develop a common understanding among agencies of U.S. Government positions and priorities with respect to:

(A) international regulatory cooperation activities that are reasonably anticipated to lead to significant regulatory actions;

(B) efforts across the Federal Government to support significant, cross-cutting international regulatory cooperation activities, such as the work of regulatory cooperation councils; and

(C) the promotion of good regulatory practices internationally, as well as the promotion of U.S. regulatory approaches, as appropriate; and

(ii) examine, among other things:

(A) appropriate strategies for engaging in the development of regulatory approaches through international regulatory cooperation, particularly in emerging technology areas, when consistent with section 1 of this order;

(B) best practices for international regulatory cooperation with respect to regulatory development, and, where appropriate, information exchange and other regulatory tools; and

(C) factors that agencies should take into account when determining whether and how to consider other regulatory approaches under section 3(d) of this order.

(b) As Chair of the Working Group, the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) shall convene the Working Group as necessary to discuss international regulatory cooperation issues as described above, and the Working Group shall include a representative from the Office of the United States Trade Representative and, as appropriate, representatives from other agencies and offices.

(c) The activities of the Working Group, consistent with law, shall not duplicate the efforts of existing interagency bodies and coordination mechanisms. The Working Group shall consult with existing interagency bodies when appropriate.

(d) To inform its discussions, and pursuant to section 4 of Executive Order 12866, the Working Group may commission analytical reports and studies by OIRA, the Administrative Conference of the United States, or any other relevant agency, and the Administrator of OIRA may solicit input, from time to time, from representatives of business, nongovernmental organizations, and the public.

(e) The Working Group shall develop and issue guidelines on the applicability and implementation of sections 2 through 4 of this order.

(f) For purposes of this order, the Working Group shall operate by consensus.

Sec. 3. Responsibilities of Federal Agencies. To the extent permitted by law, and consistent with the principles and requirements of Executive Order 13563 and Executive Order 12866, each agency shall:

(a) if required to submit a Regulatory Plan pursuant to Executive Order 12866, include in that plan a summary of its international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations, with an explanation of how these activities advance the purposes of Executive Order 13563 and this order;

(b) ensure that significant regulations that the agency identifies as having significant international impacts are designated as such in the Unified Agenda of Federal Regulatory and Deregulatory Actions, on RegInfo.gov, and on Regulations.gov;

(c) in selecting which regulations to include in its retrospective review plan, as required by Executive Order 13563, consider:

(i) reforms to existing significant regulations that address unnecessary differences in regulatory requirements between the United States and its major trading partners, consistent with section 1 of this order, when stakeholders provide adequate information to the agency establishing that the differences are unnecessary; and

(ii) such reforms in other circumstances as the agency deems appropriate; and

(d) for significant regulations that the agency identifies as having significant international impacts, consider, to the extent feasible, appropriate, and consistent with law, any regulatory approaches by a foreign government that the United States has agreed to consider under a regulatory cooperation council work plan.

Sec. 4. Definitions. For purposes of this order:

(a) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(b) "International impact" is a direct effect that a proposed or final regulation is expected to have on international trade and investment, or that otherwise may be of significant interest to the trading partners of the United States.

(c) "International regulatory cooperation" refers to a bilateral, regional, or multilateral process, other than processes that are covered by section 6(a)(ii), (iii), and (v) of this order, in which national governments engage in various forms of collaboration and communication with respect to regulations, in particular a process that is reasonably anticipated to lead to the development of significant regulations.

(d) "Regulation" shall have the same meaning as "regulation" or "rule" in section 3(d) of Executive Order 12866.

(e) "Significant regulation" is a proposed or final regulation that constitutes a significant regulatory action.

(f) "Significant regulatory action" shall have the same meaning as in section 3(f) of Executive Order 12866.

Sec. 5. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof;

(ii) the coordination and development of international trade policy and negotiations pursuant to section 411 of the Trade Agreements Act of 1979 (19 U.S.C. 2451 [2541]) and section 141 of the Trade Act of 1974 (19 U.S.C. 2171);

(iii) international trade activities undertaken pursuant to section 3 of the Act of February 14, 1903 (15 U.S.C. 1512), subtitle C of the Export Enhancement Act of 1988, as amended (15 U.S.C. 4721 et seq.), and Reorganization Plan No. 3 of 1979 (19 U.S.C. 2171 note);

(iv) the authorization process for the negotiation and conclusion of international agreements pursuant to 1 U.S.C. 112b(c) [see now 1 U.S.C. 112b(g)] and its implementing regulations (22 C.F.R. 181.4) and implementing procedures (11 FAM 720);

(v) activities in connection with subchapter II of chapter 53 of title 31 of the United States Code, title 26 of the United States Code, or Public Law 111–203 and other laws relating to financial regulation; or (vi) [sic] the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13610. Identifying and Reducing Regulatory Burdens

Ex. Ord. No. 13610, May 10, 2012, 77 F.R. 28469, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize our regulatory system and to reduce unjustified regulatory burdens and costs, it is hereby ordered as follows:

Section 1. Policy. Regulations play an indispensable role in protecting public health, welfare, safety, and our environment, but they can also impose significant burdens and costs. During challenging economic times, we should be especially careful not to impose unjustified regulatory requirements. For this reason, it is particularly important for agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies.

Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), states that our regulatory system "must measure, and seek to improve, the actual results of regulatory requirements." To promote this goal, that Executive Order requires agencies not merely to conduct a single exercise, but to engage in "periodic review of existing significant regulations." Pursuant to section 6(b) of that Executive Order, agencies are required to develop retrospective review plans to review existing significant regulations in order to "determine whether any such regulations should be modified, streamlined, expanded, or repealed." The purpose of this requirement is to "make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives."

In response to Executive Order 13563, agencies have developed and made available for public comment retrospective review plans that identify over five hundred initiatives. A small fraction of those initiatives, already finalized or formally proposed to the public, are anticipated to eliminate billions of dollars in regulatory costs and tens of millions of hours in annual paperwork burdens. Significantly larger savings are anticipated as the plans are implemented and as action is taken on additional initiatives.

As a matter of longstanding practice and to satisfy statutory obligations, many agencies engaged in periodic review of existing regulations prior to the issuance of Executive Order 13563. But further steps should be taken, consistent with law, agency resources, and regulatory priorities, to promote public participation in retrospective review, to modernize our regulatory system, and to institutionalize regular assessment of significant regulations.

Sec. 2. Public Participation in Retrospective Review. Members of the public, including those directly and indirectly affected by regulations, as well as State, local, and tribal governments, have important information about the actual effects of existing regulations. For this reason, and consistent with Executive Order 13563, agencies shall invite, on a regular basis (to be determined by the agency head in consultation with the Office of Information and Regulatory Affairs (OIRA)), public suggestions about regulations in need of retrospective review and about appropriate modifications to such regulations. To promote an open exchange of information, retrospective analyses of regulations, including supporting data, shall be released to the public online wherever practicable.

Sec. 3. Setting Priorities. In implementing and improving their retrospective review plans, and in considering retrospective review suggestions from the public, agencies shall give priority, consistent with law, to those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment. To the extent practicable and permitted by law, agencies shall also give special consideration to initiatives that would reduce unjustified regulatory burdens or simplify or harmonize regulatory requirements imposed on small businesses. Consistent with Executive Order 13563 and Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), agencies shall give consideration to the cumulative effects of their own regulations, including cumulative burdens, and shall to the extent practicable and consistent with law give priority to reforms that would make significant progress in reducing those burdens while protecting public health, welfare, safety, and our environment.

Sec. 4. Accountability. Agencies shall regularly report on the status of their retrospective review efforts to OIRA. Agency reports should describe progress, anticipated accomplishments, and proposed timelines for relevant actions, with an emphasis on the priorities described in section 3 of this order. Agencies shall submit draft reports to OIRA on September 10, 2012, and on the second Monday of January and July for each year thereafter, unless directed otherwise through subsequent guidance from OIRA. Agencies shall make final reports available to the public within a reasonable period (not to exceed three weeks from the date of submission of draft reports to OIRA).

Sec. 5. General Provisions. (a) For purposes of this order, "agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13707. Using Behavioral Science Insights To Better Serve the American People

Ex. Ord. No. 13707, Sept. 15, 2015, 80 F.R. 56365, provided:

A growing body of evidence demonstrates that behavioral science insights—research findings from fields such as behavioral economics and psychology about how people make decisions and act on them—can be used to design government policies to better serve the American people.

Where Federal policies have been designed to reflect behavioral science insights, they have substantially improved outcomes for the individuals, families, communities, and businesses those policies serve. For example, automatic enrollment and automatic escalation in retirement savings plans have made it easier to save for the future, and have helped Americans accumulate billions of dollars in additional retirement savings. Similarly, streamlining the application process for Federal financial aid has made college more financially accessible for millions of students.

To more fully realize the benefits of behavioral insights and deliver better results at a lower cost for the American people, the Federal Government should design its policies and programs to reflect our best understanding of how people engage with, participate in, use, and respond to those policies and programs. By improving the effectiveness and efficiency of Government, behavioral science insights can support a range of national priorities, including helping workers to find better jobs; enabling Americans to lead longer, healthier lives; improving access to educational opportunities and support for success in school; and accelerating the transition to a low-carbon economy.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, I hereby direct the following:

Section 1. Behavioral Science Insights Policy Directive.

(a) Executive departments and agencies (agencies) are encouraged to:

(i) identify policies, programs, and operations where applying behavioral science insights may yield substantial improvements in public welfare, program outcomes, and program cost effectiveness;

(ii) develop strategies for applying behavioral science insights to programs and, where possible, rigorously test and evaluate the impact of these insights;

(iii) recruit behavioral science experts to join the Federal Government as necessary to achieve the goals of this directive; and

(iv) strengthen agency relationships with the research community to better use empirical findings from the behavioral sciences.

(b) In implementing the policy directives in section (a), agencies shall:

(i) identify opportunities to help qualifying individuals, families, communities, and businesses access public programs and benefits by, as appropriate, streamlining processes that may otherwise limit or delay participation—for example, removing administrative hurdles, shortening wait times, and simplifying forms;

(ii) improve how information is presented to consumers, borrowers, program beneficiaries, and other individuals, whether as directly conveyed by the agency, or in setting standards for the presentation of information, by considering how the content, format, timing, and medium by which information is conveyed affects comprehension and action by individuals, as appropriate;

(iii) identify programs that offer choices and carefully consider how the presentation and structure of those choices, including the order, number, and arrangement of options, can most effectively promote public welfare, as appropriate, giving particular consideration to the selection and setting of default options; and

(iv) review elements of their policies and programs that are designed to encourage or make it easier for Americans to take specific actions, such as saving for retirement or completing education programs. In doing so, agencies shall consider how the timing, frequency, presentation, and labeling of benefits, taxes, subsidies, and other incentives can more effectively and efficiently promote those actions, as appropriate. Particular attention should be paid to opportunities to use nonfinancial incentives.

(c) For policies with a regulatory component, agencies are encouraged to combine this behavioral science insights policy directive with their ongoing review of existing significant regulations to identify and reduce regulatory burdens, as appropriate and consistent with Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and Executive Order 13610 of May 10, 2012 (Identifying and Reducing Regulatory Burdens).

Sec. 2. Implementation of the Behavioral Science Insights Policy Directive. (a) The Social and Behavioral Sciences Team (SBST), under the National Science and Technology Council (NSTC) and chaired by the Assistant to the President for Science and Technology, shall provide agencies with advice and policy guidance to help them execute the policy objectives outlined in section 1 of this order, as appropriate.

(b) The NSTC shall release a yearly report summarizing agency implementation of section 1 of this order each year until 2019. Member agencies of the SBST are expected to contribute to this report.

(c) To help execute the policy directive set forth in section 1 of this order, the Chair of the SBST shall, within 45 days of the date of this order and thereafter as necessary, issue guidance to assist agencies in implementing this order.

Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) Independent agencies are strongly encouraged to comply with the requirements of this order.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13725. Steps To Increase Competition and Better Inform Consumers and Workers To Support Continued Growth of the American Economy

Ex. Ord. No. 13725, Apr. 15, 2016, 81 F.R. 23417, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to protect American consumers and workers and encourage competition in the U.S. economy, it is hereby ordered as follows:

Section 1. Policy. Maintaining, encouraging, and supporting a fair, efficient, and competitive marketplace is a cornerstone of the American economy. Consumers and workers need both competitive markets and information to make informed choices.

Certain business practices such as unlawful collusion, illegal bid rigging, price fixing, and wage setting, as well as anticompetitive exclusionary conduct and mergers stifle competition and erode the foundation of America's economic vitality. The immediate results of such conduct—higher prices and poorer service for customers, less innovation, fewer new businesses being launched, and reduced opportunities for workers—can impact Americans in every walk of life.

Competitive markets also help advance national priorities, such as the delivery of affordable health care, energy independence, and improved access to fast and affordable broadband. Competitive markets also promote economic growth, which creates opportunity for American workers and encourages entrepreneurs to start innovative companies that create jobs.

The Department of Justice (DOJ) and the Federal Trade Commission (FTC) have a proven record of detecting and stopping anticompetitive conduct and challenging mergers and acquisitions that threaten to consolidate markets and reduce competition.

Promoting competitive markets and ensuring that consumers and workers have access to the information needed to make informed choices must be a shared priority across the Federal Government. Executive departments and agencies can contribute to these goals through, among other things, pro-competitive rulemaking and regulations, and by eliminating regulations that create barriers to or limit competition. Such Government-wide action is essential to ensuring that consumers, workers, startups, small businesses, and farms reap the full benefits of competitive markets.

Sec. 2. Agency Responsibilities. (a) Executive departments and agencies with authorities that could be used to enhance competition (agencies) shall, where consistent with other laws, use those authorities to promote competition, arm consumers and workers with the information they need to make informed choices, and eliminate regulations that restrict competition without corresponding benefits to the American public.

(b) Agencies shall identify specific actions that they can take in their areas of responsibility to build upon efforts to detect abuses such as price fixing, anticompetitive behavior in labor and other input markets, exclusionary conduct, and blocking access to critical resources that are needed for competitive entry. Behaviors that appear to violate our antitrust laws should be referred to antitrust enforcers at DOJ and the FTC. Such a referral shall not preclude further action by the referring agency against that behavior under that agency's relevant statutory authority.

(c) Agencies shall also identify specific actions that they can take in their areas of responsibility to address undue burdens on competition. As permitted by law, agencies shall consult with other interested parties to identify ways that the agency can promote competition through pro-competitive rulemaking and regulations, by providing consumers and workers with information they need to make informed choices, and by eliminating regulations that restrict competition without corresponding benefits to the American public.

(d) Not later than 30 days from the date of this order, agencies shall submit to the Director of the National Economic Council an initial list of (1) actions each agency can potentially take to promote more competitive markets; (2) any specific practices, such as blocking access to critical resources, that potentially restrict meaningful consumer or worker choice or unduly stifle new market entrants, along with any actions the agency can potentially take to address those practices; and (3) any relevant authorities and tools potentially available to enhance competition or make information more widely available for consumers and workers.

(e) Not later than 60 days from the date of this order, agencies shall report to the President, through the Director of the National Economic Council, recommendations on agency-specific actions that eliminate barriers to competition, promote greater competition, and improve consumer access to information needed to make informed purchasing decisions. Such recommendations shall include a list of priority actions, including rulemakings, as well as timelines for completing those actions.

(f) Subsequently, agencies shall report semi-annually to the President, through the Director of the National Economic Council, on additional actions that they plan to undertake to promote greater competition.

(g) Sections 2(d), 2(e), and 2(f) of this order do not require reporting of information related to law enforcement policy and activities.

Sec. 3. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Independent agencies are strongly encouraged to comply with the requirements of this order.

(c) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13748. Establishing a Community Solutions Council

Ex. Ord. No. 13748, Nov. 16, 2016, 81 F.R. 83619, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Place is a strong determinant of opportunity and well-being. Research shows that the neighborhood in which a child grows up impacts his or her odds of going to college, enjoying good health, and obtaining a lifetime of economic opportunities. Even after 73 consecutive months of total job growth since 2009, communities of persistent poverty remain and for far too many, the odds are stacked against opportunity and achieving the American dream. In addition, between now and 2050, growing our economy, expected population growth, climate change, and demographic shifts will require major new investments in physical, social, and technological infrastructure.

Specific challenges in communities—including crime, access to care, opportunities to pursue quality education, lack of housing options, unemployment, and deteriorating infrastructure—can be met by leveraging Federal assistance and resources. While the Federal Government provides rural, suburban, urban, and tribal communities with significant investments in aid annually, coordinating these investments, as appropriate, across agencies based on locally led visions can more effectively reach communities of greatest need to maximize impact. In recent years, the Federal Government has deepened its engagement with communities, recognizing the critical role of these partnerships in enabling Americans to live healthier and more prosperous lives. Since 2015, the Community Solutions Task Force, comprising executive departments, offices, and agencies (agencies) across the Federal Government, has served as the primary interagency coordinator of agency work to engage with communities to deliver improved outcomes. This order builds on recent work to facilitate inter-agency and community-level collaboration to meet the unique needs of communities in a way that reflects these communities' local assets, economies, geography, size, history, strengths, talent networks, and visions for the future.

Sec. 2. Principles. Our effort to modernize the Federal Government's work with communities is rooted in the following principles:

(a) A community-driven, locally led vision and long-term plan for clear outcomes should guide individual projects.

(b) The Federal Government should coordinate its efforts at the Federal, regional, State, local, tribal, and community level, and with cross-sector partners, to offer a more seamless process for communities to access needed support and ensure equitable investments.

(c) The Federal Government should help communities identify, develop, and share local solutions, rely on data to determine what does and does not work, and harness technology and modern collaboration and engagement methods to help share these solutions and help communities meet their local goals.

Sec. 3. Community Solutions Council.

(a) Establishment. There is hereby established a Council for Community Solutions (Council), led by two Co-Chairs. One Co-Chair will be an Assistant to the President or the Director of the Office of Management and Budget, as designated by the President. The second Co-Chair will be rotated every 4 years and designated by the President from among the heads of the Departments of Justice, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, and Education, and the Environmental Protection Agency (Agency Co-Chair).

(b) Membership. The Council shall consist of the following members:

(i) the Secretary of State;

(ii) the Secretary of the Treasury;

(iii) the Secretary of Defense;

(iv) the Attorney General;

(v) the Secretary of the Interior;

(vi) the Secretary of Agriculture;

(vii) the Secretary of Commerce;

(viii) the Secretary of Labor;

(ix) the Secretary of Health and Human Services;

(x) the Secretary of Housing and Urban Development;

(xi) the Secretary of Transportation;

(xii) the Secretary of Energy;

(xiii) the Secretary of Education;

(xiv) the Secretary of Veterans Affairs;

(xv) the Secretary of Homeland Security;

(xvi) the Administrator of the Environmental Protection Agency;

(xvii) the Administrator of General Services;

(xviii) the Administrator of the Small Business Administration;

(xix) the Chief Executive Officer of the Corporation for National and Community Service;

(xx) the Chairperson of the National Endowment for the Arts;

(xxi) the Director of the Institute for Museum and Library Services;

(xxii) the Federal Co-Chair of the Delta Regional Authority;

(xxiii) the Federal Co-Chair of the Appalachian Regional Commission;

(xxiv) the Director of the Office of Personnel Management;

(xxv) the Director of the Office of Management and Budget;

(xxvi) the Chair of the Council of Economic Advisers;

(xxvii) the Assistant to the President for Intergovernmental Affairs and Public Engagement;

(xxviii) the Assistant to the President and Cabinet Secretary;

(xxix) the Assistant to the President for Economic Policy and Director of the National Economic Council;

(xxx) the Chair of the Council on Environmental Quality;

(xxxi) the Director of the Office of Science and Technology Policy;

(xxxii) the Assistant to the President and Chief Technology Officer;

(xxxiii) the Administrator of the United States Digital Service; and

(xxxiv) other officials, as the Co-Chairs may designate or invite to participate.

(c) Administration.

(i) The President will designate one of the Co-Chairs to appoint or designate, as appropriate, an Executive Director, who shall coordinate the Council's activities. The department, agency, or component within the Executive Office of the President in which the Executive Director is appointed or designated, as appropriate, (funding entity) shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations as may be necessary for the performance of its functions.

(ii) To the extent permitted by law, including the Economy Act, and within existing appropriations, participating agencies may detail staff to the funding entity to support the Council's coordination and implementation efforts.

(iii) The Co-Chairs shall convene regular meetings of the Council, determine its agenda, and direct its work. At the direction of the Co-Chairs, the Council may establish subgroups consisting exclusively of Council members or their designees, as appropriate.

(iv) A member of the Council may designate a senior-level official who is part of the member's department, agency, or office to perform the Council functions of the member.

Sec. 4. Mission and Priorities of the Council. (a) The Council shall foster collaboration across agencies, policy councils, and offices to coordinate actions, identify working solutions to share broadly, and develop and implement policy recommendations that put the community-driven, locally led vision at the center of policymaking. The Council shall:

(i) Work across agencies to coordinate investments in initiatives and practices that align the work of the Federal Government to have the greatest impact on the lives of individuals and communities.

(ii) Use evidence-based practices in policymaking, including identifying existing solutions, scaling up practices that are working, and designing solutions with regular input of the individuals and communities to be served.

(iii) Invest in recruiting, training, and retaining talent to further the effective delivery of services to individuals and communities and empower them with best-practice community engagement options, open government transparency methods, equitable policy approaches, technical assistance and capacity building tools, and data-driven practice.

(b) Consistent with the principles set forth in this order and in accordance with applicable law, including the Federal Advisory Committee Act, the Council should conduct outreach to representatives of nonprofit organizations, civil rights organizations, businesses, labor and professional organizations, start-up and entrepreneurial communities, State, local, and tribal government agencies, school districts, youth, elected officials, seniors, faith and other community-based organizations, philanthropies, technologists, other institutions of local importance, and other interested or affected persons with relevant expertise in the expansion and improvement of efforts to build local capacity, ensure equity, and address economic, social, environmental, and other issues in communities or regions.

Sec. 5. Executive Orders 13560 and 13602, and Building Upon Other Efforts. This order supersedes Executive Order 13560 of December 14, 2010 (White House Council for Community Solutions), and Executive Order 13602 of March 15, 2012 (Establishing a White House Council on Strong Cities, Strong Communities), which are hereby revoked.

This Council builds on existing efforts involving Federal working groups, task forces, memoranda of agreement, and initiatives, including the Community Solutions Task Force, the Federal Working Groups dedicated to supporting the needs and priorities of local leadership in Detroit, Baltimore, and Pine Ridge; the Interagency Working Group on Environmental Justice; the Partnership for Sustainable Communities; Local Foods, Local Places; Performance Partnership Pilots for Disconnected Youth; Empowerment Zones; StrikeForce; Partnerships for Opportunity and Workforce and Economic Revitalization; the Neighborhood Revitalization Initiative; Climate Action Champions; Better Communities Alliance; Investing in Manufacturing Communities Partnership; Promise Zones; and the 2016 Memorandum of Agreement on Interagency Technical Assistance. The Council shall also coordinate with existing Chief Officer Councils across the government with oversight responsibility for human capital, performance improvement, and financial assistance.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Executive Order No. 13771

Ex. Ord. No. 13771, Jan. 30, 2017, 82 F.R. 9339, which required an executive department or agency that publicly proposes for notice and comment or otherwise promulgates a new regulation to identify at least two existing regulations to be repealed for fiscal year 2017, and for subsequent fiscal years required annual regulatory cost submissions to the Office of Management and Budget, was revoked by Ex. Ord. No. 13992, §2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13777

Ex. Ord. No. 13777, Feb. 24, 2017, 82 F.R. 12285, which established Regulatory Reform Task Forces to identify certain regulations to repeal, replace, or modify, was revoked by Ex. Ord. No. 13992, §2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13828

Ex. Ord. No. 13828, Apr. 10, 2018, 83 F.R. 15941, which required certain agencies to review their regulations and guidance documents relating to public assistance programs, was revoked by Ex. Ord. No. 14018, §1, Feb. 24, 2021, 86 F.R. 11855.

Executive Order No. 13891

Ex. Ord. No. 13891, Oct. 9, 2019, 84 F.R. 55235, which related to agency non-binding guidance documents, was revoked by Ex. Ord. No. 13992, §2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13893

Ex. Ord. No. 13893, Oct. 10, 2019, 84 F.R. 55487, which related to reducing mandatory spending incurred by discretionary administrative actions, was revoked by Ex. Ord. No. 13992, §2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13924

Ex. Ord. No. 13924, May 19, 2020, 85 F.R. 31353, which related to regulatory relief to support recovery from the economic consequences of COVID–19, was revoked by Ex. Ord. No. 14018, §1, Feb. 24, 2021, 86 F.R. 11855.

Executive Order No. 13927

Ex. Ord. No. 13927, June 4, 2020, 85 F.R. 35165, which related to accelerating the nation's economic recovery from the COVID–19 emergency by expediting infrastructure investments and other activities, was revoked by Ex. Ord. No. 13990, §7(a), Jan. 20, 2021, 86 F.R. 7041, set out in a note under section 4321 of Title 42, The Public Health and Welfare.

Ex. Ord. No. 13966. Increasing Economic and Geographic Mobility

Ex. Ord. No. 13966, Dec. 14, 2020, 85 F.R. 81777, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 305 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy and Principles. As expressed in Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda) [formerly set out above], it is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people. Overly burdensome occupational licensing requirements can impede job creation and slow economic growth, which undermines our Nation's prosperity and the economic well-being of the American people. Such regulations can prevent American workers and job seekers from earning a living, maximizing their personal and economic potential, and achieving the American Dream. The purpose of this order is to reduce the burden of occupational regulations in order to promote the free practice of commerce, lower consumer costs, and increase economic and geographic mobility, including for military spouses.

My Administration is committed to continuing this important work by partnering with State, local, territorial, and tribal leaders throughout the country to eliminate harmful occupational regulations, which are frequently designed to protect politically connected interest groups. To this end, in October 2019, my Administration announced the establishment of the Governors' Initiative on Regulatory Innovation, which works with State, local, and tribal leaders to advance occupational licensing reforms, better align State and Federal regulations, and eliminate unnecessary regulations that drive up consumer costs.

Occupational regulations can protect practitioners from competition rather than protect the public from malpractice. Unfortunately, the number of occupational regulations has substantially increased over the last few decades. Since the 1950s, the percentage of jobs requiring a government-mandated occupational license has increased from less than 5 percent to between 25 and 30 percent. By requiring workers to acquire new licenses when they move to a new jurisdiction, occupational regulations reduce worker mobility, disproportionately harm low-income Americans, and are particularly burdensome to military spouses who must relocate to support the service members committed to keeping our country safe. Additionally, blanket prohibitions that prevent individuals with criminal records from obtaining occupational licenses may exacerbate disparities in employment opportunity and increase the likelihood of recidivism, particularly as regulatory barriers to enter lower- and middle-income occupations are associated with higher recidivism rates. Licensing requirements unnecessary to protect consumers from significant and demonstrable harm also frequently impose expensive educational requirements on potential job seekers, even for occupations with limited future earnings potential. According to recent research, licensing requirements have cost our country an estimated 2.85 million jobs and over $200 billion annually in increased consumer costs.

Therefore, it is the policy of the United States Government to support occupational regulation reform throughout the Nation, building on occupational licensing reforms enacted most recently in Arizona, Florida, Iowa, Missouri, and South Dakota, guided by six principles:

Principle 1. All recognized occupational licensure boards should be subject to active supervision of [sic] a designated governmental agency or office.

Principle 2. All occupational licensure boards recognized by a State, territorial, or tribal government that oversee personal qualifications related to the practice of an occupation should adopt and maintain the criteria and methods of occupational regulation that are least restrictive to competition sufficient to protect consumers from significant and demonstrable harm to their health and safety. The policies and procedures of such boards should be designed to protect consumer and worker safety and to encourage competition.

Principle 3. State, territorial, and tribal governments should review existing occupational regulations, including associated scope-of-practice provisions, to ensure that their requirements are the least restrictive to competition sufficient to protect consumers from significant and demonstrable harm. State, territorial, and tribal governments should also regularly review and analyze all occupational regulations, including associated personal qualifications required to obtain an occupational license, to ensure the adoption of the least restrictive requirements necessary to protect consumers from significant and demonstrable harm.

Principle 4. Individuals with criminal records should be encouraged to submit to the appropriate licensure board a preliminary application for an occupational license for a determination as to whether the criminal record would preclude their attainment of the appropriate occupational license.

Principle 5. A State, territorial, or tribal government should issue an occupational license to a person in the discipline applied for and at the same level of practice if the individual satisfies four requirements:

(a) the individual holds an occupational license for that discipline from another jurisdiction in the United States and is in good standing;

(b) the individual verifies having met, as applicable, the minimum examination, education, work, or clinical-supervision requirements imposed by the State, territory, or tribe;

(c) the individual:

(i) has not had the license previously revoked or suspended;

(ii) has not been disciplined related to the license by any other regulating entity; and

(iii) is not subject to any pending complaint, allegation, or investigation related to the license; and

(d) the individual pays all applicable fees required to obtain the new license.

Principle 6. Accommodations should be made for any applicant for an occupational license who is the spouse of an active duty member of the uniformed services and who is relocating with the member due to the member's official permanent change of station orders.

Sec. 2. Review of and Report on Authorities, Regulations, Guidance, and Policies. The head of each executive department and agency (agency) shall, within 90 days of the date of this order [Dec. 14, 2020] and every 2 years thereafter:

(a) review the agency's authorities, regulations, guidance, and polices to identify changes necessary to ensure alignment with the principles set forth in section 1 of this order; and

(b) submit a report to the Director of the Office of Management and Budget (Director of OMB), the Assistant to the President for Domestic Policy, and the Assistant to the President and Director of Intergovernmental Affairs (Director of IGA) identifying all necessary changes identified pursuant to subsection (a) of this section.

Sec. 3. Identification and Report of Opportunities to Encourage Occupational Regulation Reform. (a) Within 90 days of the date of this order, and every 2 years thereafter, the head of each agency shall submit a report to the Director of OMB, the Assistant to the President for Domestic Policy, and the Director of IGA identifying a list of recommended actions available to any and all agencies to recognize and reward State, territorial, and tribal governments that have in place policies and procedures regarding occupational regulation that are consistent with the principles set forth in section 1 of this order; and

(b) Within 120 days of the date of this order, and every 2 years thereafter, the Assistant to the President for Domestic Policy, in consultation with the Secretary of Commerce, the Secretary of Labor, the Director of OMB, the Administrator of the Small Business Administration, the Director of IGA, and the heads of other agencies and offices as appropriate, shall submit a report to the President identifying:

(i) recommended changes to Federal law, regulations, guidance, and other policies to ensure alignment with the principles set forth in section 1 of this order;

(ii) recommended actions to be taken by agencies to recognize and reward State, territorial, and tribal governments that have in place policies and procedures regarding occupational regulation that are consistent with the principles set forth in section 1 of this order; and

(iii) a list of criteria that may be used to evaluate whether a State, territorial, or tribal government has in place policies and procedures that are consistent with the principles set forth in section 1 of this order.

Sec. 4. Implementation of Recommendations to Recognize and Reward State, Territorial, and Tribal Regulatory Reform. (a) Within 180 days of the date of this order, and every 2 years thereafter, the Administrator of the Small Business Administration, in consultation with the Secretary of Commerce, the Secretary of Labor, the Secretary of Health and Human Services, and the heads of other agencies as appropriate, shall seek and report on information from State, territorial, and tribal governments regarding whether they have in place policies and procedures consistent with the principles set forth in section 1 of this order and shall make the report publicly available, including on agencies' websites. The information sought shall be consistent with the criteria identified as required by section 3(b)(iii) of this order.

(b) Consistent with applicable law, and to the extent that the President approves any of the actions recommended pursuant to section 3(b)(ii) of this order, agencies shall implement such actions for the purpose of recognizing and rewarding a State, territorial, or tribal government that has in place policies and procedures regarding occupational regulation that are consistent with the principles set forth in section 1 of this order.

Sec. 5. Definitions. For the purposes of this order:

(a) "Active supervision" means:

(i) reviewing proposed occupational licensure board rules, policies, or other regulatory actions that may restrict market competition prior to issuance;

(ii) ensuring that any entity seeking to impose occupational licensing criteria adopts the criteria that are least restrictive to competition sufficient to protect consumers from significant and demonstrable harm to their health or safety; and

(iii) analyzing, where information is readily available, the effects of proposed rules, policies, and other regulatory actions on employment opportunities, consumer costs, market competition, and administrative costs.

(b) "Agency" has the meaning given that term in section 3502(1) of title 44, United States Code, except that the term does not include the agencies described in section 3502(5) of title 44, United States Code, other than the Bureau of Consumer Financial Protection.

(c) "Occupational license" means a license, registration, or certification without which an individual lacks the legal permission of a State, local, territorial, or tribal government to perform certain defined services for compensation.

(d) "Occupational regulation" includes:

(i) licensing or government certification, by which a government body requires personal qualifications in order to be permitted to practice an occupation; and

(ii) registration, bonding, or inspections, by which a government body does not require personal qualifications in order to be permitted to practice an occupation.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Executive Order No. 13980

Ex. Ord. No. 13980, Jan. 18, 2021, 86 F.R. 6817, which related to regulations that may subject a violator to criminal penalties, was revoked by Ex. Ord. No. 14029, §1, May 14, 2021, 86 F.R. 27025.

Ex. Ord. No. 13985. Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

Ex. Ord. No. 13985, Jan. 20, 2021, 86 F.R. 7009, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1. Policy. Equal opportunity is the bedrock of American democracy, and our diversity is one of our country's greatest strengths. But for too many, the American Dream remains out of reach. Entrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities. Our country faces converging economic, health, and climate crises that have exposed and exacerbated inequities, while a historic movement for justice has highlighted the unbearable human costs of systemic racism. Our Nation deserves an ambitious whole-of-government equity agenda that matches the scale of the opportunities and challenges that we face.

It is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government. Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.

By advancing equity across the Federal Government, we can create opportunities for the improvement of communities that have been historically underserved, which benefits everyone. For example, an analysis shows that closing racial gaps in wages, housing credit, lending opportunities, and access to higher education would amount to an additional $5 trillion in gross domestic product in the American economy over the next 5 years. The Federal Government's goal in advancing equity is to provide everyone with the opportunity to reach their full potential. Consistent with these aims, each agency must assess whether, and to what extent, its programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups. Such assessments will better equip agencies to develop policies and programs that deliver resources and benefits equitably to all.

Sec. 2. Definitions. For purposes of this order: (a) The term "equity" means the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.

(b) The term "underserved communities" refers to populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life, as exemplified by the list in the preceding definition of "equity."

Sec. 3. Role of the Domestic Policy Council. The role of the White House Domestic Policy Council (DPC) is to coordinate the formulation and implementation of my Administration's domestic policy objectives. Consistent with this role, the DPC will coordinate efforts to embed equity principles, policies, and approaches across the Federal Government. This will include efforts to remove systemic barriers to and provide equal access to opportunities and benefits, identify communities the Federal Government has underserved, and develop policies designed to advance equity for those communities. The DPC-led interagency process will ensure that these efforts are made in coordination with the directors of the National Security Council and the National Economic Council.

Sec. 4. Identifying Methods to Assess Equity. (a) The Director of the Office of Management and Budget (OMB) shall, in partnership with the heads of agencies, study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals. The study should aim to identify the best methods, consistent with applicable law, to assist agencies in assessing equity with respect to race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability.

(b) As part of this study, the Director of OMB shall consider whether to recommend that agencies employ pilot programs to test model assessment tools and assist agencies in doing so.

(c) Within 6 months of the date of this order [Jan. 20, 2021], the Director of OMB shall deliver a report to the President describing the best practices identified by the study and, as appropriate, recommending approaches to expand use of those methods across the Federal Government.

Sec. 5. Conducting an Equity Assessment in Federal Agencies. The head of each agency, or designee, shall, in consultation with the Director of OMB, select certain of the agency's programs and policies for a review that will assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs. The head of each agency, or designee, shall conduct such review and within 200 days of the date of this order provide a report to the Assistant to the President for Domestic Policy (APDP) reflecting findings on the following:

(a) Potential barriers that underserved communities and individuals may face to enrollment in and access to benefits and services in Federal programs;

(b) Potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities;

(c) Whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs; and

(d) The operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.

Sec. 6. Allocating Federal Resources to Advance Fairness and Opportunity. The Federal Government should, consistent with applicable law, allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities, as well as individuals from those communities. To this end:

(a) The Director of OMB shall identify opportunities to promote equity in the budget that the President submits to the Congress.

(b) The Director of OMB shall, in coordination with the heads of agencies, study strategies, consistent with applicable law, for allocating Federal resources in a manner that increases investment in underserved communities, as well as individuals from those communities. The Director of OMB shall report the findings of this study to the President.

Sec. 7. Promoting Equitable Delivery of Government Benefits and Equitable Opportunities. Government programs are designed to serve all eligible individuals. And Government contracting and procurement opportunities should be available on an equal basis to all eligible providers of goods and services. To meet these objectives and to enhance compliance with existing civil rights laws:

(a) Within 1 year of the date of this order, the head of each agency shall consult with the APDP and the Director of OMB to produce a plan for addressing:

(i) any barriers to full and equal participation in programs identified pursuant to section 5(a) of this order; and

(ii) any barriers to full and equal participation in agency procurement and contracting opportunities identified pursuant to section 5(b) of this order.

(b) The Administrator of the U.S. Digital Service, the United States Chief Technology Officer, the Chief Information Officer of the United States, and the heads of other agencies, or their designees, shall take necessary actions, consistent with applicable law, to support agencies in developing such plans.

Sec. 8. Engagement with Members of Underserved Communities. In carrying out this order, agencies shall consult with members of communities that have been historically underrepresented in the Federal Government and underserved by, or subject to discrimination in, Federal policies and programs. The head of each agency shall evaluate opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.

Sec. 9. Establishing an Equitable Data Working Group. Many Federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables. This lack of data has cascading effects and impedes efforts to measure and advance equity. A first step to promoting equity in Government action is to gather the data necessary to inform that effort.

(a) Establishment. There is hereby established an Interagency Working Group on Equitable Data (Data Working Group).

(b) Membership.

(i) The Chief Statistician of the United States and the United States Chief Technology Officer shall serve as Co-Chairs of the Data Working Group and coordinate its work. The Data Working Group shall include representatives of agencies as determined by the Co-Chairs to be necessary to complete the work of the Data Working Group, but at a minimum shall include the following officials, or their designees:

(A) the Director of OMB;

(B) the Secretary of Commerce, through the Director of the U.S. Census Bureau;

(C) the Chair of the Council of Economic Advisers;

(D) the Chief Information Officer of the United States;

(E) the Secretary of the Treasury, through the Assistant Secretary of the Treasury for Tax Policy;

(F) the Chief Data Scientist of the United States; and

(G) the Administrator of the U.S. Digital Service.

(ii) The DPC shall work closely with the Co-Chairs of the Data Working Group and assist in the Data Working Group's interagency coordination functions.

(iii) The Data Working Group shall consult with agencies to facilitate the sharing of information and best practices, consistent with applicable law.

(c) Functions. The Data Working Group shall:

(i) through consultation with agencies, study and provide recommendations to the APDP identifying inadequacies in existing Federal data collection programs, policies, and infrastructure across agencies, and strategies for addressing any deficiencies identified; and

(ii) support agencies in implementing actions, consistent with applicable law and privacy interests, that expand and refine the data available to the Federal Government to measure equity and capture the diversity of the American people.

(d) OMB shall provide administrative support for the Data Working Group, consistent with applicable law.

Sec. 10. Revocation. (a) Executive Order 13950 of September 22, 2020 (Combating Race and Sex Stereotyping) [former 5 U.S.C. 4103 note], is hereby revoked.

(b) The heads of agencies covered by Executive Order 13950 shall review and identify proposed and existing agency actions related to or arising from Executive Order 13950. The head of each agency shall, within 60 days of the date of this order, consider suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to Executive Order 13950, as appropriate and consistent with applicable law.

(c) Executive Order 13958 of November 2, 2020 (Establishing the President's Advisory 1776 Commission) [former 20 U.S.C. 3411 note], is hereby revoked.

Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) Independent agencies are strongly encouraged to comply with the provisions of this order.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Ex. Ord. No. 14017. America's Supply Chains

Ex. Ord. No. 14017, Feb. 24, 2021, 86 F.R. 11849, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. The United States needs resilient, diverse, and secure supply chains to ensure our economic prosperity and national security. Pandemics and other biological threats, cyber-attacks, climate shocks and extreme weather events, terrorist attacks, geopolitical and economic competition, and other conditions can reduce critical manufacturing capacity and the availability and integrity of critical goods, products, and services. Resilient American supply chains will revitalize and rebuild domestic manufacturing capacity, maintain America's competitive edge in research and development, and create well-paying jobs. They will also support small businesses, promote prosperity, advance the fight against climate change, and encourage economic growth in communities of color and economically distressed areas.

More resilient supply chains are secure and diverse—facilitating greater domestic production, a range of supply, built-in redundancies, adequate stockpiles, safe and secure digital networks, and a world-class American manufacturing base and workforce. Moreover, close cooperation on resilient supply chains with allies and partners who share our values will foster collective economic and national security and strengthen the capacity to respond to international disasters and emergencies.

Therefore, it is the policy of my Administration to strengthen the resilience of America's supply chains.

Sec. 2. Coordination. The Assistant to the President for National Security Affairs (APNSA) and the Assistant to the President for Economic Policy (APEP) shall coordinate the executive branch actions necessary to implement this order through the interagency process identified in National Security Memorandum 2 of February 4, 2021 (Renewing the National Security Council System). In implementing this order, the heads of agencies should, as appropriate, consult outside stakeholders—such as those in industry, academia, non-governmental organizations, communities, labor unions, and State, local, and Tribal governments—in order to fulfill the policy identified in section 1 of this order.

Sec. 3. 100-Day Supply Chain Review. (a) To advance the policy described in section 1 of this order, the APNSA and the APEP, in coordination with the heads of appropriate agencies, as defined in section 6(a) of this order, shall complete a review of supply chain risks, as outlined in subsection (b) of this section, within 100 days of the date of this order [Feb. 24, 2021].

(b) Within 100 days of the date of this order, the specified heads of agencies shall submit the following reports to the President, through the APNSA and the APEP:

(i) The Secretary of Commerce, in consultation with the heads of appropriate agencies, shall submit a report identifying risks in the semiconductor manufacturing and advanced packaging supply chains and policy recommendations to address these risks. The report shall include the items described in section 4(c) of this order.

(ii) The Secretary of Energy, in consultation with the heads of appropriate agencies, shall submit a report identifying risks in the supply chain for high-capacity batteries, including electric-vehicle batteries, and policy recommendations to address these risks. The report shall include the items described in section 4(c) of this order.

(iii) The Secretary of Defense (as the National Defense Stockpile Manager), in consultation with the heads of appropriate agencies, shall submit a report identifying risks in the supply chain for critical minerals and other identified strategic materials, including rare earth elements (as determined by the Secretary of Defense), and policy recommendations to address these risks. The report shall also describe and update work done pursuant to Executive Order 13953 of September 30, 2020 (Addressing the Threat to the Domestic Supply Chain From Reliance on Critical Minerals From Foreign Adversaries and Supporting the Domestic Mining and Processing Industries) [30 U.S.C. 1601 note]. The report shall include the items described in section 4(c) of this order.

(iv) The Secretary of Health and Human Services, in consultation with the heads of appropriate agencies, shall submit a report identifying risks in the supply chain for pharmaceuticals and active pharmaceutical ingredients and policy recommendations to address these risks. The report shall complement the ongoing work to secure the supply chains of critical items needed to combat the COVID–19 pandemic, including personal protective equipment, conducted pursuant to Executive Order 14001 of January 21, 2021 (A Sustainable Public Health Supply Chain) [42 U.S.C. 247d–6b note]. The report shall include the items described in section 4(c) of this order.

(c) The APNSA and the APEP shall review the reports required under subsection (b) of this section and shall submit the reports to the President in an unclassified form, but may include a classified annex.

(d) The APNSA and the APEP shall include a cover memorandum to the set of reports submitted pursuant to this section, summarizing the reports' findings and making any additional overall recommendations for addressing the risks to America's supply chains, including the supply chains for the products identified in subsection (b) of this section.

Sec. 4. Sectoral Supply Chain Assessments. (a) Within 1 year of the date of this order, the specified heads of agencies shall submit the following reports to the President, through the APNSA and the APEP:

(i) The Secretary of Defense, in consultation with the heads of appropriate agencies, shall submit a report on supply chains for the defense industrial base that updates the report provided pursuant to Executive Order 13806 of July 21, 2017 (Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States) [82 F.R. 34597], and builds on the Annual Industrial Capabilities Report mandated by the Congress pursuant to [former] section 2504 of title 10, United States Code [now 10 U.S.C. 4814]. The report shall identify areas where civilian supply chains are dependent upon competitor nations, as determined by the Secretary of Defense.

(ii) The Secretary of Health and Human Services, in consultation with the heads of appropriate agencies, shall submit a report on supply chains for the public health and biological preparedness industrial base (as determined by the Secretary of Health and Human Services). The report shall complement the work conducted pursuant to section 4 of Executive Order 14001.

(iii) The Secretary of Commerce and the Secretary of Homeland Security, in consultation with the heads of appropriate agencies, shall submit a report on supply chains for critical sectors and subsectors of the information and communications technology (ICT) industrial base (as determined by the Secretary of Commerce and the Secretary of Homeland Security), including the industrial base for the development of ICT software, data, and associated services.

(iv) The Secretary of Energy, in consultation with the heads of appropriate agencies, shall submit a report on supply chains for the energy sector industrial base (as determined by the Secretary of Energy).

(v) The Secretary of Transportation, in consultation with the heads of appropriate agencies, shall submit a report on supply chains for the transportation industrial base (as determined by the Secretary of Transportation).

(vi) The Secretary of Agriculture, in consultation with the heads of appropriate agencies, shall submit a report on supply chains for the production of agricultural commodities and food products.

(b) The APNSA and the APEP shall, as appropriate and in consultation with the heads of appropriate agencies, recommend adjustments to the scope for each industrial base assessment, including digital networks, services, assets, and data ("digital products"), goods, services, and materials that are relevant within more than one defined industrial base, and add new assessments, as appropriate, for goods and materials not included in the above industrial base assessments.(c) Each report submitted under subsection (a) of this section shall include a review of:

(i) the critical goods and materials, as defined in section 6(b) of this order, underlying the supply chain in question;

(ii) other essential goods and materials, as defined in section 6(d) of this order, underlying the supply chain in question, including digital products;

(iii) the manufacturing or other capabilities necessary to produce the materials identified in subsections (c)(i) and (c)(ii) of this section, including emerging capabilities;

(iv) the defense, intelligence, cyber, homeland security, health, climate, environmental, natural, market, economic, geopolitical, human-rights or forced-labor risks or other contingencies that may disrupt, strain, compromise, or eliminate the supply chain—including risks posed by supply chains' reliance on digital products that may be vulnerable to failures or exploitation, and risks resulting from the elimination of, or failure to develop domestically, the capabilities identified in subsection (c)(iii) of this section—and that are sufficiently likely to arise so as to require reasonable preparation for their occurrence;

(v) the resilience and capacity of American manufacturing supply chains and the industrial and agricultural base—whether civilian or defense—of the United States to support national and economic security, emergency preparedness, and the policy identified in section 1 of this order, in the event any of the contingencies identified in subsection (c)(iv) of this section occurs, including an assessment of:

(A) the manufacturing or other needed capacities of the United States, including the ability to modernize to meet future needs;

(B) gaps in domestic manufacturing capabilities, including nonexistent, extinct, threatened, or single-point-of-failure capabilities;

(C) supply chains with a single point of failure, single or dual suppliers, or limited resilience, especially for subcontractors, as defined by section 44.101 of title 48, Code of Federal Regulations (Federal Acquisition Regulation);

(D) the location of key manufacturing and production assets, with any significant risks identified in subsection (c)(iv) of this section posed by the assets' physical location;

(E) exclusive or dominant supply of critical goods and materials and other essential goods and materials, as identified in subsections (c)(i) and (c)(ii) of this section, by or through nations that are, or are likely to become, unfriendly or unstable;

(F) the availability of substitutes or alternative sources for critical goods and materials and other essential goods and materials, as identified in subsections (c)(i) and (c)(ii) of this section;

(G) current domestic education and manufacturing workforce skills for the relevant sector and identified gaps, opportunities, and potential best practices in meeting the future workforce needs for the relevant sector;

(H) the need for research and development capacity to sustain leadership in the development of critical goods and materials and other essential goods and materials, as identified in subsections (c)(i) and (c)(ii) of this section;

(I) the role of transportation systems in supporting existing supply chains and risks associated with those transportation systems; and

(J) the risks posed by climate change to the availability, production, or transportation of critical goods and materials and other essential goods and materials, as identified in subsections (c)(i) and (c)(ii) of this section.

(vi) allied and partner actions, including whether United States allies and partners have also identified and prioritized the critical goods and materials and other essential goods and materials identified in subsections (c)(i) and (c)(ii) of this section, and possible avenues for international engagement. In assessing these allied and partner actions, the heads of agencies shall consult with the Secretary of State;

(vii) the primary causes of risks for any aspect of the relevant industrial base and supply chains assessed as vulnerable pursuant to subsection (c)(v) of this section;

(viii) a prioritization of the critical goods and materials and other essential goods and materials, including digital products, identified in subsections (c)(i) and (c)(ii) of this section for the purpose of identifying options and policy recommendations. The prioritization shall be based on statutory or regulatory requirements; importance to national security, emergency preparedness, and the policy set forth in section 1 of this order; and the review conducted pursuant to subsection (c)(v) of this section;

(ix) specific policy recommendations for ensuring a resilient supply chain for the sector. Such recommendations may include sustainably reshoring supply chains and developing domestic supplies, cooperating with allies and partners to identify alternative supply chains, building redundancy into domestic supply chains, ensuring and enlarging stockpiles, developing workforce capabilities, enhancing access to financing, expanding research and development to broaden supply chains, addressing risks due to vulnerabilities in digital products relied on by supply chains, addressing risks posed by climate change, and any other recommendations;

(x) any executive, legislative, regulatory, and policy changes and any other actions to strengthen the capabilities identified in subsection (c)(iii) of this section, and to prevent, avoid, or prepare for any of the contingencies identified in subsection (c)(iv) of this section; and

(xi) proposals for improving the Government-wide effort to strengthen supply chains, including proposals for coordinating actions required under this order with ongoing efforts that could be considered duplicative of the work of this order or with existing Government mechanisms that could be used to implement this order in a more effective manner.

(d) The APNSA and the APEP shall review the reports required under subsection (a) of this section and shall submit the reports to the President in an unclassified form, but may include a classified annex.

Sec. 5. General Review and Recommendations. As soon as practicable following the submission of the reports required under section 4 of this order, the APNSA and the APEP, in coordination with the heads of appropriate agencies, shall provide to the President one or more reports reviewing the actions taken over the previous year and making recommendations concerning:

(a) steps to strengthen the resilience of America's supply chains;

(b) reforms needed to make supply chain analyses and actions more effective, including statutory, regulatory, procedural, and institutional design changes. The report shall include recommendations on whether additional offices, personnel, resources, statistical data, or authorities are needed;

(c) [Superseded by Ex. Ord. No. 14123, §4(e), June 14, 2024, 89 F.R. 51951, see section 4(f) of Ex. Ord. No. 14123, set out below.]

(d) diplomatic, economic, security, trade policy, informational, and other actions that can successfully engage allies and partners to strengthen supply chains jointly or in coordination;

(e) insulating supply chain analyses and actions from conflicts of interest, corruption, or the appearance of impropriety, to ensure integrity and public confidence in supply chain analyses;

(f) reforms to domestic and international trade rules and agreements needed to support supply chain resilience, security, diversity, and strength;

(g) education and workforce reforms needed to strengthen the domestic industrial base;

(h) steps to ensure that the Government's supply chain policy supports small businesses, prevents monopolization, considers climate and other environmental impacts, encourages economic growth in communities of color and economically distressed areas, and ensures geographic dispersal of economic activity across all regions of the United States; and

(i) Federal incentives and any amendments to Federal procurement regulations that may be necessary to attract and retain investments in critical goods and materials and other essential goods and materials, as defined in sections 6(b) and 6(d) of this order, including any new programs that could encourage both domestic and foreign investment in critical goods and materials.

Sec. 6. Definitions. For purposes of this order:

(a) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5). "Agency" also means any component of the Executive Office of the President.

(b) "Critical goods and materials" means goods and raw materials currently defined under statute or regulation as "critical" materials, technologies, or infrastructure.

(c) "Critical minerals" has the meaning given to that term in Executive Order 13953 of September 30, 2020 (Addressing the Threat to the Domestic Supply Chain From Reliance on Critical Minerals From Foreign Adversaries and Supporting the Domestic Mining and Processing Industries) [30 U.S.C. 1601 note].

(d) "Other essential goods and materials" means goods and materials that are essential to national and economic security, emergency preparedness, or to advance the policy set forth in section 1 of this order, but not included within the definition of "critical goods and materials."

(e) "Supply chain," when used with reference to minerals, includes the exploration, mining, concentration, separation, alloying, recycling, and reprocessing of minerals.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Ex. Ord. No. 14075. Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals

Ex. Ord. No. 14075, June 15, 2022, 87 F.R. 37189, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Our Nation has made great strides in fulfilling the fundamental promises of freedom and equality for lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) Americans, owing to the leadership of generations of LGBTQI+ individuals. In spite of this historic progress, LGBTQI+ individuals and families still face systemic discrimination and barriers to full participation in our Nation's economic and civic life. These disparities and barriers can be the greatest for transgender people and LGBTQI+ people of color. Today, unrelenting political and legislative attacks at the State level—on LGBTQI+ children and families in particular—threaten the civil rights gains of the last half century and put LGBTQI+ people at risk. These attacks defy our American values of liberty and dignity, corrode our democracy, and threaten basic personal safety. They echo the criminalization that LGBTQI+ people continue to face in some 70 countries around the world. The Federal Government must defend the rights and safety of LGBTQI+ individuals.

It is therefore the policy of my Administration to combat unlawful discrimination and eliminate disparities that harm LGBTQI+ individuals and their families, defend their rights and safety, and pursue a comprehensive approach to delivering the full promise of equality for LGBTQI+ individuals, consistent with Executive Order 13988 of January 20, 2021 (Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation) [42 U.S.C. 2000e note].

The Federal Government must take action to address the significant disparities that LGBTQI+ youth face in the foster care system, the misuse of State and local child welfare agencies to target LGBTQI+ youth and families, and the mental health needs of LGBTQI+ youth. My Administration must safeguard LGBTQI+ youth from dangerous practices like so-called "conversion therapy"—efforts to suppress or change an individual's sexual orientation, gender identity, or gender expression—a discredited practice that research indicates can cause significant harm, including higher rates of suicide-related thoughts and behaviors by LGBTQI+ youth. The Federal Government must strengthen the supports for LGBTQI+ students in our Nation's schools and other education and training programs. It must also address the discrimination and barriers that LGBTQI+ individuals and families face by expanding access to comprehensive health care, including reproductive health; protecting the rights of LGBTQI+ older adults; and preventing and addressing LGBTQI+ homelessness and housing instability. Through these actions, the Federal Government will help ensure that every person—regardless of who they are or whom they love—has the opportunity to live freely and with dignity.

Sec. 2. Addressing Harmful and Discriminatory Legislative Attacks on LGBTQI+ Children, Youth, and Families. (a) The Secretary of Health and Human Services (HHS) shall, as appropriate and consistent with applicable law, use the Department of HHS's authorities to protect LGBTQI+ individuals' access to medically necessary care from harmful State and local laws and practices, and shall promote the adoption of promising policies and practices to support health equity, including in the area of mental health care, for LGBTQI+ youth and adults. Within 200 days of the date of this order [June 15, 2022], the Secretary of HHS shall develop and release sample policies for States to safeguard and expand access to health care for LGBTQI+ individuals and their families, including mental health services.

(b) The Secretary of Education shall, as appropriate and consistent with applicable law, use the Department of Education's authorities to support LGBTQI+ students, their families, educators, and other school personnel targeted by harmful State and local laws and practices, and shall promote the adoption of promising policies and practices to support the safety, well-being, and rights of LGBTQI+ students. Within 200 days of the date of this order, the Secretary of Education shall develop and release sample policies for supporting LGBTQI+ students' well-being and academic success in schools and educational institutions.

Sec. 3. Addressing Exposure to So-Called Conversion Therapy. (a) The Secretary of HHS shall establish an initiative to reduce the risk of youth exposure to so-called conversion therapy. As part of that initiative, the Secretary of HHS shall, as appropriate and consistent with applicable law:

(i) consider whether to issue guidance clarifying for HHS programs and services agencies that so-called conversion therapy does not meet criteria for use in federally funded health and human services programs;

(ii) increase public awareness of the harms and risks associated with so-called conversion therapy for LGBTQI+ youth and their families;

(iii) increase the availability of technical assistance and training to health care and social service providers on evidence-informed promising practices for supporting the health, including mental health, of LGBTQI+ youth, and on the dangers of so-called conversion therapy; and

(iv) seek funding opportunities for providers of evidence-based trauma-informed services to better support survivors of so-called conversion therapy.

(b) The Federal Trade Commission is encouraged to consider whether so-called conversion therapy constitutes an unfair or deceptive act or practice, and to issue such consumer warnings or notices as may be appropriate.

(c) To address so-called conversion therapy around the world, within 180 days of the date of this order, the Secretary of State, in collaboration with the Secretary of the Treasury, the Secretary of HHS, and the Administrator of the United States Agency for International Development, shall develop an action plan to promote an end to its use around the world. In developing the action plan, the Secretary of State shall consider the use of United States foreign assistance programs and the United States voice and vote in multilateral development banks and international development institutions of which the United States is a shareholder or donor to take appropriate steps to prevent the use of so-called conversion therapy, as well as to help ensure that United States foreign assistance programs do not use foreign assistance funds for so-called conversion therapy. To further critical data collection, the Secretary of State shall instruct all United States Embassies and Missions worldwide to submit additional information on the practice and incidence of so-called conversion therapy as part of the Country Reports on Human Rights Practices.

Sec. 4. Promoting Family Counseling and Support of LGBTQI+ Youth as a Public Health Priority of the United States. (a) "Family counseling and support programs" are defined for the purposes of this order as voluntary programs in which families and service providers may elect to participate that seek to prevent or reduce behaviors associated with family rejection of LGBTQI+ youth by providing developmentally appropriate support, counseling, or information to parents, families, caregivers, child welfare and school personnel, or health care professionals on how to support an LGBTQI+ youth's safety and well-being.

(b) The Secretary of HHS shall seek to expand the availability of family counseling and support programs in federally funded health, human services, and child welfare programs by:

(i) considering whether to issue guidance regarding the extent to which Federal funding under Title IV–B [42 U.S.C. 620 et seq.] and IV–E [42 U.S.C. 670 et seq.] of the Social Security Act, 42 U.S.C. Ch. 7, may be used to provide family counseling and support programs;

(ii) considering funding opportunities for programs that implement family counseling and support models;

(iii) considering opportunities through the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health to increase Federal research into the impacts of family rejection and family support on the mental health and long-term well-being of LGBTQI+ individuals; and

(iv) ensuring that HHS data, investments, resources, and partnerships related to the CDC Adverse Childhood Experiences program address the disparities faced by LGBTQI+ children and youth.

Sec. 5. Addressing Discrimination and Barriers Faced by LGBTQI+ Children, Youth, Parents, Caretakers, and Families in the Child Welfare System and Juvenile Justice Systems. (a) The Secretary of HHS shall consider how to use the Department's authorities to strengthen non-discrimination protections on the basis of sex, including sexual orientation, gender identity, and sex characteristics, in its programs and services, consistent with Executive Order 13988 and applicable legal requirements.

(b) The Secretary of HHS shall direct the Assistant Secretary for Family Support to establish an initiative to partner with State child welfare agencies to help address and eliminate disparities in the child welfare system experienced by LGBTQI+ children, parents, and caregivers, including: the over-representation of LGBTQI+ youth in the child welfare system, including over-representation in congregate placements; disproportionately high rates of abuse, and placements in unsupportive or hostile environments faced by LGBTQI+ youth in foster care; disproportionately high rates of homelessness faced by LGBTQI+ youth who exit foster care; and discrimination faced by LGBTQI+ parents, kin, and foster and adoptive families. The initiative, as appropriate and consistent with applicable law, shall also take actions to:

(i) seek funding opportunities for programs and services that improve outcomes for LGBTQI+ children in the child welfare system;

(ii) provide increased training and technical assistance to State child welfare agencies and child welfare personnel on promising practices to support LGBTQI+ youth in foster care and LGBTQI+ parents and caregivers;

(iii) develop sample policies for supporting LGBTQI+ children, parents, and caregivers in the child welfare system;

(iv) promote equity and inclusion for LGBTQI+ foster and adoptive parents in their interactions with the child welfare system;

(v) evaluate the rate of child removals from LGBTQI+ families of origin, in particular families that include LGBTQI+ women of color, and develop proposals to address any disproportionate rates of child removals faced by such families;

(vi) assess and improve the responsible collection and use of data on sexual orientation and gender identity in the child welfare system to measure and address inequities faced by LGBTQI+ children, parents, and caregivers, while safeguarding the privacy, safety, and civil rights of LGBTQI+ youth; and

(vii) advance policies that help to prevent the placement of LGBTQI+ youth in foster and congregate care environments that will be hostile to their gender identity or sexual orientation.

(c) The Attorney General shall establish a clearinghouse within the Office of Juvenile Justice and Delinquency Prevention to provide effective training, technical assistance, and other resources for jurisdictions seeking to better serve LGBTQI+ youth using a continuum-of-care framework. The clearinghouse shall include juvenile justice and delinquency prevention programs addressing the needs, including mental health needs, of LGBTQI+ youth.

Sec. 6. Reviewing Eligibility Standards for Federal Benefits and Programs. (a) Within 180 days of the date of this order, the Secretary of HHS shall conduct a study on the impact that current Federal statutory and regulatory eligibility standards have on the ability of LGBTQI+ and other households as determined by the Secretary to access Federal benefits and programs for families, and shall produce a public report with findings and recommendations that could increase LGBTQI+ and such other households' participation in and eligibility for Federal benefits and programs for families.

(b) Within 100 days of the release of the recommendations required by subsection (a) of this section, the Director of the Office of Management and Budget (OMB) shall coordinate with executive departments and agencies (agencies) that administer programs that establish eligibility standards for participation by families to complete a review of agencies' current eligibility standards for families. Such agencies shall seek opportunities, consistent with applicable law, to adopt more inclusive eligibility standards in line with the recommendations in the report produced pursuant to subsection (a) of this section.

Sec. 7. Safeguarding Access to Health Care and Other Health Supports for LGBTQI+ Individuals. The Secretary of HHS shall establish an initiative to address the health disparities facing LGBTQI+ youth and adults, take steps to prevent LGBTQI+ suicide, and address the barriers and exclusionary policies that LGBTQI+ individuals and families face in accessing quality, affordable, comprehensive health care, including mental health care, reproductive health care, and HIV prevention and treatment. As part of that initiative, the Secretary of HHS shall, as appropriate and consistent with applicable law:

(a) seek funding opportunities related to health, including mental health, for LGBTQI+ individuals, especially youth, including resources for the Nation's suicide prevention and crisis support services to support LGBTQI+ individuals;

(b) promote expanded access to comprehensive health care for LGBTQI+ individuals, including by working with States on expanding access to gender-affirming care;

(c) issue guidance through the Substance Abuse and Mental Health Services Administration and the Office of the Assistant Secretary for Health, within 100 days of the date of this order, on providing evidence-informed mental health care and substance use treatment and support services for LGBTQI+ youth; and

(d) develop and issue a report, within 1 year of the date of this order, and after consultation with medical experts, medical associations, and individuals with lived expertise, on promising practices for advancing health equity for intersex individuals.

Sec. 8. Supporting LGBTQI+ Students in our Nation's Schools and Educational Institutions. The Secretary of Education shall establish a Working Group on LGBTQI+ Students and Families, which shall lead an initiative to address discrimination against LGBTQI+ students and strengthen supports for LGBTQI+ students and families. Through that Working Group, the Secretary of Education shall, as appropriate and consistent with applicable law:

(a) review, revise, develop, and promote guidance, technical assistance, training, promising practices, and sample policies for States, school districts, and other educational institutions to promote safe and inclusive learning environments in which all LGBTQI+ students thrive and to address bullying of LGBTQI+ students;

(b) identify promising practices for helping to ensure that school-based health services and supports, especially mental health services, are accessible to and supportive of LGBTQI+ students;

(c) seek funding opportunities for grantees and programs that will improve educational and health outcomes, especially mental health outcomes, for LGBTQI+ students and other underserved students; and

(d) seek to strengthen supportive services for LGBTQI+ students and families experiencing homelessness, including those provided by the National Center for Homeless Education.

Sec. 9. Preventing and Ending LGBTQI+ Homelessness and Housing Instability. (a) The Secretary of Housing and Urban Development (HUD) shall establish a Working Group on LGBTQI+ Homelessness and Housing Equity, which shall lead an initiative that aims to prevent and address homelessness and housing instability among LGBTQI+ individuals, including youth, and households. As part of that initiative, the Secretary of HUD shall, as appropriate and consistent with applicable law:

(i) identify and address barriers to housing faced by LGBTQI+ individuals, including youth, and families that place them at high risk of housing instability and homelessness;

(ii) provide guidance and technical assistance to HUD contractors, grantees, and programs on effectively and respectfully serving LGBTQI+ individuals, including youth, and families;

(iii) develop and provide guidance, sample policies, technical assistance, and training to Continuums of Care, established pursuant to HUD's Continuum of Care Program; homeless service providers; and housing providers to improve services and outcomes for LGBTQI+ individuals, including youth, and families who are experiencing or are at risk of homelessness, and to ensure compliance with the Fair Housing Act, 42 U.S.C. 3601 et seq., and HUD's 2012 and 2016 Equal Access Rules; and

(iv) seek funding opportunities, including through the Youth Homelessness Demonstration Program, for culturally appropriate services that address barriers to housing for LGBTQI+ individuals, including youth, and families, and the high rates of LGBTQI+ youth homelessness.

(b) The Secretary of HHS, through the Assistant Secretary for Family Support, shall, as appropriate and consistent with applicable law:

(i) use agency guidance, training, and technical assistance to implement non-discrimination protections on the basis of sexual orientation and gender identity in programs established pursuant to the Runaway and Homeless Youth Act (Public Law 110–378) [title III of Pub. L. 93–415, 34 U.S.C. 11201 et seq.], and ensure that such programs address LGBTQI+ youth homelessness; and

(ii) coordinate with youth advisory boards funded through the Runaway and Homeless Youth Training and Technical Assistance Center and the National Runaway Safeline to seek input from LGBTQI+ youth who have experienced homelessness on improving federally funded services and programs.

Sec. 10. Strengthening Supports for LGBTQI+ Older Adults. The Secretary of HHS shall address discrimination, social isolation, and health disparities faced by LGBTQI+ older adults, including by:

(a) developing and publishing guidance on non-discrimination protections on the basis of sex, including sexual orientation, gender identity, and sex characteristics, and other rights of LGBTQI+ older adults in long-term care settings;

(b) developing and publishing a document parallel to the guidance required by subsection (a) of this section in plain language, titled "Bill of Rights for LGBTQI+ Older Adults," to support LGBTQI+ older adults and providers in understanding the rights of LGBTQI+ older adults in long-term care settings;

(c) considering whether to issue a notice of proposed rulemaking to clarify that LGBTQI+ individuals are included in the definition of "greatest social need" for purposes of targeting outreach, service provision, and funding under the Older Americans Act [of 1965], 42 U.S.C. 3001 et seq.; and

(d) considering ways to improve and increase appropriate data collection on sexual orientation and gender identity in surveys on older adults, including by providing technical assistance to States on the collection of such data.

Sec. 11. Promoting Inclusive and Responsible Federal Data Collection Practices. (a) Advancing equity and full inclusion for LGBTQI+ individuals requires that the Federal Government use evidence and data to measure and address the disparities that LGBTQI+ individuals, families, and households face, while safeguarding privacy, security, and civil rights.

(b) To advance the responsible and effective collection and use of data on sexual orientation, gender identity, and sex characteristics (SOGI data), the Co-Chairs of the Interagency Working Group on Equitable Data established in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government) [set out above], shall, within 30 days of the date of this order [June 15, 2022], establish a subcommittee on SOGI data to coordinate with agencies on strengthening the Federal Government's collection of SOGI data to advance equity for LGBTQI+ individuals. Within 120 days of the date of this order, the subcommittee shall, in coordination with the Director of OMB, develop and release a Federal Evidence Agenda on LGBTQI+ Equity, which shall:

(i) describe disparities faced by LGBTQI+ individuals that could be better understood through Federal statistics and data collection;

(ii) identify, in coordination with agency Statistical Officials, Chief Science Officers, Chief Data Officers, and Evaluation Officers, Federal data collections where improved SOGI data collection may be important for advancing the Federal Government's ability to measure disparities facing LGBTQI+ individuals; and

(iii) identify practices for all agencies engaging in SOGI data collection to follow in order to safeguard privacy, security, and civil rights, including with regard to appropriate and robust practices of consent for the collection of this data and restrictions on its use or transfer.

(c) Within 200 days of the date of this order, the head of each agency that conducts relevant programs or statistical surveys related to the Federal Evidence Agenda on LGBTQI+ Equity shall submit to the Co-Chairs of the Interagency Working Group on Equitable Data a SOGI Data Action Plan, which shall detail how the agency plans to use SOGI data to advance equity for LGBTQI+ individuals and shall identify how the agency plans to implement the recommendations in the Federal Evidence Agenda on LGBTQI+ Equity.

(d) To support implementation of agency SOGI Data Action Plans, the head of each agency shall include in the agency's annual budget submission to the Director of OMB a request for any necessary funding increases to support improved SOGI data practices.

(e) Within 180 days of the date of this order, to support agencies in appropriately collecting and using SOGI data, the Director of OMB, through the Chief Statistician of the United States, shall publish a report with recommendations for agencies on the best practices for the collection of SOGI data on Federal statistical surveys, including strategies to preserve data privacy and safety.

(f) On an annual basis, the Director of OMB, through the Chief Statistician of the United States, shall evaluate the efficacy of SOGI data practices across agencies, and shall consider whether to update reports, guidance, or directives based upon the latest evidence and research as needed.

Sec. 12. Reporting. Within 1 year of the date of this order:

(a) The Attorney General shall submit a report to the President through the Assistant to the President for Domestic Policy (APDP) detailing progress in implementing section 5 of this order;

(b) The Secretary of HHS shall submit a report to the President through the APDP detailing progress in implementing sections 2 through 7 and 9 through 11 of this order;

(c) The Secretary of Education shall submit a report to the President through the APDP detailing progress in implementing sections 2, 8, and 11 of this order;

(d) The Secretary of HUD shall submit a report to the President through the APDP detailing progress in implementing sections 9 and 11 of this order;

(e) The Secretary of State shall submit a report to the President through the APDP detailing progress in implementing section 3 of this order;

(f) The Director of OMB shall submit a report to the President through the APDP detailing progress in implementing sections 6 and 11 of this order; and

(g) The Director of OMB, through the Chief Statistician of the United States, shall submit a report to the President through the APDP detailing progress in implementing section 11 of this order.

Sec. 13. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Ex. Ord. No. 14091. Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

Ex. Ord. No. 14091, Feb. 16, 2023, 88 F.R. 10825, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. On my first day in office, I signed Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government) [set out above], which charged the Federal Government with advancing equity for all, including communities that have long been underserved, and addressing systemic racism in our Nation's policies and programs. By advancing equity, the Federal Government can support and empower all Americans, including the many communities in America that have been underserved, discriminated against, and adversely affected by persistent poverty and inequality. We can also deliver resources and benefits equitably to the people of the United States and rebuild trust in Government.

Over the past 2 years, through landmark legislation—including the American Rescue Plan Act of 2021 (Public Law 117–2); the bipartisan Infrastructure Investment and Jobs Act (Public Law 117–58) (Bipartisan Infrastructure Law); division A of Public Law 117–167, known as the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act of 2022; Public Law 117–169, commonly referred to as the Inflation Reduction Act of 2022; and the Bipartisan Safer Communities Act (Public Law 117–159) [see Tables for classifications]—as well as executive action, my Administration has vigorously championed racial equity and has advanced equal opportunity for underserved communities. Executive departments and agencies (agencies) have engaged in historic work assessing how their policies and programs perpetuate barriers for underserved communities and developing strategies for removing those barriers. They have made important progress incorporating an evidence-based approach to equitable policymaking and implementation, and they have crafted new action plans to advance equity. In short, my Administration has embedded a focus on equity into the fabric of Federal policymaking and service delivery. Our work to transform the way the Federal Government serves the American people has been complemented by Executive Order 14035 of June 25, 2021 (Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce) [42 U.S.C. 2000e note], which continues to help ensure that my Administration—the most diverse in our Nation's history—reflects the growing diversity of the communities we serve.

My Administration's commitment to equity has produced better decision-making and more equitable outcomes. We have delivered the most equitable economic recovery in memory, and, driven by the expanded Child Tax Credit, we cut child poverty to its lowest rate on record in 2021, including record low Black, Latino, Native American, and rural child poverty. Under my Administration, the economy has created nearly 11 million jobs, and we have brought down unemployment nationwide—in particular for Black and Latino workers, for whom unemployment rates are near 50-year lows. My Administration has provided emergency rental assistance to help millions of families stay in their homes, and we have prohibited Federal contractors from paying people with disabilities subminimum wages. We are rebuilding roads and bridges, replacing the Nation's lead pipes to provide clean drinking water for all, delivering access to affordable high-speed internet to Americans in both rural and urban communities, investing in public transit, and reconnecting communities previously cut off from economic opportunity by highways, rail lines, or disinvestment. My Administration has provided funding to improve accessibility for passengers with disabilities on rail systems and in airports, expanded health coverage for millions of Americans, and expanded home- and community-based services so more people with disabilities and older adults can live independently. We have secured billions of dollars in direct new investments for Tribal Nations and Native American communities and have directed an increase in the share of Federal Government contract spending awarded to small disadvantaged businesses. My Administration has taken action to strengthen public safety, advance criminal justice reform, correct our country's failed approach to marijuana, protect civil rights, and stand up against rising extremism and hate-fueled violence that threaten the fabric of our democracy. We have taken historic steps to advance full equality for lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) Americans, including by ending the ban on transgender service members in our military; prohibiting discrimination based on sexual orientation, gender identity, and sex characteristics across Federal programs; and signing into law the Respect for Marriage Act (Public Law 117–228) [enacting section 1738C of Title 28, Judiciary and Judicial Procedure, and provisions set out as notes under section 7 of Title 1, General Provisions, and repealing former section 1738C of Title 28] to preserve protections for the rights of same-sex and interracial couples. My Administration is also implementing the first-ever National Strategy on Gender Equity and Equality to ensure that all people, regardless of gender, have the opportunity to realize their full potential.

These transformative achievements have advanced the work of building a more equitable Nation. Yet, members of underserved communities—many of whom have endured generations of discrimination and disinvestment—still confront significant barriers to realizing the full promise of our great Nation, and the Federal Government has a responsibility to remove these barriers. It is imperative to reject the narrow, cramped view of American opportunity as a zero-sum game. When any person or community is denied freedom, dignity, and prosperity, our entire Nation is held back. But when we lift each other up, we are all lifted up. Therefore, my Administration must take additional action across the Federal Government—in collaboration with civil society, the private sector, and State and local government—to continue the work begun with Executive Order 13985 to combat discrimination and advance equal opportunity, including by redressing unfair disparities and removing barriers to Government programs and services. Achieving racial equity and support for underserved communities is not a one-time project. It must be a multi-generational commitment, and it must remain the responsibility of agencies across the Federal Government. It therefore continues to be the policy of my Administration to advance an ambitious, whole-of-government approach to racial equity and support for underserved communities and to continuously embed equity into all aspects of Federal decision-making.

This order builds upon my previous equity-related Executive Orders by extending and strengthening equity-advancing requirements for agencies, and it positions agencies to deliver better outcomes for the American people. In doing so, the Federal Government shall continue to pursue ambitious goals to build a strong, fair, and inclusive workforce and economy; invest in communities where Federal policies have historically impeded equal opportunity—both rural and urban—in ways that mitigate economic displacement, expand access to capital, preserve housing and neighborhood affordability, root out discrimination in the housing market, and build community wealth; advance equity in health, including mental and behavioral health and well-being; deliver an equitable response to the COVID–19 pandemic; deliver environmental justice and implement the Justice40 Initiative; build prosperity in rural communities; ensure equitable procurement practices, including through small disadvantaged businesses contracting and the Buy Indian Act (25 U.S.C. 47); pursue educational equity so that our Nation's schools put every student on a path to success; improve our Nation's criminal justice system to end unjust disparities, strengthen public safety, and ensure equal justice under law; promote equity in science and root out bias in the design and use of new technologies, such as artificial intelligence; protect the right to vote and realize the promise of our Nation's civil rights laws; and promote equity and human rights around the world through our foreign policy and foreign assistance. By redoubling our efforts, the Federal Government can help bridge the gap between the world we see and the future we seek.

Sec. 2. Establishing Equity-Focused Leadership Across the Federal Government. (a) Establishment of Agency Equity Teams. The Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Secretary of Energy, the Secretary of Education, the Secretary of Veterans Affairs, the Secretary of Homeland Security, the Administrator of the Small Business Administration, the Commissioner of Social Security, the Administrator of General Services, the Administrator of the United States Agency for International Development, the Administrator of the Environmental Protection Agency, the Administrator of the National Aeronautics and Space Administration, the Director of the National Science Foundation, and the Director of the Office of Personnel Management (agency heads) shall, within 30 days of the date of this order [Feb. 16, 2023], ensure that they have in place an Agency Equity Team within their respective agencies to coordinate the implementation of equity initiatives and ensure that their respective agencies are delivering equitable outcomes for the American people.

(i) Each Agency Equity Team shall be led by a designated senior official (senior designee) charged with implementing my Administration's equity initiatives, and shall include senior officials from the office of the agency head and the agency's program, policy, civil rights, regulatory, science, technology, service delivery, financial assistance and grants, data, budget, procurement, public engagement, legal, and evaluation offices, as well as the agency's Chief Diversity Officer, to the extent applicable. Agency Equity Teams shall include a combination of competitive service employees, as defined by 5 U.S.C. 2102(a), and appointees, as defined in Executive Order 13989 of January 20, 2021 (Ethics Commitments by Executive Branch Personnel) [5 U.S.C. 7301 note], and, to the extent practicable, shall build upon and coordinate with the agency's existing structures and processes, including with the agency's environmental justice officer designated pursuant to Executive Order 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad) [42 U.S.C. 4321 note], and with the senior agency official designated to coordinate with the Gender Policy Council pursuant to Executive Order 14020 of March 8, 2021 (Establishment of the White House Gender Policy Council) [42 U.S.C. 2000e note].

(ii) The senior designee at each agency shall be responsible for delivering equitable outcomes, to the extent consistent with applicable law, and shall report to the agency head.

(iii) Each Agency Equity Team shall support continued equity training and equity leadership development for staff across all levels of the agency's workforce.

(iv) Each agency's senior designee shall coordinate with the agency head, agency budget officials, and the Office of Management and Budget (OMB) to ensure that the Agency Equity Team has sufficient resources, including staffing and data collection capacity, to advance the agency's equity goals. Agency heads shall ensure that their respective Agency Equity Teams serve in an advisory and coordination role on priority agency actions.

(b) Establishment of the White House Steering Committee on Equity. There is hereby established a White House Steering Committee on Equity (Steering Committee), which shall be chaired by the Assistant to the President for Domestic Policy. The Steering Committee shall include senior officials representing policy councils and offices within the Executive Office of the President, as appropriate. The Steering Committee shall:

(i) coordinate Government-wide efforts to advance equity;

(ii) coordinate an annual process to consult with agency heads on their respective agencies' Equity Action Plans, established in section 3(a) of this order;

(iii) coordinate with the leadership of the White House Initiatives created by Executive Order 14031 of May 28, 2021 (Advancing Equity, Justice, and Opportunity for Asian Americans, Native Hawaiians, and Pacific Islanders) [42 U.S.C. 3501 note]; Executive Order 14041 of September 3, 2021 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity Through Historically Black Colleges and Universities) [20 U.S.C. 1060 note]; Executive Order 14045 of September 13, 2021 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Hispanics) [20 U.S.C. 3411 note]; Executive Order 14049 of October 11, 2021 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Native Americans and Strengthening Tribal Colleges and Universities) [20 U.S.C. 7401 note]; and Executive Order 14050 of October 19, 2021 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Black Americans) [20 U.S.C. 3411 note];

(iv) coordinate with the White House Environmental Justice Interagency Council to ensure that equity and environmental justice efforts are consistent and mutually reinforcing;

(v) coordinate with the White House Gender Policy Council to align efforts to advance gender equity with broader equity efforts; and

(vi) monitor agencies' activities and promote accountability to ensure that agencies undertake ambitious and measurable steps to deliver equitable outcomes for the American people.

Sec. 3. Delivering Equitable Outcomes Through Government Policies, Programs, and Activities. Each agency head shall support ongoing implementation of a comprehensive equity strategy that uses the agency's policy, budgetary, programmatic, service-delivery, procurement, data-collection processes, grantmaking, public engagement, research and evaluation, and regulatory functions to enable the agency's mission and service delivery to yield equitable outcomes for all Americans, including underserved communities.

(a) In September 2023, and on an annual basis thereafter, concurrent with the agencies' submission to OMB for the President's Budget, agency heads shall submit an Equity Action Plan to the Steering Committee. The Equity Action Plan shall include actions to advance equity, including under Executive Order 13985, Executive Order 13988 of January 20, 2021 (Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation) [42 U.S.C. 2000e note], Executive Order 14008, and Executive Order 14020.

(b) Each Equity Action Plan, which shall be made public, shall include:

(i) an update on the progress made by the agency on the actions, performance measures, and milestones highlighted in the preceding year's Equity Action Plan, as well as the agency's performance on the annual Environmental Justice Scorecard established pursuant to section 223 of Executive Order 14008, as applicable;

(ii) potential barriers that underserved communities may face in accessing and benefitting from the agency's policies, programs, and activities, including procurement, contracting, and grant opportunities;

(iii) strategies, including new or revised policies and programs, to address the barriers described in subsection (b)(ii) of this section and to ensure equitable access and opportunity for underserved communities; and

(iv) a description of how the agency intends to meaningfully engage with underserved communities, including through accessible, culturally and linguistically appropriate outreach, and the incorporation of the perspectives of those with lived experiences into agency policies, programs, and activities.

(c) Starting with formulation of the Fiscal Year 2025 Budget and for each subsequent year, the Director of OMB shall consider how the President's Budget can support the Equity Action Plans described in subsection (a) of this section in order to reinforce agency efforts to meaningfully engage with and invest in underserved communities and advance equitable outcomes.

(d) To ensure effective implementation of Equity Action Plans, and to strengthen the Federal Government's equitable delivery of resources and benefits to all, agency heads shall:

(i) prioritize and incorporate strategies to advance equity—including by pursuing evidence-based approaches, reducing administrative burdens, increasing access to technical assistance, and implementing equitable data practices, consistent with applicable law, into their respective:

(A) agency strategic plans developed pursuant to 5 U.S.C. 306(a);

(B) agency performance plans developed pursuant to 31 U.S.C. 1115 and 1116;

(C) portions of performance plans relating to human and capital resource requirements to achieve performance goals pursuant to 31 U.S.C. 1115(b)(5)(A);

(D) agency priority goals developed pursuant to 31 U.S.C. 1120;

(E) evaluation and evidence-building activities pursuant to the Foundations for Evidence-Based Policymaking Act of 2018 (Public Law 115–435) [see Tables for classification] and section 5 of the Presidential Memorandum of January 27, 2021 (Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking) [42 U.S.C. 6601 note];

(F) customer experience capacity assessments and action plans pursuant to section 280 of OMB Circular A–11 and Executive Order 14058 of December 13, 2021 (Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government) [31 U.S.C. 501 note];

(G) selection of items for their respective regulatory agendas and plans pursuant to sections 4(b) and (c) of Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review) [set out above], as amended;

(H) individual performance plans for senior executives consistent with 5 U.S.C. 4312, and for other senior employees consistent with 5 U.S.C. 4302; and

(I) as permitted by law, activities, acquisitions, and strategies that the Director of OMB determines to be appropriate to further the implementation of this order;

(ii) identify opportunities, as appropriate and consistent with applicable law, to incorporate into new regulations and to modify their respective agencies' regulations, internal- and public-facing guidance, and other policies to include advancing equity as part of their respective agencies' missions; and

(iii) promote coordination within and among their respective agencies concerning the elements of their respective Equity Action Plans and the recommendations of the Interagency Working Group on Equitable Data established in Executive Order 13985.

Sec. 4. Embedding Equity into Government-wide Processes.

(a) The Director of OMB shall consider opportunities to review and update internal processes, directives, and Government-wide guidance (such as OMB Circulars and Memoranda) to support equitable decision-making, promote equitable deployment of financial and technical assistance, and assist agencies in advancing equity, as appropriate and wherever possible.

(b) When designing, developing, acquiring, and using artificial intelligence and automated systems in the Federal Government, agencies shall do so, consistent with applicable law, in a manner that advances equity.

Sec. 5. Delivering Equitable Outcomes in Partnership with Underserved Communities. Underserved communities often face significant barriers and legacy exclusions in engaging with agencies and providing input on Federal policies and programs that affect them. Agencies must increase engagement with underserved communities by identifying and applying innovative approaches to improve the quality, frequency, and accessibility of engagement. Agencies shall, consistent with applicable law:

(a) conduct proactive engagement, as appropriate, with members of underserved communities—for example, through culturally and linguistically appropriate listening sessions, outreach events, or requests for information—during development and implementation of agencies' respective annual Equity Action Plans, annual budget submissions, grants and funding opportunities, and other actions, including those outlined in section 3(d) of this order;

(b) collaborate with OMB, as appropriate, to identify and develop tools and methods for engagement with underserved communities, including those related to agency budget development and rulemaking;

(c) create more flexibilities, incentives, and guidelines for recipients of Federal funding and permits to proactively engage with underserved communities as projects are designed and implemented;

(d) identify funding opportunities for community- and faith-based organizations working in and with underserved communities to improve access to benefits and services for members of underserved communities; and

(e) identify and address barriers for individuals with disabilities, as well as older adults, to participate in the engagement process, including barriers to the accessibility of physical spaces, virtual platforms, presentations, systems, training, and documents.

Sec. 6. Creating Economic Opportunity in Rural America and Advancing Urban Equitable Development. (a) Agencies shall undertake efforts, to the extent consistent with applicable law, to help rural communities identify and access Federal resources in order to create equitable economic opportunity and advance projects that build community wealth, including by providing or supporting technical assistance; incentivizing the creation of good, high-paying union jobs in rural areas; conducting outreach to and soliciting input from rural community leaders; and contributing new resources and support to interagency programs such as the Rural Partners Network.

(b) Agencies shall undertake efforts, to the extent consistent with applicable law, to strengthen urban equitable development policies and practices, such as advancing community wealth building projects; preventing physical and economic displacement as the result of Federal investments; facilitating equitable flows of private capital, including to underserved communities; and incorporating outcome-based metrics focused on urban equitable development in the design and deployment of Federal programs and policies. To support these efforts, the Assistant to the President for Domestic Policy shall issue a policy memorandum on actions agencies can take to advance urban equitable development.

(c) Executive Order 13946 of August 24, 2020 (Targeting Opportunity Zones and Other Distressed Communities for Federal Site Locations) [85 F.R. 52879], including the amendments it made to Executive Order 12072 of August 16, 1978 (Federal Space Management) [40 U.S.C. 121 note], and to Executive Order 13006 of May 21, 1996 (Locating Federal Facilities on Historic Properties in Our Nation's Central Cities) [40 U.S.C. 3306 note], is revoked. Executive Orders 12072 and 13006 are reinstated as they were prior to issuance of Executive Order 13946. Executive Order 13853 of December 12, 2018 (Establishing the White House Opportunity and Revitalization Council) [42 U.S.C. 5301 note], is also revoked. All agencies shall, consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. 551 et seq.), consider taking prompt action to revoke any rules, regulations, guidelines, or policies implementing these Presidential actions that are inconsistent with the provisions of this order. Further, agencies shall ensure that planning for new Federal facilities or new leases includes consideration of neighborhoods and locations that are near existing employment centers and are accessible to a broad range of the region's workforce and population by public transit (where it exists), consistent with Executive Order 12072. Agencies shall identify displacement risks associated with Federal facility siting and development and shall engage with any community that may be affected, along with appropriate regional and local officials, to mitigate those displacement risks.

Sec. 7. Advancing Equitable Procurement. (a) The Government-wide goal for Federal procurement dollars awarded to small business concerns owned and controlled by socially and economically disadvantaged individuals (SDBs) shall be 15 percent in Fiscal Year 2025. In furtherance of this goal, OMB shall set a Government-wide SDB goal for Fiscal Year 2024. The Small Business Administration shall, on an annual basis, work with each agency to establish an agency-specific goal that, in aggregate, supports the Government-wide goal. Further, agencies shall undertake efforts to increase contracting opportunities for all other small business concerns as described in the Small Business Act (15 U.S.C. ch. 14A) [§631 et seq.].

(b) Agencies shall expand procurement opportunities for SDBs through Federal financial assistance, consistent with applicable law, under the Bipartisan Infrastructure Law, the Inflation Reduction Act of 2022, and other Federal financial assistance programs.

Sec. 8. Affirmatively Advancing Civil Rights. Agencies shall comprehensively use their respective civil rights authorities and offices to prevent and address discrimination and advance equity for all, including to increase the effects of civil rights enforcement and to increase public awareness of civil rights principles, consistent with applicable law. Agencies shall consider opportunities to:

(a) further elevate their respective civil rights offices, including by directing that their most senior civil rights officer report to the agency head;

(b) ensure that their respective civil rights offices are consulted on decisions regarding the design, development, acquisition, and use of artificial intelligence and automated systems;

(c) increase coordination, communication, and engagement with community-based organizations and civil rights organizations;

(d) increase the capacity, including staffing capacity, of their respective civil rights offices, in coordination with OMB;

(e) improve accessibility for people with disabilities and improve language access services to ensure that all communities can engage with agencies' respective civil rights offices, including by fully implementing Executive Order 13166 of August 11, 2000 (Improving Access to Services for Persons with Limited English Proficiency) [42 U.S.C. 2000d–1 note]; and

(f) prevent and remedy discrimination, including by protecting the public from algorithmic discrimination.

Sec. 9. Further Advancing Equitable Data Practices. The Office of Science and Technology Policy (OSTP) National Science and Technology Council Subcommittee on Equitable Data shall, to the extent consistent with applicable law, coordinate the implementation of relevant recommendations of the Interagency Working Group on Equitable Data established in Executive Order 13985. The Director of OSTP shall provide a report on the Subcommittee's progress to the Steering Committee every January and July.

Sec. 10. Definitions. For purposes of this order:

(a) The term "equity" means the consistent and systematic treatment of all individuals in a fair, just, and impartial manner, including individuals who belong to communities that often have been denied such treatment, such as Black, Latino, Indigenous and Native American, Asian American, Native Hawaiian, and Pacific Islander persons and other persons of color; members of religious minorities; women and girls; LGBTQI+ persons; persons with disabilities; persons who live in rural areas; persons who live in United States Territories; persons otherwise adversely affected by persistent poverty or inequality; and individuals who belong to multiple such communities.

(b) The term "underserved communities" refers to those populations as well as geographic communities that have been systematically denied the opportunity to participate fully in aspects of economic, social, and civic life, as defined in Executive Orders 13985 and 14020.

(c) The term "equitable development" refers to a positive development approach that employs processes, policies, and programs that aim to meet the needs of all communities and community members, with a particular focus on underserved communities and populations.

(d) The term "community wealth building" refers to an approach to economic development that strengthens the capacities of underserved communities by ensuring institutions and local economies have ownership models with greater community participation and control. This results in upgrading skills, growing entrepreneurs, increasing incomes, expanding net asset ownership, and fostering social well-being.

(e) The term "equitable data" refers to data that allow for rigorous assessment of the extent to which Government programs and policies yield consistently fair, just, and impartial treatment of all individuals.

(f) The term "algorithmic discrimination" refers to instances when automated systems contribute to unjustified different treatment or impacts disfavoring people based on their actual or perceived race, color, ethnicity, sex (including based on pregnancy, childbirth, and related conditions; gender identity; intersex status; and sexual orientation), religion, age, national origin, limited English proficiency, disability, veteran status, genetic information, or any other classification protected by law.

Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) Agencies not covered by section 2(a) of this order, including independent agencies, are strongly encouraged to comply with the provisions of this order.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Ex. Ord. No. 14094. Modernizing Regulatory Review

Ex. Ord. No. 14094, Apr. 6, 2023, 88 F.R. 21879, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize the regulatory process to advance policies that promote the public interest and address national priorities, it is hereby ordered as follows:

Section 1. Improving the Effectiveness of the Regulatory Review Process. (a) This order supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review) [set out above], and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review) [set out above]. Any provisions of those orders not amended in this order shall remain in effect. This order also further implements the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review) [86 F.R. 7223].

(b) [Amended Ex. Ord. No. 12866, set out above]

Sec. 2. Affirmative Promotion of Inclusive Regulatory Policy and Public Participation. (a) To the extent practicable and consistent with applicable law, regulatory actions should be informed by input from interested or affected communities; State, local, territorial, and Tribal officials and agencies; interested or affected parties in the private sector and other regulated entities; those with expertise in relevant disciplines; and the public as a whole. Opportunities for public participation shall be designed to promote equitable and meaningful participation by a range of interested or affected parties, including underserved communities.

(b) To inform the regulatory planning process, executive departments and agencies (agencies) shall, to the extent practicable and consistent with applicable law:

(i) clarify opportunities for interested persons to petition for the issuance, amendment, or repeal of a rule under 5 U.S.C. 553(e);

(ii) endeavor to respond to such petitions efficiently, in light of agency judgments of available resources and priorities; and

(iii) maintain, subject to available resources, a log of such petitions received, and share with the Administrator of the Office of Information and Regulatory Affairs (OIRA), upon request, information on the status of recently resolved and pending petitions.

(c) To inform the development of regulatory agendas and plans, agencies shall endeavor, as practicable and appropriate, to proactively engage interested or affected parties, including members of underserved communities; consumers; workers and labor organizations; program beneficiaries; businesses and regulated entities; those with expertise in relevant disciplines; and other parties that may be interested or affected. These efforts shall incorporate, to the extent consistent with applicable law, best practices for information accessibility and engagement with interested or affected parties, including, as practicable and appropriate, community-based outreach; outreach to organizations that work with interested or affected parties; use of agency field offices; use of alternative platforms and media for engaging the public; and expansion of public capacity for engaging in the rulemaking process.

(d) The Administrator of OIRA, in consultation with relevant agencies, as appropriate, shall consider guidance or tools to modernize the notice-and-comment process, including through technological changes. These reforms may include guidance or tools to address mass comments, computer-generated comments (such as those generated through artificial intelligence), and falsely attributed comments.

(e) Section 6(b)(4) of Executive Order 12866 establishes a process for persons not employed by the executive branch of the Federal Government to request meetings with OIRA officials regarding the substance of regulatory actions under OIRA review. Public trust in the regulatory process depends on protecting regulatory development from the risk or appearance of disparate and undue influence, including in the OIRA review process. In order to reduce this risk or appearance, the Administrator of OIRA shall, to the extent practicable and consistent with applicable law:

(i) Provide information to facilitate the initiation of meeting requests regarding regulatory actions under OIRA review from potential participants not employed by the executive branch of the Federal Government who have not historically requested such meetings, including those from underserved communities; and

(ii) Implement reforms to improve procedures and policies with respect to OIRA's consideration of meeting requests initiated by persons not employed by the executive branch of the Federal Government regarding the substance of regulatory actions under OIRA review to further the efficiency and effectiveness of such meetings. These reforms may include:

(A) efforts to ensure access for meeting requesters who have not historically requested such meetings;

(B) discouraging meeting requests that are duplicative of earlier meetings with OIRA regarding the same regulatory action by the same meeting requesters;

(C) consolidation of meetings by requester, subject matter, or any other consistently applied factors deemed appropriate to improve efficiency and effectiveness; and

(D) disclosure of data in an open, machine-readable, and accessible format that includes the dates and names of individuals involved in all substantive meetings and the subject matter discussed during such meetings, as required by section 6(b)(4)(C)(iii) of Executive Order 12866, so as to better facilitate transparency and analysis.

Sec. 3. Improving Regulatory Analysis. (a) Regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

(b) Within 1 year of the date of this order [Apr. 6, 2023], the Director of the Office of Management and Budget, through the Administrator of OIRA and in consultation with the Chair of the Council of Economic Advisers and representatives of relevant agencies, shall issue revisions to the Office of Management and Budget's Circular A–4 of September 17, 2003 (Regulatory Analysis), in order to implement the policy set forth in subsection (a) of this section.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Ex. Ord. No. 14123. White House Council on Supply Chain Resilience

Ex. Ord. No. 14123, June 14, 2024, 89 F.R. 51949, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. As described in Executive Order 14017 of February 24, 2021 (America's Supply Chains) [set out above], it is the policy of my Administration to strengthen the enduring resilience of America's supply chains. The United States needs resilient, diverse, and secure supply chains to ensure our economic prosperity, public health, and national security. Pandemics and other biological threats, cyber attacks, climate stressors and extreme weather events, transnational corruption, terrorist attacks, geopolitical disputes, unfair economic competition, and other disruptive conditions can reduce critical infrastructure, manufacturing, and processing capacity and the availability of critical goods, materials, and services. Building resilient American supply chains will necessitate enhancing domestic manufacturing capacity, supporting America's competitive edge in research and development, encouraging innovation, reinforcing critical infrastructure, and creating well-paying jobs. Building resilient American supply chains will also provide a foundation to strengthen prosperity, advance the fight against climate change, enhance national emergency preparedness, and encourage economic growth across the Nation.

More resilient supply chains are secure and diverse. Characteristics of resilient supply chains include greater domestic production; a diverse and agile supplier base; built-in redundancies; a reliable transportation system; secure critical infrastructure; adequate stockpiles; safe and secure data networks; reliable food systems; and a world-class, globally competitive American manufacturing base and workforce. Close cooperation on building global supply chain resilience with allies and partners who share our values will foster collective economic and national security, encourage innovation, and strengthen the capacity to respond to and recover from international disasters and emergencies.

Sec. 2. Definitions. For purposes of this order:

(a) "Agency" has the meaning given to that term in Executive Order 14017.

(b) "Critical goods and materials" has the meaning given to that term in Executive Order 14017.

(c) "Other essential goods, materials, and services" means goods, materials, and services that are essential to national and economic security, emergency preparedness, or to advance the policy set forth in section 1 of this order, but not included within the definition of "critical goods and materials."

(d) "Critical infrastructure" means assets, systems, and networks, whether physical or virtual, that are so vital to the United States that their incapacitation or destruction would have a debilitating effect on national security, economic security, national public health or safety, or any combination thereof.

Sec. 3. Coordination. (a) This order supplements and reaffirms the principles governing America's supply chains established in Executive Order 14017. Any provisions of Executive Order 14017 not amended in this order shall remain in effect.

(b) Notwithstanding section 2 of Executive Order 14017, the Assistant to the President for National Security Affairs (APNSA) and the Assistant to the President for Economic Policy (APEP) shall coordinate, as appropriate, the executive branch actions necessary to implement this order through the White House Council on Supply Chain Resilience (Council) established on November 27, 2023, and further described in section 4 of this order. In coordinating the work of the Council on issues related to national security, and on other issues as they deem appropriate, the APNSA and the APEP shall work with the Council in conformance with the interagency process identified in National Security Memorandum 2 of February 4, 2021 (Renewing the National Security Council System).

Sec. 4. White House Council on Supply Chain Resilience. (a) The White House Council on Supply Chain Resilience residing within the Executive Office of the President is led by the APNSA and the APEP, who serve as Co-Chairs of the Council. In addition to the Co-Chairs, the membership of the Council consists of the following members:

(i) the Secretary of State;

(ii) the Secretary of the Treasury;

(iii) the Secretary of Defense;

(iv) the Attorney General;

(v) the Secretary of the Interior;

(vi) the Secretary of Agriculture;

(vii) the Secretary of Commerce;

(viii) the Secretary of Labor;

(ix) the Secretary of Health and Human Services;

(x) the Secretary of Housing and Urban Development;

(xi) the Secretary of Transportation;

(xii) the Secretary of Energy;

(xiii) the Secretary of Veterans Affairs;

(xiv) the Secretary of Homeland Security;

(xv) the Administrator of the Environmental Protection Agency;

(xvi) the Director of the Office of Management and Budget;

(xvii) the Director of National Intelligence;

(xviii) the United States Trade Representative;

(xix) the Chair of the Council of Economic Advisers;

(xx) the Administrator of the Small Business Administration;

(xxi) the Director of the Office of Science and Technology Policy;

(xxii) the Assistant to the President and Homeland Security Advisor;

(xxiii) the Assistant to the President and National Climate Advisor;

(xxiv) the National Cyber Director;

(xxv) the Senior Advisor to the President for International Climate Policy;

(xxvi) the Chair of the Council on Environmental Quality;

(xxvii) the Administrator of the National Aeronautics and Space Administration;

(xxviii) the Administrator of the United States Agency for International Development;

(xxix) the Director of the Office of Pandemic Preparedness and Response Policy;

(xxx) the President of the Export-Import Bank of the United States; and

(xxxi) the heads of such other agencies and offices as the Co-Chairs may from time to time invite to participate.

(b) The Co-Chairs shall invite participation of the Chairman of the Federal Maritime Commission and the Chairman of the Surface Transportation Board to the extent consistent with their statutory authorities and obligations.

(c) The Council shall coordinate and promote Federal Government efforts to strengthen long-term supply chain resilience and American industrial competitiveness; identify and provide a coordinated response to address supply chain insecurities, threats, and vulnerabilities, including excessive geographic or supplier concentration; and facilitate collaboration by agencies with allies and partners to foster greater global supply chain resilience. To serve these purposes, the Council shall:

(i) recommend to agencies procedures and best practices for agency cooperation and coordination on data collection and analysis, especially to the extent that agency missions may overlap or intersect, and help facilitate such cooperation and coordination;

(ii) identify budgetary and any other resources needed to support supply chain resilience, including resources to build strong and enduring agency capabilities to identify, address, mitigate, and prevent supply chain risks, shocks, and disruptions;

(iii) recommend administrative actions that would further the policy objectives set forth in section 1 of Executive Order 14017 and in section 1 of this order;

(iv) coordinate with other interagency bodies managing policy areas that affect the integrity of supply chains; and

(v) coordinate with agencies, to the extent appropriate and consistent with applicable law, to ensure that agency operations related to building critical supply chain resilience are conducted in a manner that promotes a fair, open, and competitive marketplace and empowers workers to advocate for their rights and quality jobs.

(d) The Council shall, as appropriate and consistent with applicable law, consult outside stakeholders—such as private industry; academic and educational institutions; non-governmental organizations; labor unions; and State, local, Tribal, and territorial governments—on an individual basis to help accomplish the policy objectives identified in section 1 of this order and in section 1 of Executive Order 14017. Any member of the Council that receives a recommendation from a Federal Advisory Committee, as that term is defined in 5 U.S.C. 1001(2), regarding industrial resilience and competitiveness or supply chain risks, resilience, diversity, or sustainability shall, as appropriate and consistent with applicable law, share that recommendation with the Council.

(e) The Council shall conduct a quadrennial supply chain review of industries critical to national or economic security. The review shall address the processes in place to monitor supply chains and the timeliness of the associated data. At the conclusion of each review, the Council shall submit a report to the President, with the first report submitted no later than December 31, 2024, and subsequent reports submitted every 4 years thereafter. Where practicable and as appropriate, the report shall make recommendations concerning:

(i) Federal incentives and any potential amendments to Federal procurement regulations that may be necessary to attract and retain private sector investments in the supply chains for critical goods and materials and other essential goods, materials, and services as defined in section 2 of this order, including any new programs that could encourage both domestic and foreign investment in the supply chains for critical goods and materials and other essential goods, materials, and services;

(ii) a strategic plan that includes diplomatic, economic, security, international development, trade, and other policy actions to guide United States engagement with allies and partners, including through regional economic frameworks or partnerships supported by the United States, to strengthen global supply chain resilience in critical sectors;

(iii) actions for the insulation of Federal supply chain analyses and actions from conflicts of interest, corruption, or the appearance of impropriety to ensure continued integrity and public confidence in supply chain analyses and actions;

(iv) potential legislative changes that would promote the policy objectives set forth in section 1 of Executive Order 14017 and in section 1 of this order;

(v) reforms to domestic and international trade rules and agreements that could be pursued to support supply chain resilience, security, diversity, sustainability, and strength;

(vi) education and workforce reforms needed to strengthen the domestic industrial base for critical goods and materials and other essential goods, materials, and services; and

(vii) steps to ensure that the Federal Government's supply chain policies support small businesses and family-owned small- and mid-sized farming operations, prevent monopolization, strengthen critical infrastructure, empower workers to advocate for their rights and quality jobs, consider climate and other health and environmental effects, encourage economic growth in underserved communities and economically distressed areas, and promote the geographic dispersal of economic activity across all regions of the United States.

(f) Subsection (e) of this section supersedes section 5(c) of Executive Order 14017.

(g) Each member of the Council shall designate, within 30 days of the date of this order [June 14, 2024], a senior official within their respective agency or office who shall coordinate with the Council and who shall be responsible for overseeing the agency's or office's efforts to address supply chain resilience. The Co-Chairs may designate Council subgroups consisting of Council members or their designees, as appropriate.

(h) The Council shall meet on a semiannual basis unless the Co-Chairs determine that a meeting is unnecessary or that additional meetings are needed.

(i) Each agency or office shall bear its own expenses for participating in the Council.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Regulatory Reform—Waiver of Penalties and Reduction of Reports

Memorandum of President of the United States, Apr. 21, 1995, 60 F.R. 20621, provided:

Memorandum for

The Secretary of State

The Secretary of the Treasury

The Secretary of Defense

The Attorney General

The Secretary of the Interior

The Secretary of Agriculture

The Secretary of Commerce

The Secretary of Labor

The Secretary of Health and Human Services

The Secretary of Housing and Urban Development

The Secretary of Transportation

The Secretary of Energy

The Secretary of Education

The Secretary of Veterans Affairs

The Administrator, Environmental Protection Agency

The Administrator, Small Business Administration

The Secretary of the Army

The Secretary of the Navy

The Secretary of the Air Force

The Director, Federal Emergency Management Agency

The Administrator, National Aeronautics and Space Administration

The Director, National Science Foundation

The Acting Archivist of the United States

The Administrator of General Services

The Chair, Railroad Retirement Board

The Chairperson, Architectural and Transportation Barriers Compliance Board

The Executive Director, Pension Benefit Guaranty Corporation

On March 16, I announced that the Administration would implement new policies to give compliance officials more flexibility in dealing with small business and to cut back on paperwork. These Governmentwide policies, as well as the specific agency actions I announced, are part of this Administration's continuing commitment to sensible regulatory reform. With your help and cooperation, we hope to move the Government toward a more flexible, effective, and user friendly approach to regulation.

A. Actions: This memorandum directs the designated department and agency heads to implement the policies set forth below.

1. Authority to Waive Penalties. (a) To the extent permitted by law, each agency shall use its discretion to modify the penalties for small businesses in the following situations. Agencies shall exercise their enforcement discretion to waive the imposition of all or a portion of a penalty when the violation is corrected within a time period appropriate to the violation in question. For those violations that may take longer to correct than the period set by the agency, the agency shall use its enforcement discretion to waive up to 100 percent of the financial penalties if the amounts waived are used to bring the entity into compliance. The provisions in paragraph 1(a) of this memorandum shall apply only where there has been a good faith effort to comply with applicable regulations and the violation does not involve criminal wrongdoing or significant threat to health, safety, or the environment.

(b) Each agency shall, by June 15, 1995, submit a plan to the Director of the Office of Management and Budget ("Director") describing the actions it will take to implement the policies in paragraph 1(a) of this memorandum. The plan shall provide that the agency will implement the policies described in paragraph 1(a) of this memorandum on or before July 14, 1995. Plans should include information on how notification will be given to frontline workers and small businesses.

2. Cutting Frequency of Reports. (a) Each agency shall reduce by one-half the frequency of the regularly scheduled reports that the public is required, by rule or by policy, to provide to the Government (from quarterly to semiannually, from semiannually to annually, etc.), unless the department or agency head determines that such action is not legally permissible; would not adequately protect health, safety, or the environment; would be inconsistent with achieving regulatory flexibility or reducing regulatory burdens; or would impede the effective administration of the agency's program. The duty to make such determinations shall be nondelegable.

(b) Each agency shall, by June 15, 1995, submit a plan to the Director describing the actions it will take to implement the policies in paragraph 2(a), including a copy of any determination that certain reports are excluded.

B. Application and Scope: 1. The Director may issue further guidance as necessary to carry out the purposes of this memorandum.

2. This memorandum does not apply to matters related to law enforcement, national security, or foreign affairs, the importation or exportation of prohibited or restricted items, Government taxes, duties, fees, revenues, or receipts; nor does it apply to agencies (or components thereof) whose principal purpose is the collection, analysis, and dissemination of statistical information.

3. This memorandum is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or its employees.

4. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

William J. Clinton.      

[References to the Director of the Federal Emergency Management Agency to be considered to refer and apply to the Administrator of the Federal Emergency Management Agency, see section 612(c) of Pub. L. 109–295, set out as a note under section 313 of Title 6, Domestic Security.]

Plain Language in Government Writing

Memorandum of President of the United States, June 1, 1998, 63 F.R. 31885, provided:

Memorandum for the Heads of Executive Departments and Agencies

The Vice President and I have made reinventing the Federal Government a top priority of my Administration. We are determined to make the Government more responsive, accessible, and understandable in its communications with the public.

The Federal Government's writing must be in plain language. By using plain language, we send a clear message about what the Government is doing, what it requires, and what services it offers. Plain language saves the Government and the private sector time, effort, and money.

Plain language requirements vary from one document to another, depending on the intended audience. Plain language documents have logical organization, easy-to-read design features, and use:

• common, everyday words, except for necessary technical terms;

• "you" and other pronouns;

• the active voice; and

• short sentences.

To ensure the use of plain language, I direct you to do the following:

• By October 1, 1998, use plain language in all new documents, other than regulations, that explain how to obtain a benefit or service or how to comply with a requirement you administer or enforce. For example, these documents may include letters, forms, notices, and instructions. By January 1, 2002, all such documents created prior to October 1, 1998, must also be in plain language.

• By January 1, 1999, use plain language in all proposed and final rulemaking documents published in the Federal Register, unless you proposed the rule before that date. You should consider rewriting existing regulations in plain language when you have the opportunity and resources to do so.

The National Partnership for Reinventing Government will issue guidance to help you comply with these directives and to explain more fully the elements of plain language. You should also use customer feedback and common sense to guide your plain language efforts.

I ask the independent agencies to comply with these directives.

This memorandum does not confer any right or benefit enforceable by law against the United States or its representatives. The Director of the Office of Management and Budget will publish this memorandum in the Federal Register.

William J. Clinton.      

Preemption

Memorandum of President of the United States, May 20, 2009, 74 F.R. 24693, provided:

Memorandum for the Heads of Executive Departments and Agencies

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Regulatory Compliance

Memorandum of President of the United States, Jan. 18, 2011, 76 F.R. 3825, provided:

Memorandum for the Heads of Executive Departments and Agencies

My Administration is committed to enhancing effectiveness and efficiency in Government. Pursuant to the Memorandum on Transparency and Open Government, issued on January 21, 2009, executive departments and agencies (agencies) have been working steadily to promote accountability, encourage collaboration, and provide information to Americans about their Government's activities.

To that end, much progress has been made toward strengthening our democracy and improving how Government operates. In the regulatory area, several agencies, such as the Department of Labor and the Environmental Protection Agency, have begun to post online (at ogesdw.dol.gov and www.epa-echo.gov), and to make readily accessible to the public, information concerning their regulatory compliance and enforcement activities, such as information with respect to administrative inspections, examinations, reviews, warnings, citations, and revocations (but excluding law enforcement or otherwise sensitive information about ongoing enforcement actions).

Greater disclosure of regulatory compliance information fosters fair and consistent enforcement of important regulatory obligations. Such disclosure is a critical step in encouraging the public to hold the Government and regulated entities accountable. Sound regulatory enforcement promotes the welfare of Americans in many ways, by increasing public safety, improving working conditions, and protecting the air we breathe and the water we drink. Consistent regulatory enforcement also levels the playing field among regulated entities, ensuring that those that fail to comply with the law do not have an unfair advantage over their law-abiding competitors. Greater agency disclosure of compliance and enforcement data will provide Americans with information they need to make informed decisions. Such disclosure can lead the Government to hold itself more accountable, encouraging agencies to identify and address enforcement gaps.

Accordingly, I direct the following:

First, agencies with broad regulatory compliance and administrative enforcement responsibilities, within 120 days of this memorandum, to the extent feasible and permitted by law, shall develop plans to make public information concerning their regulatory compliance and enforcement activities accessible, downloadable, and searchable online. In so doing, agencies should prioritize making accessible information that is most useful to the general public and should consider the use of new technologies to allow the public to have access to real-time data. The independent agencies are encouraged to comply with this directive.

Second, the Federal Chief Information Officer and the Chief Technology Officer shall work with appropriate counterparts in each agency to make such data available online in searchable form, including on centralized platforms such as data.gov, in a manner that facilitates easy access, encourages cross-agency comparisons, and engages the public in new and creative ways of using the information.

Third, the Federal Chief Information Officer and the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB) and their counterparts in each agency, shall work to explore how best to generate and share enforcement and compliance information across the Government, consistent with law. Such data sharing can assist with agencies' risk-based approaches to enforcement: A lack of compliance in one area by a regulated entity may indicate a need for examination and closer attention by another agency. Efforts to share data across agencies, where appropriate and permitted by law, may help to promote flexible and coordinated enforcement regimes.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

The Director of OMB is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Regulatory Flexibility, Small Business, and Job Creation

Memorandum of President of the United States, Jan. 18, 2011, 76 F.R. 3827, provided:

Memorandum for the Heads of Executive Departments and Agencies

Small businesses play an essential role in the American economy; they help to fuel productivity, economic growth, and job creation. More than half of all Americans working in the private sector either are employed by a small business or own one. During a recent 15-year period, small businesses created more than 60 percent of all new jobs in the Nation.

Although small businesses and new companies provide the foundations for economic growth and job creation, they have faced severe challenges as a result of the recession. One consequence has been the loss of significant numbers of jobs.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, establishes a deep national commitment to achieving statutory goals without imposing unnecessary burdens on the public. The RFA emphasizes the importance of recognizing "differences in the scale and resources of regulated entities" and of considering "alternative regulatory approaches . . . which minimize the significant economic impact of rules on small businesses, small organizations, and small governmental jurisdictions." 5 U.S.C. 601 note.

To promote its central goals, the RFA imposes a series of requirements designed to ensure that agencies produce regulatory flexibility analyses that give careful consideration to the effects of their regulations on small businesses and explore significant alternatives in order to minimize any significant economic impact on small businesses. Among other things, the RFA requires that when an agency proposing a rule with such impact is required to provide notice of the proposed rule, it must also produce an initial regulatory flexibility analysis that includes discussion of significant alternatives. Significant alternatives include the use of performance rather than design standards; simplification of compliance and reporting requirements for small businesses; establishment of different timetables that take into account the resources of small businesses; and exemption from coverage for small businesses.

Consistent with the goal of open government, the RFA also encourages public participation in and transparency about the rulemaking process. Among other things, the statute requires agencies proposing rules with a significant economic impact on small businesses to provide an opportunity for public comment on any required initial regulatory flexibility analysis, and generally requires agencies promulgating final rules with such significant economic impact to respond, in a final regulatory flexibility analysis, to comments filed by the Chief Counsel for Advocacy of the Small Business Administration.

My Administration is firmly committed to eliminating excessive and unjustified burdens on small businesses, and to ensuring that regulations are designed with careful consideration of their effects, including their cumulative effects, on small businesses. Executive Order 12866 of September 30, 1993, as amended, states, "Each agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations."

In the current economic environment, it is especially important for agencies to design regulations in a cost-effective manner consistent with the goals of promoting economic growth, innovation, competitiveness, and job creation.

Accordingly, I hereby direct executive departments and agencies and request independent agencies, when initiating rulemaking that will have a significant economic impact on a substantial number of small entities, to give serious consideration to whether and how it is appropriate, consistent with law and regulatory objectives, to reduce regulatory burdens on small businesses, through increased flexibility. As the RFA recognizes, such flexibility may take many forms, including:

• extended compliance dates that take into account the resources available to small entities;

• performance standards rather than design standards;

• simplification of reporting and compliance requirements (as, for example, through streamlined forms and electronic filing options);

• different requirements for large and small firms; and

• partial or total exemptions.

I further direct that whenever an executive agency chooses, for reasons other than legal limitations, not to provide such flexibility in a proposed or final rule that is likely to have a significant economic impact on a substantial number of small entities, it should explicitly justify its decision not to do so in the explanation that accompanies that proposed or final rule.

Adherence to these requirements is designed to ensure that regulatory actions do not place unjustified economic burdens on small business owners and other small entities. If regulations are preceded by careful analysis, and subjected to public comment, they are less likely to be based on intuition and guesswork and more likely to be justified in light of a clear understanding of the likely consequences of alternative courses of action. With that understanding, agencies will be in a better position to protect the public while avoiding excessive costs and paperwork.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures

Memorandum of President of the United States, May 17, 2013, 78 F.R. 30733, provided:

Memorandum for the Heads of Executive Departments and Agencies

Reliable, safe, and resilient infrastructure is the backbone of an economy built to last. Investing in our Nation's infrastructure serves as an engine for job creation and economic growth, while bringing immediate and long-term economic benefits to communities across the country. The quality of our infrastructure is critical to maintaining our Nation's competitive edge in a global economy and to securing our path to energy independence. In taking steps to improve our infrastructure, we must remember that the protection and continued enjoyment of our Nation's environmental, historical, and cultural resources remain an equally important driver of economic opportunity, resiliency, and quality of life.

Through the implementation of Executive Order 13604 of March 22, 2012 (Improving Performance of Federal Permitting and Review of Infrastructure Projects), executive departments and agencies (agencies) have achieved better outcomes for communities and the environment and realized substantial time savings in review and permitting by prioritizing the deployment of resources to specific sectors and projects, and by implementing best-management practices.

These best-management practices include: integrating project reviews among agencies with permitting responsibilities; ensuring early coordination with other Federal agencies, as well as with State, local, and tribal governments; strategically engaging with, and conducting outreach to, stakeholders; employing project-planning processes and individual project designs that consider local and regional ecological planning goals; utilizing landscape- and watershed-level mitigation practices; promoting the sharing of scientific and environmental data in open-data formats to minimize redundancy, facilitate informed project planning, and identify data gaps early in the review and permitting process; promoting performance-based permitting and regulatory approaches; expanding the use of general permits where appropriate; improving transparency and accountability through the electronic tracking of review and permitting schedules; and applying best environmental and cultural practices as set forth in existing statutes and policies.

Based on the process and policy improvements that are already being implemented across the Federal Government, we can continue to modernize the Federal Government's review and permitting of infrastructure projects and reduce aggregate timelines for major infrastructure projects by half, while also improving outcomes for communities and the environment by institutionalizing these best-management practices, and by making additional improvements to enhance efficiencies in the application of regulations and processes involving multiple agencies—including expanding the use of web-based techniques for sharing project-related information, facilitating targeted and relevant environmental reviews, and providing meaningful opportunities for public input through stakeholder engagement.

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to advance the goal of cutting aggregate timelines for major infrastructure projects in half, while also improving outcomes for communities and the environment, I hereby direct the following:

Section 1. Modernization of Review and Permitting Regulations, Policies, and Procedures. (a) The Steering Committee on Federal Infrastructure Permitting and Review Process Improvement (Steering Committee), established by Executive Order 13604, shall work with the Chief Performance Officer (CPO), in coordination with the Office of Information and Regulatory Affairs (OIRA) and the Council on Environmental Quality (CEQ), to modernize Federal infrastructure review and permitting regulations, policies, and procedures to significantly reduce the aggregate time required by the Federal Government to make decisions in the review and permitting of infrastructure projects, while improving environmental and community outcomes.

This modernization shall build upon and incorporate reforms identified by agencies pursuant to Executive Order 13604 and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review).

(b) Through an interagency process, coordinated by the CPO and working closely with CEQ and OIRA, the Steering Committee shall conduct the following modernization efforts:

(i) Within 60 days of the date of this memorandum, the Steering Committee shall identify and prioritize opportunities to modernize key regulations, policies, and procedures—both agency-specific and those involving multiple agencies—to reduce the aggregate project review and permitting time, while improving environmental and community outcomes.

(ii) Within 120 days of the date of this memorandum, the Steering Committee shall prepare a plan for a comprehensive modernization of Federal review and permitting for infrastructure projects based on the analysis required by subsection (b)(i) of this section that outlines specific steps for re-engineering both the intra- and inter-agency review and approval processes based on experience implementing Executive Order 13604. The plan shall identify proposed actions and associated timelines to:

(1) institutionalize or expand best practices or process improvements that agencies are already implementing to improve the efficiency of reviews, while improving outcomes for communities and the environment;

(2) revise key review and permitting regulations, policies, and procedures (both agency-specific and Government-wide);

(3) identify high-performance attributes of infrastructure projects that demonstrate how the projects seek to advance existing statutory and policy objectives and how they lead to improved outcomes for communities and the environment, thereby facilitating a faster and more efficient review and permitting process;

(4) create process efficiencies, including additional use of concurrent and integrated reviews;

(5) identify opportunities to use existing share-in-cost authorities and other non-appropriated funding sources to support early coordination and project review;

(6) effectively engage the public and interested stakeholders;

(7) expand coordination with State, local, and tribal governments;

(8) strategically expand the use of information technology (IT) tools and identify priority areas for IT investment to replace paperwork processes, enhance effective project siting decisions, enhance interagency collaboration, and improve the monitoring of project impacts and mitigation commitments; and

(9) identify improvements to mitigation policies to provide project developers with added predictability, facilitate landscape-scale mitigation based on conservation plans and regional environmental assessments, facilitate interagency mitigation plans where appropriate, ensure accountability and the long-term effectiveness of mitigation activities, and utilize innovative mechanisms where appropriate.

The modernization plan prepared pursuant to this section shall take into account funding and resource constraints and shall prioritize implementation accordingly.

(c) Infrastructure sectors covered by the modernization effort include: surface transportation, such as roadways, bridges, railroads, and transit; aviation; ports and related infrastructure, including navigational channels; water resources projects; renewable energy generation; conventional energy production in high-demand areas; electricity transmission; broadband; pipelines; storm water infrastructure; and other sectors as determined by the Steering Committee.

(d) The following agencies or offices and their relevant sub-divisions shall engage in the modernization effort:

(i) the Department of Defense;

(ii) the Department of the Interior;

(iii) the Department of Agriculture;

(iv) the Department of Commerce;

(v) the Department of Transportation;

(vi) the Department of Energy;

(vii) the Department of Homeland Security;

(viii) the Environmental Protection Agency;

(ix) the Advisory Council on Historic Preservation;

(x) the Department of the Army;

(xi) the Council on Environmental Quality; and

(xii) such other agencies or offices as the CPO may invite to participate.

Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals, or the regulatory review process.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum shall be implemented consistent with Executive Order 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), Executive Order 13175 of November 6, 2000 (Consultation and Coordination with Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation).

(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(e) The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Expanding Federal Support for Predevelopment Activities for Nonfederal Domestic Infrastructure Assets

Memorandum of President of the United States, Jan. 16, 2015, 80 F.R. 3455, provided:

Memorandum for the Heads of Executive Departments and Agencies

The United States is significantly underinvesting in both the maintenance of existing public infrastructure and the development of new infrastructure projects. While there is no replacement for adequate public funding, innovative financing options and increased collaboration between the private and public sectors can help to increase overall investment in infrastructure.

However, a major challenge for innovative infrastructure projects, whether using emerging technologies or alternative financing, is the lack of funding for the phases of infrastructure project development that precede actual construction. Infrastructure projects require upfront costs, commonly known as "predevelopment" costs, for activities such as project and system planning, economic impact analyses, preliminary engineering assessments, and environmental review. Although only accounting for a small percentage of total costs, predevelopment activities have considerable influence on which projects will move forward, where and how they will be built, who will fund them, and who will benefit from them. Yet, in light of factors like fiscal constraints, the extent of overall needs, and risk aversion, State, local, and tribal governments tend to focus scarce resources on constructing and developing conventional projects and addressing their most critical infrastructure needs, thereby underinvesting in predevelopment.

Greater attention to the predevelopment phase could yield a range of benefits—for example, providing the opportunity to develop longer-term, more innovative, and more complex infrastructure projects and facilitating assessment of a range of financing approaches, including public-private partnerships. Additional investment in predevelopment costs also may enable State, local, and tribal governments to utilize innovations in infrastructure design and emerging technologies, reduce long-term costs to infrastructure project users, and provide other benefits, such as improved environmental performance and enhanced resilience to climate change.

The Federal Government can meaningfully expand opportunities for public-private collaboration, encourage more transformational projects, and improve project outcomes by encouraging Federal investment in robust predevelopment activities and providing other forms of support, such as technical assistance, to communities during the predevelopment phase.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Policy. It shall be the policy of the Federal Government for all executive departments and agencies (agencies) that provide grants, technical assistance, and other forms of support for nonfederal domestic infrastructure assets, or regulate the development of these infrastructure assets, to actively support nonfederal predevelopment activities with all available tools, including grants, technical assistance, and regulatory changes, to the extent permitted by law and consistent with agency mission. Agencies shall seek to make predevelopment funding and support available, as permitted by law and consistent with agency mission and where it is in the public interest and does not supplant existing public investment, to encourage opportunities for private sector investment. Agencies shall pay particular attention to predevelopment activities in sectors where State, local, and tribal governments have traditionally played a significant role, such as surface transportation, drinking water, sewage and storm water management systems, landside ports, and social infrastructure like schools and community facilities.

Sec. 2. Definitions. For the purposes of this memorandum:

(a) "Predevelopment activities" means activities that provide decisionmakers with the opportunity to identify and assess potential infrastructure projects and modifications to existing infrastructure projects, and to advance those projects from the conceptual phase to actual construction. Predevelopment activities include:

(i) project planning, feasibility studies, economic assessments and cost-benefit analyses, and public benefit studies and value-for-money analyses;

(ii) design and engineering;

(iii) financial planning (including the identification of funding and financing options);

(iv) permitting, environmental review, and regulatory processes;

(v) assessment of the impacts of potential projects on the area, including the effect on communities, the environment, the workforce, and wages and benefits, as well as assessment of infrastructure vulnerability and resilience to climate change and other risks; and

(vi) public outreach and community engagement.

(b) "Predevelopment funding" means funding for predevelopment activities and associated costs, such as flexible staff, external advisors, convening potential investment partners, and associated legal costs directly related to predevelopment activities.

Sec. 3. Federal Action to Support Predevelopment Activities. Agencies shall take the following actions to support predevelopment activities:

(a) the Department of Commerce, through the Economic Development Administration's Public Works grants and Economic Adjustment Assistance grants, and consistent with the programs' mission and goals, shall take steps to increase assistance for the predevelopment phase of infrastructure projects;

(b) the Department of Transportation shall develop guidance to clarify where predevelopment activities are eligible for funding through its programs. To further encourage early collaboration in the project development process, the Department of Transportation shall also clarify options for providing early feedback into environmental review processes;

(c) the Department of Homeland Security shall clarify for grantees where predevelopment funding is available through the Hazard Mitigation Grant Program;

(d) the Department of Housing and Urban Development shall clarify for grantees how the Community Development Block Grant program and other Federal funding sources can be used for predevelopment activities;

(e) the Department of Agriculture shall develop guidance to clarify where predevelopment activities are eligible for funding through its programs, including grants for water and waste projects pursuant to 7 CFR 1780.1 et seq., the Special Evaluation Assistance for Rural Communities and Households Program, the Community Facilities Grant program, and the Watershed and Flood Prevention Operations Program. To encourage innovative predevelopment work, the Department of Agriculture shall also train Water and Environmental Programs field staff on predevelopment best practices and prioritize predevelopment in the Department of Agriculture's project development process; and

(f) the other members of the Working Group established in section 3 of my memorandum of July 17, 2014 (Expanding Public-Private Collaboration on Infrastructure Development and Financing), shall take such steps as appropriate to clarify program eligibilities related to predevelopment activities for nonfederal domestic infrastructure assets.

Sec. 4. Implementation, Public Education, and Best Practices. The Departments of Agriculture, Commerce, Labor, Housing and Urban Development, Transportation, Energy, and Homeland Security, and the Environmental Protection Agency shall develop plans for implementing the requirements of this memorandum, providing technical assistance to nonfederal actors engaged in predevelopment activities, and educating grantees and the public on the benefits of predevelopment and the Federal resources available for these activities. These agencies shall also work together to develop a guide for nonfederal actors undertaking nonfederal predevelopment activities that includes best practices on how to evaluate and compare traditional and alternative financing strategies. No later than 60 days after the date of this memorandum, these agencies shall provide these plans and the best practice guide to the Director of the National Economic Council. Subsequently, these agencies shall provide regular updates to the Director of the National Economic Council on their progress in increasing support for predevelopment activities.

Sec. 5. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(c) The Secretary of Transportation is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

§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,¹ and

(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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1166.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

¹ So in original. The comma probably should be a semicolon.

§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;

(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.

(d)(1) For a covered agency, as defined in section 609(d)(2), each initial regulatory flexibility analysis shall include a description of—

(A) any projected increase in the cost of credit for small entities;

(B) any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any increase in the cost of credit for small entities; and

(C) advice and recommendations of representatives of small entities relating to issues described in subparagraphs (A) and (B) and subsection (b).

(2) A covered agency, as defined in section 609(d)(2), shall, for purposes of complying with paragraph (1)(C)—

(A) identify representatives of small entities in consultation with the Chief Counsel for Advocacy of the Small Business Administration; and

(B) collect advice and recommendations from the representatives identified under subparagraph (A) relating to issues described in subparagraphs (A) and (B) of paragraph (1) and subsection (b).

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1166; amended Pub. L. 104–121, title II, §241(a)(1), Mar. 29, 1996, 110 Stat. 864; Pub. L. 111–203, title X, §1100G(b), July 21, 2010, 124 Stat. 2112.)

Editorial Notes

Amendments

2010—Subsec. (d). Pub. L. 111–203 added subsec. (d).

1996—Subsec. (a). Pub. L. 104–121, §241(a)(1)(B), inserted at end "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."

Pub. L. 104–121, §241(a)(1)(A), which directed the insertion of ", or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States" after "proposed rule" was executed by making the insertion where those words appeared in first sentence to reflect the probable intent of Congress.

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective on the designated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of this title.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective Date

Section effective Jan. 1, 1981, except that the requirements of this section applicable only to rules for which a notice of proposed rulemaking was issued on or after Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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 statement of the need for, and objectives of, the rule;

(2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement 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) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

(4) 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;

(5) 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;

(6) ¹ 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; and

(6) ¹ for a covered agency, as defined in section 609(d)(2), a description of the steps the agency has taken to minimize any additional cost of credit for small entities.

(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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1167; amended Pub. L. 104–121, title II, §241(b), Mar. 29, 1996, 110 Stat. 864; Pub. L. 111–203, title X, §1100G(c), July 21, 2010, 124 Stat. 2113; Pub. L. 111–240, title I, §1601, Sept. 27, 2010, 124 Stat. 2551.)

Editorial Notes

Amendments

2010—Subsec. (a)(1). Pub. L. 111–240, §1601(1), struck out "succinct" before "statement".

Subsec. (a)(2). Pub. L. 111–240, §1601(2), substituted "statement" for "summary" before "of the significant issues" and "of the assessment".

Subsec. (a)(3), (4). Pub. L. 111–240, §1601(3), (4), added par. (3) and redesignated former par. (3) as (4). Former par. (4) redesignated (5).

Subsec. (a)(5). Pub. L. 111–240, §1601(3), redesignated par. (4) as (5). Former par. (5), relating to description of steps taken to minimize the significant economic impact on small entities, redesignated (6).

Pub. L. 111–203, §1100G(c)(1), which directed amendment of par. (4) by striking "and" at the end, was executed to par. (5) to reflect the probable intent of Congress and the intervening redesignation of par. (4) as (5) by Pub. L. 111–240, §1601(3). See above.

Subsec. (a)(6). Pub. L. 111–240, §1601(3), redesignated par. (5), relating to description of steps taken to minimize the significant economic impact on small entities, as (6).

Pub. L. 111–203, §1100G(c)(3), added par. (6) relating to description of steps taken to minimize any additional cost of credit for small entities.

Pub. L. 111–203, §1100G(c)(2), which directed amendment of par. (5) by substituting "; and" for period at end, was executed to par. (6), relating to description of steps taken to minimize the significant economic impact on small entities, to reflect the probable intent of Congress and the intervening redesignation of par. (5) as (6) by Pub. L. 111–240, §1601(3). See above.

1996—Subsec. (a). Pub. L. 104–121, §241(b)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "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, 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 the objectives of, the rule;

"(2) a summary of the 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; and

"(3) a description of each of the significant alternatives to the rule consistent with the stated objectives of applicable statutes and designed to minimize any significant economic impact of the rule on small entities which was considered by the agency, and a statement of the reasons why each one of such alternatives was rejected."

Subsec. (b). Pub. L. 104–121, §241(b)(2), substituted "such analysis or a summary thereof." for "at the time of publication of the final rule under section 553 of this title a statement describing how the public may obtain such copies."

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective on the designated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of this title.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective Date

Section effective Jan. 1, 1981, except that the requirements of this section applicable only to rules for which a notice of proposed rulemaking was issued on or after Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

¹ So in original. Two pars. (6) have been enacted.

§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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1167; amended Pub. L. 104–121, title II, §243(a), Mar. 29, 1996, 110 Stat. 866.)

Editorial Notes

Amendments

1996—Subsec. (b). Pub. L. 104–121 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "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 succinct statement explaining the reasons for such certification, and provide such certification and statement to the Chief Counsel for Advocacy of the Small Business Administration."

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1168.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1168.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1168.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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 the reasonable use of techniques such as—

(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);

(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), 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—

(1) the Environmental Protection Agency;

(2) the Consumer Financial Protection Bureau of the Federal Reserve System; and

(3) 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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1168; amended Pub. L. 104–121, title II, §244(a), Mar. 29, 1996, 110 Stat. 867; Pub. L. 111–203, title X, §1100G(a), July 21, 2010, 124 Stat. 2112.)

Editorial Notes

Amendments

2010—Subsec. (d). Pub. L. 111–203 substituted "means—" for "means the Environmental Protection Agency and the Occupational Safety and Health Administration of the Department of Labor." and added pars. (1) to (3).

1996—Pub. L. 104–121, §244(a)(2), (3), designated existing provisions as subsec. (a) and inserted "including soliciting and receiving comments over computer networks" after "entities" in par. (4).

Pub. L. 104–121, §244(a)(1), which directed insertion of "the reasonable use of" before "techniques," in introductory provisions, was executed by making the insertion in text which did not contain a comma after the word "techniques" to reflect the probable intent of Congress.

Subsecs. (b) to (e). Pub. L. 104–121, §244(a)(4), added subsecs. (b) to (e).

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective on the designated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of this title.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

Small Business Advocacy Chairpersons

Pub. L. 104–121, title II, §244(b), Mar. 29, 1996, 110 Stat. 868, provided that: "Not later than 30 days after the date of enactment of this Act [Mar. 29, 1996], the head of each covered agency that has conducted a final regulatory flexibility analysis shall designate a small business advocacy chairperson using existing personnel to the extent possible, to be responsible for implementing this section and to act as permanent chair of the agency's review panels established pursuant to this section."

§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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1169.)

Editorial Notes

References in Text

The effective date of this chapter, referred to in subsec. (a), is Jan. 1, 1981. See Effective Date note set out under section 601 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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.

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1169; amended Pub. L. 104–121, title II, §242, Mar. 29, 1996, 110 Stat. 865.)

Editorial Notes

Amendments

1996—Pub. L. 104–121 amended section generally. Prior to amendment, section read as follows:

"(a) Except as otherwise provided in subsection (b), any determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review.

"(b) Any regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or noncompliance of the agency with the provisions of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review.

"(c) 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 provided by law."

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§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 and Small Business of the Senate and House of Representatives.

(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).

(Added Pub. L. 96–354, §3(a), Sept. 19, 1980, 94 Stat. 1170; amended Pub. L. 104–121, title II, §243(b), Mar. 29, 1996, 110 Stat. 866.)

Editorial Notes

Amendments

1996—Subsec. (a). Pub. L. 104–121, §243(b)(1), which directed substitution of "the Committees on the Judiciary and Small Business of the Senate and House of Representatives" for "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", was executed by making the substitution for "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" to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 104–121, §243(b)(2), substituted "his or her views with respect to compliance with this chapter, the adequacy of the rulemaking record with respect to small entities and the" for "his views with respect to the".

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Small Business of Senate changed to Committee on Small Business and Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June 29, 2001.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective Date

Section effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

Termination of Reporting Requirements

For termination, effective May 15, 2000, of reporting provisions in subsec. (a) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 191 of House Document No. 103–7.

CHAPTER 7—JUDICIAL REVIEW

        

Statutory Notes and Related Subsidiaries

Short Title

The provisions of sections 551 to 559 of this title and this chapter were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the "Administrative Procedure Act". That Act was repealed as part of the general revision of this title by Pub. L. 89–554 and its provisions incorporated into sections 551 to 559 of this title and this chapter.

§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; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; ¹ and

(2) "person", "rule", "order", "license", "sanction", "relief", and "agency action" have the meanings given them by section 551 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 103–272, §5(a), July 5, 1994, 108 Stat. 1373; Pub. L. 111–350, §5(a)(3), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 1009 (introductory clause).	June 11, 1946, ch. 324, §10 (introductory clause), 60 Stat. 243.

In subsection (a), the words "This chapter applies, according to the provisions thereof," are added to avoid the necessity of repeating the introductory clause of former section 1009 in sections 702–706.

Subsection (b) is added on authority of section 2 of the Act of June 11, 1946, ch. 324, 60 Stat. 237, as amended, which is carried into section 551 of this title.

In subsection (b)(1)(G), the words "or naval" are omitted as included in "military".

In subsection (b)(1)(H), the words "functions which by law expire on the termination of present hostilities, within any fixed period thereafter, or before July 1, 1947" are omitted as executed. Reference to the "Selective Training and Service Act of 1940" is omitted as that Act expired on Mar. 31, 1947. Reference to the "Sugar Control Extension Act of 1947" is omitted as that Act expired on Mar. 31, 1948. References to the "Housing and Rent Act of 1947, as amended" and the "Veterans' Emergency Housing Act of 1946" have been consolidated as they are related. The reference to former section 1641(b)(2) of title 50, appendix, is retained notwithstanding its repeal by §111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–256, 75 Stat. 538, since §111(c) of the Act provides that a reference in other Acts to a provision of law repealed by §111(a) shall be considered to be a reference to the appropriate provisions of Pub. L. 87–256.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Sections 1884 and 1891–1902 of title 50, appendix, referred to in subsec. (b)(1)(H), were a part of the various Housing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to Title 50, War and National Defense, and had been repealed or omitted from the Code as executed prior to the elimination of the Appendix to Title 50. See Elimination of Title 50, Appendix note preceding section 1 of Title 50. Section 1641 of title 50, appendix, referred to in subsec. (b)(1)(H), was repealed by Pub. L. 87–256, §111(a)(1), Sept. 21, 1961, 75 Stat. 538.

Amendments

2011—Subsec. (b)(1)(H). Pub. L. 111–350 struck out "chapter 2 of title 41;" after "title 12;".

1994—Subsec. (b)(1)(H). Pub. L. 103–272 substituted "subchapter II of chapter 471 of title 49; or sections" for "or sections 1622,".

¹ See References in Text note below.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, §1, Oct. 21, 1976, 90 Stat. 2721.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1009(a).	June 11, 1946, ch. 324, §10(a), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1976—Pub. L. 94–574 removed the defense of sovereign immunity as a bar to judicial review of Federal administrative action otherwise subject to judicial review.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, §1, Oct. 21, 1976, 90 Stat. 2721.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1009(b).	June 11, 1946, ch. 324, §10(b), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1976—Pub. L. 94–574 provided that 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 as defendant.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1009(c).	June 11, 1946, ch. 324, §10(c), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1009(d).	June 11, 1946, ch. 324, §10(d), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1009(e).	June 11, 1946, ch. 324, §10(e), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.

Statutory Notes and Related Subsidiaries

Abbreviation of Record

Pub. L. 85–791, Aug. 28, 1958, 72 Stat. 941, which authorized abbreviation of record on review or enforcement of orders of administrative agencies and review on the original papers, provided, in section 35 thereof, that: "This Act [see Tables for classification] shall not be construed to repeal or modify any provision of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this title]."

CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

        

§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.

(D) For any rule submitted under subparagraph (A), if the Federal agency promulgating the rule, in whole or in part, revokes, suspends, replaces, amends, or otherwise makes the rule ineffective, or the rule is made ineffective for any other reason, the Federal agency shall submit to the Comptroller General a report containing—

(i) the title of the rule;

(ii) the Federal Register citation for the rule, if any;

(iii) the date on which rule was submitted to the Comptroller General; and

(iv) a description of the provisions of the rule that are being revoked, suspended, replaced, amended, or otherwise made ineffective.

(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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 868; amended Pub. L. 118–5, div. B, title III, §270, June 3, 2023, 137 Stat. 33; Pub. L. 118–97, §2, Oct. 1, 2024, 138 Stat. 1573.)

Amendment of Subsection (a)(1)(D)

Pub. L. 118–97, §2(b), Oct. 1, 2024, 138 Stat. 1574, provided that, effective 6 years after Oct. 1, 2024, subsection (a)(1) of this section is amended by striking subparagraph (D). See 2024 Amendment note below.

Editorial Notes

References in Text

Sections 202, 203, 204, and 205 of the Unfunded Mandates Reform Act of 1995, referred to in subsec. (a)(1)(B)(iii), are classified to sections 1532, 1533, 1534, and 1535, respectively, of Title 2, The Congress.

The date of the enactment of this chapter, referred to in subsec. (e)(1), (2), is the date of the enactment of Pub. L. 104–121, which was approved Mar. 29, 1996.

Amendments

2024—Subsec. (a)(1)(D). Pub. L. 118–97, §2(b), struck out subpar. (D) which required Federal agencies to submit to the Comptroller General a report on rules that are revoked, suspended, replaced, amended, or otherwise made ineffective.

Pub. L. 118–97, §2(a), added subpar. (D).

2023—Subsec. (a)(2)(A). Pub. L. 118–5, §§268, 270, temporarily inserted ", and shall in addition include an assessment of the agency's compliance with such requirements of the Administrative Pay-As-You-Go Act of 2023 as may be applicable" after "compliance with procedural steps required by paragraph (1)(B)". See Termination Date of 2023 Amendment note below.

Statutory Notes and Related Subsidiaries

Effective Date of 2024 Amendment

Pub. L. 118–97, §2(b), Oct. 1, 2024, 138 Stat. 1574, provided that the amendment made by section 2(b) is effective on the date that is 6 years after Oct. 1, 2024.

Termination Date of 2023 Amendment

Amendment by Pub. L. 118–5 expires on Dec. 31, 2024, see section 268 of Pub. L. 118–5, set out in a Statutory Administrative Pay-As-You-Go note under section 551 of this title.

Effective Date

Pub. L. 104–121, title II, §252, Mar. 29, 1996, 110 Stat. 874, provided that: "The amendment made by section 351 [probably means section 251, enacting this chapter] shall take effect on the date of enactment of this Act [Mar. 29, 1996]."

Short Title

This chapter is popularly known as the "Congressional Review Act".

Truth in Regulating

Pub. L. 106–312, Oct. 17, 2000, 114 Stat. 1248, as amended by Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Truth in Regulating Act of 2000'.

"SEC. 2. PURPOSES.

"The purposes of this Act are to—

"(1) increase the transparency of important regulatory decisions;

"(2) promote effective congressional oversight to ensure that agency rules fulfill statutory requirements in an efficient, effective, and fair manner; and

"(3) increase the accountability of Congress and the agencies to the people they serve.

"SEC. 3. DEFINITIONS.

"In this Act, the term—

"(1) 'agency' has the meaning given such term under section 551(1) of title 5, United States Code;

"(2) 'economically significant rule' means any proposed or final rule, including an interim or direct final rule, that may have an annual effect on the economy of $100,000,000 or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; and

"(3) 'independent evaluation' means a substantive evaluation of the agency's data, methodology, and assumptions used in developing the economically significant rule, including—

"(A) an explanation of how any strengths or weaknesses in those data, methodology, and assumptions support or detract from conclusions reached by the agency; and

"(B) the implications, if any, of those strengths or weaknesses for the rulemaking.

"SEC. 4. PILOT PROJECT FOR REPORT ON RULES.

"(a) In General.—

"(1) Request for review.—When an agency publishes an economically significant rule, a chairman or ranking member of a committee of jurisdiction of either House of Congress may request the Comptroller General of the United States to review the rule.

"(2) Report.—The Comptroller General shall submit a report on each economically significant rule selected under paragraph (4) to the committees of jurisdiction in each House of Congress not later than 180 calendar days after a committee request is received. The report shall include an independent evaluation of the economically significant rule by the Comptroller General.

"(3) Independent evaluation.—The independent evaluation of the economically significant rule by the Comptroller General under paragraph (2) shall include—

"(A) an evaluation of the agency's analysis of the potential benefits of the rule, including any beneficial effects that cannot be quantified in monetary terms and the identification of the persons or entities likely to receive the benefits;

"(B) an evaluation of the agency's analysis of the potential costs of the rule, including any adverse effects that cannot be quantified in monetary terms and the identification of the persons or entities likely to bear the costs;

"(C) an evaluation of the agency's analysis of alternative approaches set forth in the notice of proposed rulemaking and in the rulemaking record, as well as of any regulatory impact analysis, federalism assessment, or other analysis or assessment prepared by the agency or required for the economically significant rule; and

"(D) a summary of the results of the evaluation of the Comptroller General and the implications of those results.

"(4) Procedures for priorities of requests.—The Comptroller General shall have discretion to develop procedures for determining the priority and number of requests for review under paragraph (1) for which a report will be submitted under paragraph (2).

"(b) Authority of Comptroller General.—Each agency shall promptly cooperate with the Comptroller General in carrying out this Act. Nothing in this Act is intended to expand or limit the authority of the Government Accountability Office.

"SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

"There are authorized to be appropriated to the Government Accountability Office to carry out this Act $5,200,000 for each of fiscal years 2000 through 2002.

"SEC. 6. EFFECTIVE DATE AND DURATION OF PILOT PROJECT.

"(a) Effective Date.—This Act and the amendments made by this Act shall take effect 90 days after the date of enactment of this Act [Oct. 17, 2000].

"(b) Duration of Pilot Project.—The pilot project under this Act shall continue for a period of 3 years, if in each fiscal year, or portion thereof included in that period, a specific annual appropriation not less than $5,200,000 or the pro-rated equivalent thereof shall have been made for the pilot project.

"(c) Report.—Before the conclusion of the 3-year period, the Comptroller General shall submit to Congress a report reviewing the effectiveness of the pilot project and recommending whether or not Congress should permanently authorize the pilot project."

§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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 871.)

§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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 873.)

§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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 873.)

Editorial Notes

References in Text

The Telecommunications Act of 1996, referred to in par. (2), is Pub. L. 104–104, Feb. 8, 1996, 110 Stat. 56. For complete classification of this Act to the Code, see Short Title of 1996 Amendment note set out under section 609 of Title 47, Telecommunications, and Tables.

§805. Judicial review

No determination, finding, action, or omission under this chapter shall be subject to judicial review.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 873.)

§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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 873.)

§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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 874.)

§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.

(Added Pub. L. 104–121, title II, §251, Mar. 29, 1996, 110 Stat. 874.)

CHAPTER 9—EXECUTIVE REORGANIZATION

        

        

Editorial Notes

Amendments

1984—Pub. L. 98–614, §3(e)(3), Nov. 8, 1984, 98 Stat. 3193, substituted "passage" for "disapproval" in item 912.

1977—Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 29, reenacted chapter heading and items 901 to 903, 905 to 909, and 911 without change, substituted "plan" for "plans" in item 904 and "Introduction and reference of resolution" for "Reference of resolution to committee" in item 910, inserted "; vote on final disapproval" in item 912, and omitted item 913 "Decisions without debate on motion to postpone or proceed".

¹ So in original. Does not conform to section catchline.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 394; Pub. L. 92–179, §1, Dec. 10, 1971, 85 Stat. 574; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 29.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z.	June 20, 1949, ch. 226, §2, 63 Stat. 203.

In subsection (a), the words "from time to time examine" are substituted for "examine and from time to time reexamine" since the initial examination has been executed. The words "of the Government" following "agencies" are omitted as unnecessary in view of the definition of "agency" in section 902. In subsection (a)(1), the words "of the Government" following "executive branch" are omitted as unnecessary and to conform to the style of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Codification

Section 901(c) of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 60e–2(a) of Title 2, The Congress.

Amendments

1977—Subsecs. (a) to (d). Pub. L. 95–17 reenacted subsecs. (a) and (b) without change, added subsec. (c), and redesignated former subsec. (c) as (d).

1971—Subsec. (a). Pub. L. 92–179, §1(a), substituted "The Congress declares that it is the policy of the United States" for "The President shall from time to time examine the organization of all agencies and shall determine what changes therein are necessary to accomplish the following purposes" preceding par. (1).

Subsec. (c). Pub. L. 92–179, §1(b), added subsec. (c) consisting of provisions formerly set out preceding par. (1) of subsec. (a).

Statutory Notes and Related Subsidiaries

Short Title of 1984 Amendment

Pub. L. 98–614, §1, Nov. 8, 1984, 98 Stat. 3192, provided: "That this Act [amending sections 903 to 906 and 908 to 912 of this title] may be cited as the 'Reorganization Act Amendments of 1984'."

Short Title of 1977 Amendment

Pub. L. 95–17, §1, Apr. 6, 1977, 91 Stat. 29, provided: "That this Act [amending this chapter] may be cited as the 'Reorganization Act of 1977'."

National Commission on Executive Organization

Pub. L. 100–527, §17, Oct. 25, 1988, 102 Stat. 2645, directed President, within 30 days after Mar. 15, 1989, to make a determination as to whether the national interest would be served by establishment of a National Commission on Executive Organization to review structural organization of executive branch of Federal Government, and stated that if President failed to transmit to Congress notification of his intent to establish such Commission section would cease to be effective 30 days after Mar. 15, 1989. [President did not transmit such notification to Congress and thus section ceased to be effective 30 days after Mar. 15, 1989.]

Executive Documents

Ex. Ord. No. 6166. Reorganization of Executive Agencies Generally

Ex. Ord. No. 6166, June 10, 1933, provided:

§1. Procurement

The function of determination of policies and methods of procurement, warehousing, and distribution of property, facilities, structures, improvements, machinery, equipment, stores, and supplies exercised by an agency is transferred to a Procurement Division in the Treasury Department, at the head of which shall be a Director of Procurement.

The Office of the Supervising Architect of the Treasury Department is transferred to the Procurement Division, except that the buildings of the Treasury Department shall be administered by the Treasury Department and the administration of post-office buildings is transferred to the Post Office Department. The General Supply Committee of the Treasury Department is abolished.

In respect of any kind of procurement, warehousing, or distribution for any agency the Procurement Division may, with the approval of the President, (a) undertake the performance of such procurement, warehousing, or distribution itself, or (b) permit such agency to perform such procurement, warehousing, or distribution, or (c) entrust such performance to some other agency, or (d) avail itself in part of any of these recourses, according as it may deem desirable in the interest of economy and efficiency. When the Procurement Division has prescribed the manner of procurement, warehousing, or distribution of any thing, no agency shall thereafter procure, warehouse, or distribute such thing in any manner other than so prescribed.

The execution of work now performed by the Corps of Engineers of the Army shall remain with said corps, subject to the responsibilities herein vested in the Procurement Division.

The Procurement Division shall also have control of all property, facilities, structures, machinery, equipment, stores, and supplies not necessary to the work of any agency; may have custody thereof or entrust custody to any other agency; and shall furnish the same to agencies as need therefor may arise.

The Fuel Yards of the Bureau of Mines of the Department of Commerce are transferred to the Procurement Office. (As amended by Ex. Ord. No. 6623 of Mar. 1, 1934.)

Amendment of Section by Ex. Ord. No. 6623

Ex. Ord. No. 6623, Mar. 1, 1934, revoked a final paragraph of section 1 of Ex. Ord. No. 6166, which provided for the abolition of the Federal Employment Stabilization Board and the transfer of its functions to the Federal Emergency Administration of Public Works. Said Ex. Ord. No. 6623 also provided in part as follows:

"It is further ordered that the said Federal Employment Stabilization Board be, and it is hereby, abolished.

"There is hereby established in the Department of Commerce an office to be known as the 'Federal Employment Stabilization Office,' and there are hereby transferred to such office the functions of the Federal Employment Stabilization Board, together with its Director and other personnel, and records, supplies, equipment, and property of every kind.

"The unexpended balances of appropriations and/or allotments of appropriations of the Federal Employment Stabilization Board are hereby transferred to the Federal Employment Stabilization Office, Department of Commerce."

Effective Date

The effective date of Ex. Ord. No. 6166, §1, as provided for in section 22, post, was extended to Dec. 31, 1933, by Ex. Ord. No. 6224, of July 27, 1933, and the effective date of the last paragraph, subsequently revoked by Ex. Ord. No. 6623, was deferred by Ex. Ord. No. 6624 of Mar. 1, 1934, until such revocation could become effective.

[Subsequent to the effective date of Ex. Ord. No. 6166, §1, certain functions affected thereby were again transferred as follows: The Public Buildings Branch of the Procurement Division was transferred to Public Buildings Administration within the Federal Works Administration by 1939 Reorg. Plan No. 1, §§301, 303, 4 Fed. Reg. 2729; 53 Stat. 1426, 1427; the Federal Employment Stabilization Office, created by Ex. Ord. No. 6166, §1, as amended by Ex. Ord. No. 6624, was abolished by 1939 Reorg. Plan No. 1, §4, 4 Fed. Reg. 2727, 53 Stat. 1423, and its functions transferred to the Executive Office of the President.]

Supersedure of Pars. 1, 3, and 5

Section 602(b) of act June 30, 1949, ch. 288, title VI, 63 Stat. 401, eff. July 1, 1949, as renumbered from title V, section 502(b) of said act June 30, 1949 by act Sept. 5, 1950, ch. 849, §§6(a), (b), 7(e), 64 Stat. 583, provided that: "The provisions of the first, third, and fifth paragraphs of section 1 of Executive Order Numbered 6166 of June 10, 1933 [this Ex. Ord.], are hereby superseded, insofar as they relate to any function now administered by the Bureau of Federal Supply except functions with respect to standard contract forms."

§2. National Parks, Buildings, and Reservations

All functions of administration of public buildings, reservations, national parks, national monuments, and national cemeteries are consolidated in the National Park Service in the Department of the Interior, at the head of which shall be a Director of the National Park Service; except that where deemed desirable there may be excluded from this provision any public building or reservation which is chiefly employed as a facility in the work of a particular agency. This transfer and consolidation of functions shall include, among others, those of the former National Park Service of the Department of the Interior and the following National Cemeteries and Parks of the War Department which are located within the continental limits of the United States:

National Military Parks

Chickamauga and Chattanooga National Military Park, Georgia and Tennessee.

Fort Donelson National Military Park, Tennessee.

Fredericksburg and Spotsylvania County Battle Fields Memorial, Virginia.

Gettysburg National Military Park, Pennsylvania.

Guilford Courthouse National Military Park, North Carolina.

Kings Mountain National Military Park, South Carolina.

Moores Creek National Military Park, North Carolina.

Petersburg National Military Park, Virginia.

Shiloh National Military Park, Tennessee.

Stones River National Military Park, Tennessee.

Vicksburg National Military Park, Mississippi.

National Parks

Abraham Lincoln National Park, Kentucky.

Fort McHenry National Park, Maryland.

Battlefield Sites

Antietam Battlefield, Maryland.

Appomattox, Virginia.

Brices Cross Roads, Mississippi.

Chalmette Monument and Grounds, Louisiana.

Cowpens, South Carolina.

Fort Necessity, Wharton County, Pennsylvania.

Kenesaw Mountain, Georgia.

Monocacy, Maryland.

Tupelo, Mississippi.

White Plains, New York.

National Monuments

Big Hole Battlefield, Beaverhead County, Montana.

Cabrillo Monument, Fort Rosecrans, California.

Castle Pinckney, Charleston, South Carolina.

Father Millet Cross, Fort Niagara, New York.

Fort Marion, St. Augustine, Florida.

Fort Matanzas, Florida.

Fort Pulaski, Georgia.

Meriwether Lewis, Hardin County, Tennessee.

Mound City Group, Chillicothe, Ohio.

Statue of Liberty, Fort Wood, New York.

Miscellaneous Memorials

Camp Blount Tablets, Lincoln County, Tennessee.

Kill Devil Hill Monument, Kitty Hawk, North Carolina.

New Echota Marker, Georgia.

Lee Mansion, Arlington National Cemetery, Virginia.

National Cemeteries

Custer Battlefield, National Cemetery in the State of Montana.

Battleground, District of Columbia.

Antietam (Sharpsburg), Maryland.

Vicksburg, Mississippi.

Gettysburg, Pennsylvania.

Chattanooga, Tennessee.

Fort Donelson (Dover), Tennessee.

Shiloh (Pittsburg Landing), Tennessee.

Stones River (Murfreesboro), Tennessee.

Fredericksburg, Virginia.

Poplar Grove (Petersburg), Virginia.

Yorktown, Virginia.

National cemeteries located in insular possessions under the jurisdiction of the War Department shall be administered by the Bureau of Insular Affairs of the War Department.

The functions of the following agencies are transferred to the National Park Service of the Department of the Interior, and the agencies are abolished:

Arlington Memorial Bridge Commission

Public Buildings Commission

Public Buildings and Public Parks of the National Capital

National Memorial Commission

Rock Creek and Potomac Parkway Commission

Expenditures by the Federal Government for the purposes of the Commission of Fine Arts, the George Rogers Clark Sesquicentennial Commission, and the Rushmore National Commission shall be administered by the Department of the Interior. (As amended by Ex. Ord. No. 6228 of July 28, 1933; Ex. Ord. No. 6614 of Feb. 26, 1934; Ex. Ord. No. 8428 of June 3, 1940, 5 F.R. 2132; and act Mar. 2, 1934. ch. 39, §1, 48 Stat. 389.)

Amendments

The enumeration of the National Cemeteries and Parks of the War Department which were transferred to the Department of the Interior was added by Ex. Ord. No. 6228, §1, of July 28, 1933, and Ex. Ord. No. 8428 of June 3, 1940.

A provision of this section transferring the administration of national cemeteries located in foreign countries to the State Department was revoked by Ex. Ord. No. 6614 of Feb. 26, 1934.

Effective Date

See section 22 of this Ex. Ord. The transfer of national cemeteries located in the insular possessions to the Bureau of Insular Affairs, as provided in this section, was postponed until further order by Ex. Ord. No. 6228, §3, of July 28, 1933.

§3. Investigations

All functions now exercised by the Bureau of Prohibition of the Department of Justice with respect to the granting of permits under the national prohibition laws are transferred to the Division of Internal Revenue in the Treasury Department.

All functions now exercised by the Bureau of Prohibition with respect to investigations and all the functions now performed by the Bureau of Investigation of the Department of Justice are transferred to and consolidated in a Division of Investigation in the Department of Justice, at the head of which shall be a Director of Investigation.

All other functions now performed by the Bureau of Prohibition are transferred to such divisions in the Department of Justice as in the judgment of the Attorney General may be desirable.

§4. Disbursement

[Section, as amended by Ex. Ord. No. 6728, May 29, 1934; 1940 Reorg. Plan No. III, §1(a)(1), eff. June 30, 1940, 5 F.R. 2107, 54 Stat. 1231; and 1940 Reorg. Plan No. IV, §§3, 4, eff. June 30, 1940, 5 F.R. 2421, 54 Stat. 1234, which provided that the function of disbursement of moneys of the United States exercised by any agency [except United States marshals; the Post Office Department; the Postmaster General; the Board of Trustees of the Postal Savings System; and those disbursement functions of the War Department, Navy Department (including the Marine Corps), and the Panama Canal, not pertaining to departmental salaries in the District of Columbia] were transferred to the [Fiscal Service of the] Treasury Department and, together with the Office of Disbursing Clerk of that department, was consolidated in a Division of Disbursement, at the head of which was a Chief Disbursing Officer, that the Division of Disbursement of the Treasury Department was authorized to establish local offices, or to delegate the exercise of its functions locally to officers or employees of other agencies, according as the interests of efficiency and economy might require, that the Division of Disbursement would disburse moneys only upon the certification of persons by law duly authorized to incur obligations upon behalf of the United States and that the function of accountability for improper certification would be transferred to such persons, and no disbursing officer would be held accountable therefor, was repealed and reenacted as section 3321 of Title 31, Money and Finance, by Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 877, the first section of which enacted Title 31.]

Amendments

The bracketed provisions in the first sentence of section 4 of Ex. Ord. No. 6166 reflect the changes effected by 1940 Reorg. Plan No. IV, §§3, 4, eff. June 30, 1940, 5 F.R. 2421, 54 Stat. 1234, 1235, Ex. Ord. No. 6728, and 1940 Reorg. Plan No. III, §1(a)(1), 5 F.R. 2107, 54 Stat. 1231, respectively.

Effective Date

The effective date of section 4 of Ex. Ord. No. 6166, originally fixed by section 22 of this Ex. Ord., was subsequently postponed as follows: to Dec. 31, 1933, by Ex. Ord. No. 6224 of July 27, 1933; to June 30, 1934 (insofar as not already effected prior to Dec. 31, 1933), by Ex. Ord. No. 6540 of Dec. 28, 1933; to Dec. 31, 1934 (insofar as not already effected prior to June 30, 1934), by Ex. Ord. No. 6727 of May 29, 1934; to June 30, 1935, by Ex. Ord. No. 6927 of Dec. 31, 1934; to Dec. 31, 1935 (insofar as not already effected prior to June 30, 1934), by Ex. Ord. No. 7077 of June 15, 1935; to June 30, 1936 (insofar as not already effected prior to Dec. 31, 1935), by Ex. Ord. No. 7261 of Dec. 31, 1935. Each of these orders contained a provision that the changes therein delayed might be made sooner effective by order of the Secretary of the Treasury approved by the President.

§5. Claims By or Against the United States

The functions of prosecuting in the courts of the United States claims and demands by, and offenses against, the Government of the United States and of defending claims and demands against the Government, and of supervising the work of United States attorneys, marshals, and clerks in connection therewith, now exercised by any agency or officer, are transferred to the Department of Justice.

As to any case referred to the Department of Justice for prosecution or defense in the courts, the function of decision whether and in what manner to prosecute, or to defend, or to compromise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Department of Justice.

For the exercise of such of his functions as are not transferred to the Department of Justice by the foregoing two paragraphs, the Solicitor of the Treasury is transferred from the Department of Justice to the Treasury Department.

Nothing in this section shall be construed to affect the function of any agency or officer with respect to cases at any stage prior to reference to the Department of Justice for prosecution or defense.

Effective Date

With regard to legal work performed by the Veterans' Administration in connection with suits against the United States arising under section 19 of the World War Veterans Act, 1924, the effective date of this section was postponed to Sept. 10, 1933, by Ex. Ord. No. 6222 of July 27, 1933.

The effective date of the first paragraph of this section, insofar as it affected the functions of the General Counsel for the Bureau of Internal Revenue, was postponed until Oct. 10, 1933, by Ex. Ord. No. 6244 of Aug. 8, 1933.

§6. Insular Courts

The United States Court for China, the District Court of the United States for the Panama Canal Zone, and the District Court of the Virgin Islands of the United States are transferred to the Department of Justice.

Effective Date

Ex. Ord. No. 6243, Aug. 5, 1933, provided that "the effective date of the transfer to the Department of Justice of the District Court of the United States for the Panama Canal Zone is hereby postponed to October 4, 1933."

§7. Solicitors

The Solicitor for the Department of Commerce is transferred from the Department of Justice to the Department of Commerce.

The Solicitor for the Department of Labor is transferred from the Department of Justice to the Department of Labor.

§8. Internal Revenue

The Bureaus of Internal Revenue and or Industrial Alcohol of the Treasury Department are consolidated in a Division of Internal Revenue, at the head of which shall be a Commissioner of Internal Revenue.

Effective Date

The effective date of section 8 of Ex. Ord. No. 6166, originally fixed by section 22 of the same order, post, was subsequently postponed as follows: to Dec. 31, 1933, by Ex. Ord. No. 6224 of July 27, 1933; to June 30, 1934, by Ex. Ord. No. 6540 of Dec. 28, 1933. Said orders, however, contained a provision whereby the changes thereby delayed might be sooner effected by order of the Secretary of the Treasury approved by the President.

§9. Assistant Secretary of Commerce

The Assistant Secretary of Commerce for Aeronautics shall be an Assistant Secretary of Commerce and shall perform such functions as the Secretary of Commerce may designate.

§10. Official Register

The function of preparation of the Official Register is transferred from the Bureau of the Census to the Civil Service Commission.

§11. Statistics of Cities

The function of the Bureau of the Census of the Department of Commerce of compiling statistics of cities under 100,000 population is abolished for the period ending June 30, 1935.

§12. Shipping Board

The functions of the United States Shipping Board including those over and in respect to the United States Shipping Board Merchant Fleet Corporation are transferred to the Department of Commerce, and the United States Shipping Board is abolished.

§13. National Screw Thread Commission

The National Screw Thread Commission is abolished, and its records, property, facilities, equipment, and supplies are transferred to the Department of Commerce.

§14. Immigration and Naturalization

The Bureaus of Immigration and of Naturalization of the Department of Labor are consolidated as an Immigration and Naturalization Service of the Department of Labor, at the head of which shall be a Commissioner of Immigration and Naturalization.

§15. Vocational Education

The functions of the Federal Board for Vocational Education are transferred to the Department of the Interior, and the Board shall act in an advisory capacity without compensation.

§16. Apportionment of Appropriations

The functions of making, waiving, and modifying apportionments of appropriations are transferred to the Director of the Bureau of the Budget.

§17. Coordinating Service

The Federal Coordinating Service is abolished.

Effective Date

The effective date of this section originally fixed by section 22 of this Ex. Ord., was subsequently deferred to Oct. 10, 1933, by Ex. Ord. No. 6239 of Aug. 2, 1933.

§18. Functions Abolished

Section 18 of Ex. Ord. No. 6166, which provided for the partial abolition of cooperative vocational education payments for agricultural experiment stations; cooperative agricultural extension work; and endowment and maintenance of colleges for the benefit of agriculture and the mechanical arts, was revoked by Ex. Ord. No. 6536 of Feb. 6, 1934.

§19. General Provisions

Each agency, all the functions of which are transferred to or consolidated with another agency, is abolished.

The records pertaining to an abolished agency or a function disposed of, disposition of which is not elsewhere herein provided for, shall be transferred to the successor. If there be no successor agency, and such abolished agency be within a department, said records shall be disposed of as the head of such department may direct.

The property, facilities, equipment, and supplies employed in the work of an abolished agency or the exercise of a function disposed of, disposition of which is not elsewhere herein provided for, shall, to the extent required, be transferred to the successor agency. Other such property, facilities, equipment, and supplies shall be transferred to the Procurement Division.

All personnel employed in connection with the work of an abolished agency or function disposed of shall be separated from the service of the United States, except that the head of any successor agency, subject to my approval, may, within a period of four months after transfer or consolidation, reappoint any of such personnel required for the work of the successor agency without reexamination or loss of civil-service status.

Effective Date

The effective date of the last paragraph of this section, originally fixed by section 22, post, was deferred as to employees separated from service under sections 2 and 15, ante, until Sept. 30, 1933, by Ex. Ord. No. 6227 of July 27, 1933. As to employees separated under section 12, ante, a similar deferment to Sept. 30, 1933, was made by Ex. Ord. No. 6245 of Aug. 9, 1933.

§20. Appropriations

Such portions of the unexpended balances of appropriations for any abolished agency or function disposed of shall be transferred to the successor agency as the Director of the Budget shall deem necessary.

Unexpended balances of appropriations for an abolished agency or function disposed of, not so transferred by the Director of the Budget, shall, in accordance with law, be impounded and returned to the Treasury.

§21. Definitions

As used in this order—

"Agency" means any commission, independent establishment, board, bureau, division, service, or office in the executive branch of the Government.

"Abolished agency" means any agency which is abolished, transferred, or consolidated.

"Successor agency" means any agency to which is transferred some other agency or function, or which results from the consolidation of other agencies or functions.

"Function disposed of" means any function eliminated or transferred.

§22. Effective Date

In accordance with law, this order shall become effective 61 days from its date: Provided, That in case it shall appear to the President that the interests of economy require that any transfer, consolidation, or elimination be delayed beyond the date this order becomes effective, he may, in his discretion, fix a later date therefor, and he may for like cause further defer such date from time to time. (Promulgated June 10, 1933.)

[Postponements of effective date of certain transfers, etc., see notes under the various sections of this Executive Order effecting those transfers, etc.]

Executive Order No. 7261, promulgated December 31, 1935, provided that "except as hereinafter provided, the transfers, consolidations, and eliminations contemplated by section 4 of Executive Order No. 6166 of June 10, 1933, as amended, which are not effected prior to December 31, 1935, pursuant to Executive Order No. 6224 of July 27, 1933, Executive Order No. 6540 of December 28, 1933, Executive Order No. 6727 of May 29, 1934, Executive Order No. 6927 of December 21, 1934, and Executive Order No. 7077 of June 15, 1935, together with the operation of all other provisions of Executive Order No. 6166 of June 10, 1933, as amended, in so far as they relate to said section 4, be further delayed until June 30, 1936: Provided, that any transfer, consolidation, or elimination, in whole or in part, under said section 4, including any other provisions of the said order of June 10, 1933, in so far as they relate to section 4 thereof, may be made operative and effective between December 31, 1935, and June 30, 1936, by order of the Secretary of the Treasury, approved by the President."

Executive Order No. 7980, promulgated September 29, 1938, provided: "That the transfers, consolidations, and eliminations contemplated by section 4 of Executive Order No. 6166 of June 10, 1933, as amended, together with the operation of all other provisions of Executive Order No. 6166 of June 10, 1933, as amended, so far as they relate to the said section 4, be further delayed until December 31, 1938, with respect to the function of disbursement now exercised by United States Marshals under the Department of Justice."

Functions relating to disbursement by United States marshals which would otherwise have become functions of Treasury Department on July 1, 1940, by virtue of Ex. Ord. No. 6166, as amended, were transferred to and vested in Department of Justice to be exercised by United States marshals under supervision of Attorney General in accordance with existing statutes pertaining to such functions, by Reorg. Plan No. IV of 1940, §3, eff. June 30, 1940. See, also, sections 13–15 of said plan for provisions relating to transfer of functions of department heads, records, property, personnel, and funds.

Functions relating to disbursement of postal revenues and all other funds under jurisdiction of Post Office Department, Postmaster General, and Board of Trustees of Postal Savings System which would otherwise have become functions of Treasury Department on July 1, 1940, by virtue of Ex. Ord. No. 6166, as amended, set out in note under this section, were transferred to and vested in (a) said Board of Trustees as to postal savings disbursements, and (b) Post Office Department as to all other disbursements involved, such functions to be exercised by postmasters and other authorized disbursing agents of Post Office Department and of Postal Savings System in accordance with existing statutes pertaining to such functions, by Reorg. Plan No. IV of 1940, §4, eff. June 30, 1940. See, also, sections 13–15 of said plan for provisions relating to transfer of functions of department heads, records, property, personnel, and funds.

Public Buildings Branch of Procurement Division and its functions and personnel were transferred to Public Buildings Administration, and functions of Secretary of Agriculture and Director of Procurement Division relating to administration thereof and to selection of sites for public buildings were transferred to Federal Works Administrator by Reorg. Plan No. I of 1939, §§301, 303, effective July 1, 1939. See also sections 307–310 of said plan for provisions relating to transfer of records, property, funds, and personnel.

§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 Government Accountability 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 394; Pub. L. 90–83, §1(98), Sept. 11, 1967, 81 Stat. 220; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 30; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(1)	5 U.S.C. 133z–5.	June 20, 1949, ch. 226, §7, 63 Stat. 205.
(2)	5 U.S.C. 133z–6.	June 20, 1949, ch. 226, §8, 63 Stat. 206.

In paragraph (1)(A), the words "an Executive agency or part thereof" are coextensive with and substituted for "any executive department, commission, council, independent establishment, Government corporation, board, bureau, division, service, . . . authority, administration, or other establishment, in the executive branch of the Government" and to conform to the definition in section 105.

In paragraph (1)(B), the words "an office or officer in the civil service or uniformed services in or under an Executive agency" are substituted for "office, officer, . . . in the executive branch of the Government" to conform to the definitions in sections 105, 2101, and 2104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

This section amends section 902 of title 5, United States Code, so as to preserve the application of the source statute for section 902 (sec. 7 of the Reorganization Act of 1949). In the codification of title 5 by Public Law 89–554, that application was inadvertently restricted due to the operation of section 2104 of title 5, providing a title-wide definition of "officer." Briefly, that section defines "officer" as a civil appointive officer of the Federal Government. In the Reorganization Act of 1949, the word "officer" was not defined, and has been construed to include not only civil appointive officers, but uniformed officers, the President, and officers of the government of the District of Columbia. Thus, this section amends section 902 of title 5 by inserting a paragraph providing that the title-wide definition of officer is inapplicable to chapter 9 of title 5. Also, paragraph (1)(B) of section 902 is amended so that the wording thereof is identical to that formerly appearing in section 7 of the Reorganization Act of 1949.

Editorial Notes

Codification

Section 902(a) of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 60e–2(b) of Title 2, The Congress.

Amendments

2004—Par. (1). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in concluding provisions.

1977—Par. (1)(C). Pub. L. 95–17 struck out subpar. (C) which defined "agency" as any and all parts of the government of the District of Columbia other than the courts thereof.

Statutory Notes and Related Subsidiaries

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–83 effective Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 394; Pub. L. 90–83, §1(99), Sept. 11, 1967, 81 Stat. 220; Pub. L. 92–179, §2, Dec. 10, 1971, 85 Stat. 574; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 30; Pub. L. 98–614, §§3(b)(1), (2), 4, Nov. 8, 1984, 98 Stat. 3192, 3193.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–1.	June 20, 1949, ch. 226, §3, 63 Stat. 203.

In subsection (a)(5), the words "officer in the civil service or uniformed services" are substituted for "officer" to conform to the definitions in sections 2101 and 2104.

In subsection (b), the words "The President shall have a reorganization plan delivered" as substituted for "The delivery . . . shall be".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section 1(99) amends section 903(a)(5) of title 5, United States Code, to conform to the wording formerly appearing in the source statute (sec. 3(5) of the Reorganization Act of 1949). In this regard, the explanation appearing in section 1(98) of this bill is equally applicable to this section.

Editorial Notes

Amendments

1984—Subsec. (b). Pub. L. 98–614, §4, inserted "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."

Subsec. (c). Pub. L. 98–614, §3(b)(1), (2), substituted "60 calendar days" for "thirty calendar days", and "90 calendar days" for "sixty calendar days".

1977—Subsec. (a)(2). Pub. L. 95–17 inserted provision that no enforcement function or statutory program shall be abolished by the plan.

Subsec. (b). Pub. L. 95–17 substituted provisions limiting to three the number of plans that may be pending before Congress at any one time for provisions limiting to one the number of plans that may be transmitted to Congress within any period of thirty consecutive days and provisions requiring that the President estimate any increase in expenditures and describe any improvements in management, delivery of Federal services, execution of laws, and increases in efficiency of Government operations expected as a result of the reorganizations included in the plan.

Subsec. (c). Pub. L. 95–17 added subsec. (c).

1971—Subsec. (a). Pub. L. 92–179, §2(a), restructured provisions covering requirements of findings of fact and certification by placing in a position preceding par. (1) provisions formerly set out following par. (6).

Subsec. (b). Pub. L. 92–179, §2(b), inserted provisions limiting to one plan within any period of thirty consecutive days the allowable number of plans submitted.

Statutory Notes and Related Subsidiaries

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–83 effective Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 395; Pub. L. 92–179, §3, Dec. 10, 1971, 85 Stat. 575; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 31; Pub. L. 98–614, §5(b), Nov. 8, 1984, 98 Stat. 3194.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–2.	June 20, 1949, ch. 226, §4, 63 Stat. 204.

In paragraph (1), the words "may change" are substituted for "shall change" in view of the discretionary grant of authority reflected by the words "in such cases as the President considers necessary".

In paragraph (2), the words "competitive service" are substituted for "classified civil service" to conform to the definition in section 2102.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Par. (1). Pub. L. 98–614 inserted ", subject to section 905,".

1977—Pub. L. 95–17 struck out in provisions following par. (5) exception that, in the case of an officer of the government of the District of Columbia, the appointment of the head of an agency may be by the Commissioner or other body of that government designated in the plan.

1971—Pub. L. 92–179 revised the form of the provisions covering the elements which a reorganization plan contains by moving provisions formerly set out in par. (2) to a position following par. (5).

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 396; Pub. L. 91–5, Mar. 27, 1969, 83 Stat. 6; Pub. L. 92–179, §4, Dec. 10, 1971, 85 Stat. 576; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 31; Pub. L. 96–230, Apr. 8, 1980, 94 Stat. 329; Pub. L. 98–614, §§2(a), 5(a), Nov. 8, 1984, 98 Stat. 3192, 3193.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 133z–3(a).	June 20, 1949, ch. 226, §5(a), 63 Stat. 205. July 2, 1964, Pub. L. 88–351, §2, 78 Stat. 240.
(b)	5 U.S.C. 133z–3(b).	June 20, 1949, ch. 226, §5(b), 63 Stat. 205.
		Feb. 11, 1953, ch. 3, 67 Stat. 4.
		Mar. 25, 1955, ch. 16, 69 Stat. 14.
		Sept. 4, 1957, Pub. L. 85–286, §1, 71 Stat. 611.
		Apr. 7, 1961, Pub. L. 87–18, 75 Stat. 41.
		July 2, 1964, Pub. L. 88–351, §1, 78 Stat. 240.
		June 18, 1965, Pub. L. 89–43, 79 Stat. 135.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Subsec. (a)(1). Pub. L. 98–614, §5(a)(1), inserted "or renaming an existing executive department".

Subsec. (a)(5) to (7). Pub. L. 98–614, §5(a)(2), added par. (5) and redesignated former pars. (5) and (6) as (6) and (7), respectively.

Subsec. (b). Pub. L. 98–614, §2(a), substituted "(in accordance with section 903(b)) on or before December 31, 1984" for "within four years of the date of enactment of the Reorganization Act of 1977".

1980—Subsec. (b). Pub. L. 96–230 substituted "four years" for "three years".

1977—Subsec. (a)(1). Pub. L. 95–17 substituted "an executive department or independent regulatory agency," for "an Executive department" and "or more executive departments or two or more independent regulatory agencies," for "or more Executive departments".

Subsec. (a)(6), (7). Pub. L. 95–17 redesignated par. (7) as (6). Former par. (6), which related to limitation on reorganization plans that have effect of transferring to or consolidating with another agency the government of the District of Columbia or all the functions thereof which are subject to this chapter, or abolishing that government or all those functions, was struck out.

Subsec. (b). Pub. L. 95–17 substituted "within three years of the date of enactment of the Reorganization Act of 1977" for "before April 1, 1973".

1971—Subsec. (a)(7). Pub. L. 92–179, §4(a), added par. (7).

Subsec. (b). Pub. L. 92–179, §4(b), substituted "April 1, 1973" for "April 1, 1971".

1969—Subsec. (b). Pub. L. 91–5 substituted "April 1, 1971" for "December 31, 1968".

Statutory Notes and Related Subsidiaries

Plan for Transportation Department Reorganization

Pub. L. 104–50, title III, §335, Nov. 15, 1995, 109 Stat. 458, provided in part that, notwithstanding section 905(b) of this section, the President could prepare and transmit to Congress not later than the date for transmittal of the Budget Request for Fiscal Year 1997, a reorganization plan, pursuant to chapter 9 of this title, for the Department of Transportation surface transportation activities and the relationship of the Saint Lawrence Seaway Development Corporation to the Department.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 396; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 32; Pub. L. 98–614, §3(a), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)–(c)	5 U.S.C. 133z–4.	June 20, 1949, ch. 226, §6, 63 Stat. 205. Sept. 4, 1957, Pub. L. 85–286, §2, 71 Stat. 611.
(d)	5 U.S.C. 133z–9.	June 20, 1949, ch. 226, §11, 63 Stat. 206.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Subsec. (a). Pub. L. 98–614, §3(a)(1), struck out "otherwise" before "provided under subsection (c)", substituted "shall be" for "is" before "effective", and substituted "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" for "at the end of the first period of sixty calendar days of continuous session of Congress after the date on which the plan is transmitted to it unless, between the date of transmittal and the end of the sixty-day period, either House passes a resolution stating in substance that the House does not favor the reorganization plan."

Subsec. (c). Pub. L. 98–614, §3(a)(2), struck out before period at end "or, if both Houses of Congress have defeated a resolution of disapproval, may be effective at a time earlier than the expiration of the sixty-day period required by subsection (a)".

1977—Subsec. (a). Pub. L. 95–17 substituted "sixty" for "60" in two places.

Subsec. (b). Pub. L. 95–17 substituted in provisions preceding par. (1) "this chapter" for "subsection (a) of this section" and in par. (2) "any period of time in which Congress is in continuous session" for "the 60-day period".

Subsec. (c). Pub. L. 95–17 inserted provision that if both Houses of Congress have defeated a resolution of disapproval, the provision of a reorganization plan may be effective at a time earlier than the expiration of the sixty-day period required by subsec. (a).

Subsec. (d). Pub. L. 95–17 reenacted subsec. (d) without change.

Statutory Notes and Related Subsidiaries

Ratification and Affirmation of Prior Reorganization Plans as Law; Actions Taken Pursuant to Such Plans

Pub. L. 98–532, Oct. 19, 1984, 98 Stat. 2705, provided that:

"Section 1. The Congress hereby ratifies and affirms as law each reorganization plan that has, prior to the date of enactment of this Act [Oct. 19, 1984], been implemented pursuant to the provisions of chapter 9 of title 5, United States Code, or any predecessor Federal reorganization statute.

"Sec. 2. Any actions taken prior to the date of enactment of this Act [Oct. 19, 1984] pursuant to a reorganization plan that is ratified and affirmed by section 1 shall be considered to have been taken pursuant to a reorganization expressly approved by Act of Congress."

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 396; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 32.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)–(c)	5 U.S.C. 133z–7.	June 20, 1949, ch. 226, §9, 63 Stat. 206.
(d)	5 U.S.C. 133z–8.	June 20, 1949, ch. 226, §10, 63 Stat. 206.

In subsections (a) and (c), the words "the provisions of" in the phrase "under this chapter" are omitted as unnecessary.

In subsection (c), the words "the suit, action, or other proceeding" are substituted for "the same".

In subsection (d), the words "shall revert" are substituted for "shall be . . . returned", and the words "impounded and" are omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1977—Subsecs. (a), (b). Pub. L. 95–17 reenacted subsecs. (a) and (b) without change.

Subsec. (c). Pub. L. 95–17 substituted "twelve months" for "12 months".

Subsec. (d). Pub. L. 95–17 reenacted subsec. (d) without change.

§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 ¹) 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 33; Pub. L. 98–614, §2(b), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–10.	June 20, 1949, ch. 226, §201, 63 Stat. 206.

The words "Sections 909–913 of this title" are substituted for "The following sections of this title" to reflect the codification of sections 202–206 of Title II of the Act of June 20, 1949.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Par. (1). Pub. L. 98–614 substituted "with respect to any reorganization plans transmitted to Congress (in accordance with section 903(b) of this chapter) on or before December 31, 1984" for "described in section 909 of this title".

1977—Pub. L. 95–17 substituted "Sections 909 through 912 of this title" for "Sections 909–913 of this title" in provisions preceding par. (1).

¹ So in original. Probably should be "title".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 33; Pub. L. 98–614, §3(c), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–11.	June 20, 1949, ch. 226, §202, 63 Stat. 207.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Section 903(c) of this chapter, referred to in text, means section 903(c) of this title.

Amendments

1984—Pub. L. 98–614 substituted "a joint resolution of the Congress" for "a resolution of either House of Congress", and "the Congress approves" for "the     does not favor".

1977—Pub. L. 95–17 substituted "sections 908 through 912 of this title" for "sections 908–913 of this title" and provision that the blank spaces are to be appropriately filled for provision that the first blank space is to be filled with the name of the resolving House and the other blank spaces are to be appropriately filled and inserted provision that "resolution" includes such modifications and revisions as are submitted by the President under section 903(c) of this chapter.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 33; Pub. L. 98–614, §3(b)(3), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–12.	June 20, 1949, ch. 226, §203, 63 Stat. 207.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Subsec. (b). Pub. L. 98–614 substituted "75 calendar days" for "45 calendar days".

1977—Pub. L. 95–17 substituted "Introduction and reference of resolution" for "Reference of resolution to committee" in section catchline, designated existing provisions as subsec. (b), substituted "the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House" for "a committee" and inserted requirement that the Committee shall make its recommendation to the House or Senate within 45 calendar days of continuous session of Congress following the date of a resolution's introduction, and added subsec. (a).

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 92–179, §5, Dec. 10, 1971, 85 Stat. 576; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 34; Pub. L. 98–614, §3(b)(4), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–13.	June 20, 1949, ch. 226, §204, 63 Stat. 207.

In subsection (a), the words "at the end of 10 calendar days . . . it is" are substituted for "before the expiration of ten calendar days . . . it shall then (but not before) be".

In subsection (b), the words "A motion to discharge" are substituted for "Such motion".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Pub. L. 98–614 substituted "75 calendar days" for "45 calendar days".

1977—Pub. L. 95–17 substituted provisions deeming the committee discharged from further consideration of a resolution where that committee has not reported the resolution within 45 days of continuous session of Congress after the resolution's introduction for provisions permitting a motion to discharge a committee where the committee considering a resolution has not reported the resolution within 20 calendar days after the resolution's introduction, provisions permitting a motion to discharge to be made only by an individual favoring the resolution and limiting debate to 1 hour, and provisions prohibiting a renewal of a motion to discharge where the original motion was agreed to or disagreed to or the making of another motion with respect to a resolution from the same reorganization plan.

1971—Subsec. (a). Pub. L. 92–179 substituted "20 calendar days" for "10 calendar days".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 398; Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 34; Pub. L. 98–614, §3(d), (e)(1), (2), Nov. 8, 1984, 98 Stat. 3193.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 133z–14.	June 20, 1949, ch. 226, §205, 63 Stat. 207.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1984—Pub. L. 98–614, §3(e)(2), substituted "passage" for "disapproval" in section catchline.

Subsec. (b). Pub. L. 98–614, §3(d)(1), substituted "passed or rejected" for "agreed to or disagreed to".

Subsec. (c). Pub. L. 98–614, §3(d)(2), substituted "final passage" for "final approval".

Subsec. (e). Pub. L. 98–614, §3(e)(1), added subsec. (e).

1977—Pub. L. 95–17 inserted "; vote on final disapproval" after "debate" in section catchline.

Subsec. (a). Pub. L. 95–17 inserted provisions that a motion to discharge a committee is not subject to a motion to postpone or to a motion to proceed to the consideration of other business and that 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.

Subsec. (b). Pub. L. 95–17 inserted provisions that a motion to postpone or a motion to proceed to the consideration of other business is not in order.

Subsec. (c). Pub. L. 95–17 added subsec. (c).

Subsec. (d). Pub. L. 95–17 added subsec. (d) which provisions were formerly set out in section 913(b) of this title.

[§913. Omitted]

Editorial Notes

Codification

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 398, providing for decision without debate with respect to motions to postpone, motions to proceed to the consideration of other business, and appeals from decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, was omitted in the general amendment of this chapter by Pub. L. 95–17, §2, Apr. 6, 1977, 91 Stat. 29. See section 912 of this title.

CHAPTER 10—FEDERAL ADVISORY COMMITTEES

        

§1001. Definitions

In this chapter:

(1) Administrator.—The term "Administrator" means the Administrator of General Services.

(2) Advisory committee.—

(A) In general.—The term "advisory committee" means a committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee") that is established or utilized to obtain advice or recommendations for the President or one or more agencies or officers of the Federal Government and that is—

(i) established by statute or reorganization plan;

(ii) established or utilized by the President; or

(iii) established or utilized by one or more agencies.

(B) Exclusions.—The term "advisory committee" excludes—

(i) a committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government; and

(ii) a committee that is created by the National Academy of Sciences or the National Academy of Public Administration.

(3) Agency.—The term "agency" has the meaning given the term in section 551 of this title.

(4) Presidential advisory committee.—The term "Presidential advisory committee" means an advisory committee that advises the President.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4197.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1001	5 U.S.C. App. (FACA §3)	Pub. L. 92–463, §3, Oct. 6, 1972, 86 Stat. 770; Pub. L. 105–153, §2(a), Dec. 17, 1997, 111 Stat. 2689.

[Although not mentioned in the explanation contained in H. Rept. 117–193, in par. (1), " 'Administrator' means the Administrator of General Services" substituted for " 'Director' means the Director of the Office of Management and Budget" because of section 5F of Reorganization Plan No. 1 of 1977 (5 U.S.C. App.).]

Statutory Notes and Related Subsidiaries

Short Title of 1997 Act

Pub. L. 105–153, §1, Dec. 17, 1997, 111 Stat. 2689, provided that: "This Act [see Tables for classification] may be cited as the 'Federal Advisory Committee Act Amendments of 1997'."

Short Title of 1972 Act

Pub. L. 92–463, §1, Oct. 6, 1972, 86 Stat. 770, provided that: "This Act [see Tables for classification] may be cited as the 'Federal Advisory Committee Act'."

§1002. Findings and declarations

(a) Findings.—Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government.

(b) Findings and Declarations.—Congress further finds and declares that—

(1) the need for many existing advisory committees has not been adequately reviewed;

(2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary;

(3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established;

(4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees;

(5) Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and

(6) the function of advisory committees should be advisory only, and all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4198.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1002	5 U.S.C. App. (FACA §2)	Pub. L. 92–463, §2, Oct. 6, 1972, 86 Stat. 770.

Executive Documents

Executive Order No. 11007

Ex. Ord. No. 11007, Feb. 27, 1962, 27 F.R. 1875, which related to regulations for formation and use of advisory committees, was superseded by Ex. Ord. No. 11671, June 5, 1972, 37 F.R. 11307.

Executive Order No. 11671

Ex. Ord. No. 11671, June 5, 1972, 37 F.R. 11307, which related to committee management, was superseded by Ex. Ord. No. 11686, Oct. 7, 1972, 37 F.R. 21421.

Executive Order No. 11686

Ex. Ord. No. 11686, Oct. 7, 1972, 37 F.R. 21421, which related to committee management, was superseded by Ex. Ord. No. 11769, Feb. 21, 1974, 39 F.R. 7125.

Executive Order No. 11769

Ex. Ord. No. 11769, Feb. 21, 1974, 39 F.R. 7125, which related to committee management, was revoked by Ex. Ord. No. 12024, Dec. 1, 1977, 42 F.R. 61445, set out below.

Ex. Ord. No. 12024. Transfer of Certain Advisory Committee Functions

Ex. Ord. No. 12024, Dec. 1, 1977, 42 F.R. 61445, provided:

By virtue of the authority vested in me by the Constitution and statutes of the United States of America, including the Federal Advisory Committee Act, as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], Section 301 of Title 3 of the United States Code, Section 202 of the Budget and Accounting Procedures Act of 1950 (31 U.S.C. 581c) [31 U.S.C. 1531], and Section 7 of Reorganization Plan No. 1 of 1977 (42 F.R. 56101 (October 21, 1977)) [set out in the Appendix to this title], and as President of the United States of America, in accord with the transfer of advisory committee functions from the Office of Management and Budget to the General Services Administration provided by Reorganization Plan No. 1 of 1977, it is hereby ordered as follows:

Section 1. The transfer, provided by Section 5F of Reorganization Plan No. 1 of 1977 (42 F.R. 56101) [set out in the Appendix to this title], of certain functions under the Federal Advisory Committee Act, as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], from the Office of Management and Budget and its Director to the Administrator of General Services is hereby effective.

Sec. 2. There is hereby delegated to the Administrator of General Services all the functions vested in the President by the Federal Advisory Committee Act, as amended, except that, the annual report to the Congress required by Section 6(c) of that Act shall be prepared by the Administrator for the President's consideration and transmittal to the Congress.

Sec. 3. The Director of the Office of Management and Budget shall take all actions necessary or appropriate to effectuate the transfer of functions provided in this Order, including the transfer of funds, personnel and positions, assets, liabilities, contracts, property, records, and other items related to the functions transferred.

Sec. 4. Executive Order No. 11769 of February 21, 1974 is hereby revoked.

Sec. 5. Any rules, regulations, orders, directives, circulars, or other actions taken pursuant to the functions transferred or reassigned as provided in this Order from the Office of Management and Budget to the Administrator of General Services, shall remain in effect as if issued by the Administrator until amended, modified, or revoked.

Sec. 6. This Order shall be effective November 20, 1977.

Jimmy Carter.      

Lobbyists on Agency Boards and Commissions

Memorandum of President of the United States, June 18, 2010, 75 F.R. 35955, provided:

Memorandum for the Heads of Executive Departments and Agencies

My Administration is committed to reducing the undue influence of special interests that for too long has shaped the national agenda and drowned out the voices of ordinary Americans. Special interests exert this disproportionate influence, in part, by relying on lobbyists who have special access that is not available to all citizens. Although lobbyists can sometimes play a constructive role by communicating information to the government, their service in privileged positions within the executive branch can perpetuate the culture of special-interest access that I am committed to changing.

On the day after my inauguration, I signed Executive Order 13490, which places strict limits on the ability of lobbyists to serve in Government positions related to their prior lobbying activities. Last September, we took another step to close the revolving door through which lobbyists enter and exit Government positions when we announced that my Administration aspires to keep Federal agencies' advisory boards free of federally registered lobbyists. Many departments and agencies are making this aspiration a reality by no longer placing federally registered lobbyists on advisory boards—a practice that I am now establishing as the official policy of my Administration.

Accordingly, I hereby direct the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees and other boards and commissions. Within 90 days of the date of this memorandum, the Director of the Office of Management and Budget shall issue proposed guidance designed to implement this policy to the full extent permitted by law. The final guidance shall be issued following public comment on the proposed guidance.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

§1003. Applicability

(a) In General.—This chapter, and any rule, order, or regulation promulgated under this chapter, shall apply to each advisory committee except to the extent that the Act establishing the advisory committee specifically provides otherwise.

(b) Exemptions Relating to Certain Federal Entities.—Nothing in this chapter shall be construed to apply to an advisory committee established or utilized by—

(1) the Central Intelligence Agency;

(2) the Federal Reserve System; or

(3) the Office of the Director of National Intelligence, if the Director of National Intelligence determines that for reasons of national security the advisory committee cannot comply with the requirements of this chapter.

(c) Exemptions Relating to Certain Local and State Entities.—Nothing in this chapter shall be construed to apply to any local civic group whose primary function is that of rendering a public service with respect to a Federal program, or any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4198.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1003	5 U.S.C. App. (FACA §4)	Pub. L. 92–463, §4, Oct. 6, 1972, 86 Stat. 771; Pub. L. 111–259, title IV, §410(a), Oct. 7, 2010, 124 Stat. 2724.

§1004. Responsibilities of congressional committees

(a) Review of Activities.—In the exercise of its legislative review function, each standing committee of the Senate and the House of Representatives shall make a continuing review of the activities of each advisory committee under its jurisdiction to determine whether such advisory committee should be abolished or merged with any other advisory committee, whether the responsibilities of such advisory committee should be revised, and whether such advisory committee performs a necessary function not already being performed. Each such standing committee shall take appropriate action to obtain the enactment of legislation necessary to carry out the purpose of this subsection.

(b) Consideration of Legislation.—In considering legislation establishing, or authorizing the establishment of any advisory committee, each standing committee of the Senate and of the House of Representatives shall determine, and report such determination to the Senate or to the House of Representatives, as the case may be, whether the functions of the proposed advisory committee are being or could be performed by one or more agencies or by an advisory committee already in existence, or by enlarging the mandate of an existing advisory committee. Any such legislation shall—

(1) contain a clearly defined purpose for the advisory committee;

(2) require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee;

(3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment;

(4) contain provisions dealing with authorization of appropriations, the date for submission of reports (if any), the duration of the advisory committee, and the publication of reports and other materials, to the extent that the standing committee determines the provisions of section 1009 of this chapter to be inadequate; and

(5) contain provisions which will assure that the advisory committee will have adequate staff (either supplied by an agency or employed by it), will be provided adequate quarters, and will have funds available to meet its other necessary expenses.

(c) Adherence to Guidelines.—To the extent they are applicable, the guidelines set out in subsection (b) shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4198.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1004	5 U.S.C. App. (FACA §5)	Pub. L. 92–463, §5, Oct. 6, 1972, 86 Stat. 771.

§1005. Responsibilities of the President

(a) Delegation.—The President may delegate responsibility for evaluating and taking action, where appropriate, with respect to all public recommendations made to the President by Presidential advisory committees.

(b) Report on Response to Recommendations.—Within 1 year after a Presidential advisory committee submits a public report to the President, the President or the President's delegate shall submit to Congress a report stating either proposals for action or reasons for inaction, with respect to the recommendations contained in the public report.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4199.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1005	5 U.S.C. App. (FACA §6(a), (b))	Pub. L. 92–463, §6(a), (b), Oct. 6, 1972, 86 Stat. 772.

§1006. Responsibilities of the Administrator

(a) Committee Management Secretariat.—The Administrator shall establish and maintain within the General Services Administration a Committee Management Secretariat, which shall be responsible for all matters relating to advisory committees.

(b) Annual Reviews.—

(1) In general.—Each year, the Administrator shall conduct a comprehensive review of the activities and responsibilities of each advisory committee to determine—

(A) whether the committee is carrying out its purpose;

(B) whether, consistent with the provisions of applicable statutes, the responsibilities assigned to the committee should be revised;

(C) whether the committee should be merged with other advisory committees; or

(D) whether the committee should be abolished.

(2) Obtaining information.—The Administrator may from time to time request such information as the Administrator deems necessary to carry out functions under this subsection. Agency heads shall cooperate with the Administrator in making the reviews required by this subsection.

(3) Recommendations.—Upon completion of the review, the Administrator shall make recommendations to the President and to either the agency head or Congress with respect to action the Administrator believes should be taken.

(c) Administrative Guidelines and Management Controls.—The Administrator shall prescribe administrative guidelines and management controls applicable to advisory committees, and, to the maximum extent feasible, provide advice, assistance, and guidance to advisory committees to improve their performance. In carrying out functions under this subsection, the Administrator shall consider the recommendations of each agency head with respect to means of improving the performance of advisory committees whose duties are related to the agency.

(d) Guidelines for Uniform Fair Pay Rates.—

(1) In general.—The Administrator, after study and consultation with the Director of the Office of Personnel Management, shall establish guidelines with respect to uniform fair rates of pay for comparable services of members, staffs, and consultants of advisory committees in a manner that gives appropriate recognition to the responsibilities and qualifications required and other relevant factors. The guidelines shall provide that—

(A) a member of an advisory committee or of the staff of an advisory committee shall not receive compensation at a rate in excess of the maximum rate payable under section 5376 of this title;

(B) members of advisory committees, while engaged in the performance of their duties away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of this title for persons employed intermittently in the Government service; and

(C) members of advisory committees may be provided services pursuant to section 3102 of this title while in performance of their advisory committee duties if the members—

(i) are blind or deaf or otherwise qualify as individuals with disabilities (within the meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791)); and

(ii) do not otherwise qualify for assistance under section 3102 of this title by reason of being an employee of an agency (within the meaning of section 3102(a)(1) of this title).

(2) Pay for full-time employees.—Nothing in this subsection shall prevent an individual from receiving compensation at the rate at which the individual would otherwise be compensated (or was compensated) as a full-time employee of the United States if the individual—

(A) is a full-time employee of the United States without regard to service with an advisory committee; or

(B) was a full-time employee of the United States immediately before service with an advisory committee.

(e) Budget Recommendations.—The Administrator shall include in budget recommendations a summary of the amounts the Administrator considers necessary for the expenses of advisory committees, including the expenses for publication of reports where appropriate.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4199.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1006	5 U.S.C. App. (FACA §7)	Pub. L. 92–463, §7, Oct. 6, 1972, 86 Stat. 772; Pub. L. 96–523, §2, Dec. 12, 1980, 94 Stat. 3040.

In this section, the words "Administrator" and "General Services Administration" are substituted for "Director" and "Office of Management and Budget", respectively, because of section 5F of Reorganization Plan No. 1 of 1977 (5 U.S.C. App.).

In subsection (b)(1), the words "Each year, the Administrator shall conduct a comprehensive review" are substituted for "The Administrator shall, immediately after the enactment of this Act [October 6, 1972], institute a comprehensive review" and "Thereafter, the Administrator shall carry out a similar review annually" to eliminate obsolete language.

In subsection (d)(1) (matter before subparagraph (A)), the words "Director of the Office of Personnel Management" are substituted for "Civil Service Commission" because of section 102 of Reorganization Plan No. 2 of 1978 (5 U.S.C. App.).

In subsection (d)(1) (matter before subparagraph (A)), the words "The guidelines shall provide" are substituted for "The regulations shall provide" for consistency with the 1st sentence of subsection (d)(1), which provides that the Administrator shall establish "guidelines", not regulations.

In subsection (d)(1)(A), the words "maximum rate payable under section 5376 of this title" are substituted for "rate specified for GS–18 of the General Schedule under section 5332 of title 5, United States Code" for clarity and because of section 101(c) of the Federal Employees Pay Comparability Act of 1990 (enacted by section 529 of Public Law 101–509 (5 U.S.C. 5376 note)).

In subsection (d)(1)(C)(i), the words "individuals with disabilities" are substituted for "handicapped individuals" for consistency with section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).

In subsection (d)(1)(C)(i), the citation to "(29 U.S.C. 791)" is substituted for "(29 U.S.C. 794)" to correct an error in the law.

§1007. Responsibilities of agency heads

(a) Administrative Guidelines and Management Controls.—Each agency head shall establish uniform administrative guidelines and management controls for advisory committees established by that agency, which shall be consistent with directives of the Administrator under sections 1006 and 1009 of this title. Each agency shall maintain systematic information on the nature, functions, and operations of each advisory committee within its jurisdiction.

(b) Advisory Committee Management Officer.—The head of each agency that has an advisory committee shall designate an Advisory Committee Management Officer who shall—

(1) exercise control and supervision over the establishment, procedures, and accomplishments of advisory committees established by the agency;

(2) assemble and maintain the reports, records, and other papers of any advisory committee established by the agency during the advisory committee's existence; and

(3) carry out, on behalf of the agency, the provisions of section 552 of this title with respect to such reports, records, and other papers.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4201.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1007	5 U.S.C. App. (FACA §8)	Pub. L. 92–463, §8, Oct. 6, 1972, 86 Stat. 773.

In subsection (a), the word "Administrator" is substituted for "Director" (meaning the Director of the Office of Management and Budget) because of section 5F of Reorganization Plan No. 1 of 1977 (5 U.S.C. App.).

§1008. Establishment and purpose of advisory committees

(a) Establishment.—An advisory committee shall not be established unless establishment is—

(1) specifically authorized by statute or by the President; or

(2) determined as a matter of formal record, by the head of the agency involved after consultation with the Administrator, with timely notice published in the Federal Register, to be in the public interest in connection with the performance of duties imposed on that agency by law.

(b) Purpose of Advisory Committees.—Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions. Determinations of action to be taken and policy to be expressed with respect to matters upon which an advisory committee reports or makes recommendations shall be made solely by the President or an officer of the Federal Government.

(c) Advisory Committee Charters.—

(1) General requirement.—An advisory committee shall not meet or take any action until an advisory committee charter has been filed—

(A) with the Administrator in the case of Presidential advisory committees; or

(B) with—

(i) the head of the agency to whom the advisory committee reports; and

(ii) the standing committees of the Senate and House of Representatives having legislative jurisdiction over the agency to which the advisory committee reports.

(2) Contents of charter.—The advisory committee charter shall contain—

(A) the committee's official designation;

(B) the committee's objectives and the scope of its activity;

(C) the period of time necessary for the committee to carry out its purposes;

(D) the agency or official to whom the committee reports;

(E) the agency responsible for providing the necessary support for the committee;

(F) a description of the duties for which the committee is responsible, and, if the duties are not solely advisory, a specification of the authority for the duties;

(G) the estimated annual operating costs for the committee in dollars and person-years;

(H) the estimated number and frequency of committee meetings;

(I) the committee's termination date, if less than 2 years from the date of the committee's establishment; and

(J) the date the charter is filed.

(3) Copy of charter to library of congress.—A copy of the advisory committee charter shall be furnished to the Library of Congress.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4201.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1008	5 U.S.C. App. (FACA §9)	Pub. L. 92–463, §9, Oct. 6, 1972, 86 Stat. 773.

In subsection (a)(2) and subsection (c)(1)(A), the word "Administrator" is substituted for "Director" (meaning the Director of the Office of Management and Budget) because of section 5F of Reorganization Plan No. 1 of 1977 (5 U.S.C. App.).

§1009. Advisory committee procedures

(a) Committee Meetings.—

(1) Open to public.—Each advisory committee meeting shall be open to the public.

(2) Notice of meetings.—Except when the President determines otherwise for reasons of national security, timely notice of each meeting shall be published in the Federal Register, and the Administrator shall prescribe regulations to provide for other types of public notice to insure that all interested persons are notified of each meeting in advance.

(3) Participation.—Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Administrator may prescribe.

(b) Public Inspection and Copying of Records.—Subject to section 552 of this title, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.

(c) Minutes.—Detailed minutes of each meeting of each advisory committee shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the advisory committee. The accuracy of all minutes shall be certified by the chairman of the advisory committee.

(d) Closed Sessions.—Paragraphs (1) and (3) of subsection (a) shall not apply to any portion of an advisory committee meeting for which the President, or the head of the agency to which the advisory committee reports, determines that such portion of the meeting may be closed to the public in accordance with section 552b(c) of this title. Any such determination shall be in writing and shall contain the reasons for the determination. If such a determination is made, the advisory committee shall issue a report, at least annually, setting forth a summary of its activities and such related matters as would be informative to the public consistent with the policy of section 552(b) of this title.

(e) Designated Officer or Employee of Federal Government.—There shall be designated an officer or employee of the Federal Government to chair or attend each meeting of each advisory committee. The officer or employee so designated is authorized, whenever the officer or employee determines it to be in the public interest, to adjourn any such meeting. An advisory committee shall not conduct any meeting in the absence of that designated officer or employee of the Federal Government.

(f) Call for Meeting or Advance Approval.—Advisory committees shall not hold any meetings except at the call of, or with the advance approval of, a designated officer or employee of the Federal Government, and in the case of advisory committees (other than Presidential advisory committees), with an agenda approved by such officer or employee.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4202.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1009	5 U.S.C. App. (FACA §10)	Pub. L. 92–463, §10, Oct. 6, 1972, 86 Stat. 774; Pub. L. 94–409, §5(c), Sept. 13, 1976, 90 Stat. 1247.

In subsection (a), in paragraphs (2) and (3), the word "Administrator" is substituted for "Director" (meaning the Director of the Office of Management and Budget) because of section 5F of Reorganization Plan No. 1 of 1977 (5 U.S.C. App.).

§1010. Availability of transcripts

(a) Definition of Agency Proceeding.—In this section, the term "agency proceeding" has the meaning given the term in section 551 of this title.

(b) Availability.—Agencies and advisory committees shall make available to any person, at actual cost of duplication, copies of transcripts of any agency proceeding or advisory committee meeting.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4203.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1010	5 U.S.C. App. (FACA §11)	Pub. L. 92–463, §11, Oct. 6, 1972, 86 Stat. 775.

In subsection (b), the words "Except where prohibited by contractual agreements entered into prior to the effective date of this Act [i.e., 90 days after October 6, 1972]" are omitted as obsolete.

§1011. Fiscal and administrative provisions

(a) Records.—Each agency shall keep records that fully disclose the disposition of any funds which may be at the disposal of its advisory committees and the nature and extent of their activities. The General Services Administration, or such other agency as the President may designate, shall maintain financial records with respect to Presidential advisory committees. The Comptroller General of the United States, or any authorized representative of the Comptroller General, shall have access to the records for the purpose of audit and examination.

(b) Support Services.—Each agency shall be responsible for providing support services for each advisory committee established by or reporting to it unless the establishing authority provides otherwise. If an advisory committee reports to more than one agency, only one agency at a time shall be responsible for support services. In the case of Presidential advisory committees, support services may be provided by the General Services Administration.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4203.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1011	5 U.S.C. App. (FACA §12)	Pub. L. 92–463, §12, Oct. 6, 1972, 86 Stat. 775.

§1012. Responsibilities of Library of Congress

Subject to section 552 of this title, the Administrator shall provide for the filing with the Library of Congress of at least 8 copies of each report made by each advisory committee and, where appropriate, background papers prepared by consultants. The Librarian of Congress shall establish a depository for the reports and papers and make them available for public inspection and use.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4204.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1012	5 U.S.C. App. (FACA §13)	Pub. L. 92–463, §13, Oct. 6, 1972, 86 Stat. 775.

In this section, the word "Administrator" is substituted for "Director" (meaning the Director of the Office of Management and Budget) because of section 5F of Reorganization Plan No. 1 of 1977 (5 U.S.C. App.).

§1013. Termination of advisory committees

(a) In General.—

(1) Advisory committees in existence on january 5, 1973.—Each advisory committee that is in existence on January 5, 1973, shall terminate not later than the expiration of the 2-year period following that date unless—

(A) in the case of an advisory committee established by the President or an officer of the Federal Government, such advisory committee is renewed by the President or that officer by appropriate action prior to the expiration of such 2-year period; or

(B) in the case of an advisory committee established by an Act of Congress, its duration is otherwise provided for by law.

(2) Advisory committees established after january 5, 1973.—Each advisory committee established after January 5, 1973, shall terminate not later than the expiration of the 2-year period beginning on the date of its establishment unless—

(A) in the case of an advisory committee established by the President or an officer of the Federal Government ¹ such advisory committee is renewed by the President or such officer by appropriate action prior to the end of such period; or

(B) in the case of an advisory committee established by an Act of Congress, its duration is otherwise provided for by law.

(b) Charters.—

(1) Upon renewal.—Upon the renewal of an advisory committee, the advisory committee shall file a charter in accordance with section 1008(c) of this title.

(2) Upon expiration of successive 2-year periods.—An advisory committee established by an Act of Congress shall file a charter in accordance with section 1008(c) of this title upon the expiration of each successive 2-year period following the date of enactment of the Act establishing the advisory committee.

(3) Prohibition on action prior to filing charter.—An advisory committee required to file a charter under this subsection shall not take any action (other than preparation and filing of the charter) prior to the date on which the charter is filed.

(c) Successive Two-Year Periods.—An advisory committee that is renewed by the President or an officer of the Federal Government may be continued only for successive 2-year periods by appropriate action taken by the President or the officer prior to the date on which the advisory committee would otherwise terminate.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4204.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1013	5 U.S.C. App. (FACA §14)	Pub. L. 92–463, §14, Oct. 6, 1972, 86 Stat. 776.

In subsection (a)(1) (matter before subparagraph (A)), the date "January 5, 1973" is substituted for "the effective date of this Act", and in subsection (a)(2) (matter before subparagraph (A)), the date "January 5, 1973" is substituted for "such effective date", for clarity. In accordance with section 16 (formerly section 15) of the Federal Advisory Committee Act (Public Law 92–463, 86 Stat. 776), which provides "this Act shall become effective upon the expiration of ninety days following the date of enactment", the effective date of the Act is January 5, 1973.

Executive Documents

Continuance of Certain Federal Advisory Committees

Ex. Ord. No. 14109, Sept. 29, 2023, 88 F.R. 68447, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and consistent with chapter 10 of title 5, United States Code (commonly known as the Federal Advisory Committee Act), it is hereby ordered as follows:

Section 1. Each advisory committee listed below is continued until September 30, 2025.

(a) Committee for the Preservation of the White House; Executive Order 11145, as amended [3 U.S.C. 110 note] (Department of the Interior).

(b) President's Commission on White House Fellowships; Executive Order 11183, as amended (Office of Personnel Management).

(c) President's Committee on the National Medal of Science; Executive Order 11287, as amended [42 U.S.C. 1881 note] (National Science Foundation).

(d) Federal Advisory Council on Occupational Safety and Health; Executive Order 11612, as amended [see Ex. Ord. No. 12196, 5 U.S.C. 7902 note] (Department of Labor).

(e) President's Export Council; Executive Order 12131, as amended [50 U.S.C. 4601 note] (Department of Commerce).

(f) President's Committee on the International Labor Organization; Executive Order 12216, as amended [22 U.S.C. 271 note] (Department of Labor).

(g) President's National Security Telecommunications Advisory Committee; Executive Order 12382, as amended [47 U.S.C. 901 note] (Department of Homeland Security).

(h) National Industrial Security Program Policy Advisory Committee; Executive Order 12829, as amended [50 U.S.C. 3161 note] (National Archives and Records Administration).

(i) Trade and Environment Policy Advisory Committee; Executive Order 12905 [19 U.S.C. 2155 note] (Office of the United States Trade Representative).

(j) Governmental Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 [19 U.S.C. 3472 note] (Environmental Protection Agency).

(k) National Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 [19 U.S.C. 3472 note] (Environmental Protection Agency).

(l) Good Neighbor Environmental Board; Executive Order 12916, as amended [19 U.S.C. 3473 note] (Environmental Protection Agency).

(m) Presidential Advisory Council on HIV/AIDS; Executive Order 12963, as amended [42 U.S.C. 300cc–1 note] (Department of Health and Human Services).

(n) President's Committee for People with Intellectual Disabilities; Executive Order 12994, as amended [42 U.S.C. 15001 note] (Department of Health and Human Services).

(o) Invasive Species Advisory Committee; Executive Order 13112, as amended [42 U.S.C. 4321 note] (Department of the Interior).

(p) Advisory Board on Radiation and Worker Health; Executive Order 13179 [42 U.S.C. 7384 note] (Department of Health and Human Services).

(q) National Infrastructure Advisory Council; Executive Order 13231, as amended [6 U.S.C. 121 note] (Department of Homeland Security).

(r) President's Council on Sports, Fitness, and Nutrition; Executive Order 13265, as amended [42 U.S.C. 300u note] (Department of Health and Human Services).

(s) Interagency Task Force on Veterans Small Business Development; Executive Order 13540 [15 U.S.C. 657b note] (Small Business Administration).

(t) State, Local, Tribal, and Private Sector (SLTPS) Policy Advisory Committee; Executive Order 13549 [50 U.S.C. 3161 note] (National Archives and Records Administration).

(u) President's Advisory Council on Doing Business in Africa; Executive Order 13675, as amended [15 U.S.C. 4727 note] (Department of Commerce).

(v) President's Council of Advisors on Science and Technology; Executive Order 14007, as amended [42 U.S.C. 6601 note] (Department of Energy).

(w) White House Environmental Justice Advisory Council; Executive Order 14008 [42 U.S.C. 4321 note] (Environmental Protection Agency).

(x) President's Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders; Executive Order 14031 [42 U.S.C. 3501 note] (Department of Health and Human Services).

(y) President's Board of Advisors on Historically Black Colleges and Universities; Executive Order 14041 [20 U.S.C. 1060 note] (Department of Education).

(z) Presidential Advisory Commission on Advancing Educational Equity, Excellence, and Economic Opportunity for Hispanics; Executive Order 14045 [20 U.S.C. 3411 note] (Department of Education).

(aa) Presidential Advisory Commission on Advancing Educational Equity, Excellence, and Economic Opportunity for Black Americans; Executive Order 14050 [20 U.S.C. 3411 note] (Department of Education).

(bb) President's Committee on the Arts and the Humanities; Executive Order 14084 [20 U.S.C. 9102 note] (Institute of Museum and Library Services).

(cc) President's Advisory Council on African Diaspora Engagement in the United States; Executive Order 14089 [22 U.S.C. 2656 note] (Department of State).

(dd) Commerce Spectrum Management Advisory Committee; initially established pursuant to Presidential Memorandum on Improving Spectrum Management for the 21st Century (November 29, 2004) (Department of Commerce).

(ee) Grand Staircase-Escalante National Monument Advisory Committee; Proclamation 6920 of September 18, 1996, as amended [listed in a table under 54 U.S.C. 320301] (Department of the Interior).

(ff) San Juan Islands National Monument Advisory Committee; Proclamation 8947 of March 25, 2013 [listed in a table under 54 U.S.C. 320301] (Department of the Interior).

(gg) Bears Ears National Monument Advisory Committee; Proclamation 9558 of December 28, 2016, as amended [listed in a table under 54 U.S.C. 320301] (Department of the Interior).

(hh) Gold Butte National Monument Advisory Committee; Proclamation 9559 of December 28, 2016 [listed in a table under 54 U.S.C. 320301] (Department of the Interior).

(ii) Avi Kwa Ame National Monument Advisory Committee; Proclamation 10533 of March 21, 2023 [listed in a table under 54 U.S.C. 320301] (Department of the Interior).

(jj) Baaj Nwaavjo I'tah Kukveni-Ancestral Footprints of the Grand Canyon National Monument Advisory Committee; Proclamation 10606 of August 8, 2023 [listed in a table under 54 U.S.C. 320301] (Department of the Interior).

(kk) National Space-Based Positioning, Navigation, and Timing Advisory Board; Space Policy Directive 7, "The United States Space-Based Positioning, Navigation, and Timing Policy" (January 15, 2021) (National Aeronautics and Space Administration).

Sec. 2. Notwithstanding the provisions of any other Executive Order, the functions of the President under chapter 10 of title 5, United States Code, that are applicable to the committees listed in section 1 of this order shall be performed by the head of the department or agency designated after each committee, in accordance with the regulations, guidelines, and procedures established by the Administrator of General Services.

Sec. 3. Sections 1 and 2 of Executive Order 14048 of September 30, 2021, are hereby superseded by sections 1 and 2 of this order.

Sec. 4. [Amended Ex. Ord. No. 14031, set out as a note under section 3501 of Title 42, The Public Health and Welfare.]

Sec. 5. [Amended Ex. Ord. No. 14084, set out as a note under section 9102 of Title 20, Education.]

Sec. 6. This order shall be effective September 30, 2023.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Provisions providing for the continuance of certain Federal advisory committees were contained in the following:

Ex. Ord. No. 14048, Sept. 30, 2021, 86 F.R. 55465, partially superseded by Ex. Ord. No. 14109, §3, Sept. 29, 2023, 88 F.R. 68449.

Ex. Ord. No. 13889, Sept. 27, 2019, 84 F.R. 52743, as amended by Ex. Ord. No. 13935, §4(a), July 9, 2020, 85 F.R. 42685, partially superseded by Ex. Ord. No. 14048, §3, Sept. 30, 2021, 86 F.R. 55466.

Ex. Ord. No. 13811, Sept. 29, 2017, 82 F.R. 46363, partially superseded by Ex. Ord. No. 13889, §3, Sept. 27, 2019, 84 F.R. 52745.

Ex. Ord. No. 13708, Sept. 30, 2015, 80 F.R. 60271, partially superseded by Ex. Ord. No. 13811, §3, Sept. 29, 2017, 82 F.R. 46365.

Ex. Ord. No. 13652, Sept. 30, 2013, 78 F.R. 61817, partially superseded by Ex. Ord. No. 13708, §3, Sept. 30, 2015, 80 F.R. 60273.

Ex. Ord. No. 13591, Nov. 23, 2011, 76 F.R. 74623, partially superseded by Ex. Ord. No. 13652, §3, Sept. 30, 2013, 78 F.R. 61818.

Ex. Ord. No. 13585, Sept. 30, 2011, 76 F.R. 62281, as amended by Ex. Ord. No. 13592, §5(c), Dec. 2, 2011, 76 F.R. 76607, partially superseded by Ex. Ord. No. 13652, §3, Sept. 30, 2013, 78 F.R. 61818.

Ex. Ord. No. 13511, Sept. 29, 2009, 74 F.R. 50909, partially superseded by Ex. Ord. No. 13585, §3, Sept. 30, 2011, 76 F.R. 62281.

Ex. Ord. No. 13446, Sept. 28, 2007, 72 F.R. 56175, partially superseded by Ex. Ord. No. 13511, §3, Sept. 29, 2009, 74 F.R. 50910.

Ex. Ord. No. 13385, Sept. 29, 2005, 70 F.R. 57989, partially superseded by Ex. Ord. No. 13446, §4, Sept. 28, 2007, 72 F.R. 56176.

Ex. Ord. No. 13316, Sept. 17, 2003, 68 F.R. 55255, partially superseded by Ex. Ord. No. 13385, §4, Sept. 29, 2005, 70 F.R. 57990.

Ex. Ord. No. 13225, Sept. 28, 2001, 66 F.R. 50291, superseded by Ex. Ord. No. 13316, §4, Sept. 17, 2003, 68 F.R. 55256.

Ex. Ord. No. 13138, Sept. 30, 1999, 64 F.R. 53879, as amended by Ex. Ord. No. 13226, §4(c), Sept. 30, 2001, 66 F.R. 50524, partially superseded by Ex. Ord. No. 13225, §4, Sept. 28, 2001, 66 F.R. 50292.

Ex. Ord. No. 13062, Sept. 29, 1997, 62 F.R. 51755, partially superseded by Ex. Ord. No. 13138, §4, Sept. 30, 1999, 64 F.R. 53880.

Ex. Ord. No. 12974, Sept. 29, 1995, 60 F.R. 51875, superseded by Ex. Ord. No. 13062, Sept. 29, 1997, 62 F.R. 51755.

Ex. Ord. No. 12869, Sept. 30, 1993, 58 F.R. 51751, as amended by Ex. Ord. No. 12882, §4(c), Nov. 23, 1993, 58 F.R. 62493, superseded by Ex. Ord. No. 12974, Sept. 29, 1995, 60 F.R. 51875.

Ex. Ord. No. 12774, Sept. 27, 1991, 56 F.R. 49835, superseded by Ex. Ord. No. 12869, §5, Sept. 30, 1993, 58 F.R. 51751.

Ex. Ord. No. 12692, Sept. 29, 1989, 54 F.R. 40627, as amended by Ex. Ord. No. 12704, Feb. 26, 1990, 55 F.R. 6969, superseded by Ex. Ord. No. 12774, §4, Sept. 27, 1991, 56 F.R. 49835.

Ex. Ord. No. 12610, Sept. 30, 1987, 52 F.R. 36901, superseded by Ex. Ord. No. 12692, Sept. 29, 1989, 54 F.R. 40627.

Ex. Ord. No. 12534, Sept. 30, 1985, 50 F.R. 40319, superseded by Ex. Ord. No. 12610, Sept. 30, 1987, 52 F.R. 36901.

Ex. Ord. No. 12489, Sept. 28, 1984, 49 F.R. 38927, superseded by Ex. Ord. No. 12534, Sept. 30, 1985, 50 F.R. 40319.

Ex. Ord. No. 12399, Dec. 31, 1982, 48 F.R. 379, superseded by Ex. Ord. No. 12534, Sept. 30, 1985, 50 F.R. 40319.

Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, as amended by Ex. Ord. No. 12271, Jan. 15, 1981, 46 F.R. 4677; Ex. Ord. No. 12299, Mar. 17, 1981, 46 F.R. 17751; Ex. Ord. No. 12305, May 5, 1981, 46 F.R. 25421; Ex. Ord. No. 12336, Dec. 21, 1981, 46 F.R. 62239, superseded by Ex. Ord. No. 12399, Dec. 31, 1982, 48 F.R. 379.

Ex. Ord. No. 12110, Dec. 28, 1978, 44 F.R. 1069, superseded by Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251.

Ex. Ord. No. 11948, Dec. 20, 1976, 41 F.R. 55705, as amended by Ex. Ord. No. 12007, Aug. 22, 1977, 42 F.R. 42839; Ex. Ord. No. 12029, Dec. 14, 1977, 42 F.R. 63631, superseded by Ex. Ord. No. 12110, Dec. 28, 1978, 44 F.R. 1069.

Ex. Ord. No. 11827, Jan. 4, 1975, 40 F.R. 1217, as amended by Ex. Ord. No. 11915, May 10, 1976, 41 F.R. 19195, superseded by Ex. Ord. No. 11948, Dec. 20, 1976, 41 F.R. 55705.

Ex. Ord. No. 12838. Termination and Limitation of Federal Advisory Committees

Ex. Ord. No. 12838, Feb. 10, 1993, 58 F.R. 8207, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Advisory Committee Act ("FACA"), as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], it is hereby ordered as follows:

Section 1. Each executive department and agency shall terminate not less than one-third of the advisory committees subject to FACA (and not required by statute) that are sponsored by the department or agency by no later than the end of fiscal year 1993.

Sec. 2. Within 90 days, the head of each executive department and agency shall submit to the Director of the Office of Management and Budget, for each advisory committee subject to FACA sponsored by that department or agency: (a) a detailed justification for the continued existence, or a brief description in support of the termination, of any advisory committee not required by statute; and (b) a detailed recommendation for submission to the Congress to continue or to terminate any advisory committee required by statute. The Administrator of General Services shall prepare such justifications and recommendations for each advisory committee subject to FACA and not sponsored by a department or agency.

Sec. 3. Effective immediately, executive departments and agencies shall not create or sponsor a new advisory committee subject to FACA unless the committee is required by statute or the agency head (a) finds that compelling considerations necessitate creation of such a committee, and (b) receives the approval of the Director of the Office of Management and Budget. Such approval shall be granted only sparingly and only if compelled by considerations of national security, health or safety, or similar national interests. These requirements shall apply in addition to the notice and other approval requirements of FACA.

Sec. 4. The Director of the Office of Management and Budget shall issue detailed instructions regarding the implementation of this order, including exemptions necessary for the delivery of essential services and compliance with applicable law.

Sec. 5. All independent regulatory commissions and agencies are requested to comply with the provisions of this order.

William J. Clinton.      

Termination of Certain Federal Advisory Committees

Provisions providing for the termination of certain Federal advisory committees are contained in the following:

Ex. Ord. No. 12379, Aug. 17, 1982, 47 F.R. 36099.

Ex. Ord. No. 12305, May 5, 1981, 46 F.R. 25421.

Ex. Ord. No. 12029, Dec. 14, 1977, 42 F.R. 63631.

Ex. Ord. No. 12007, Aug. 22, 1977, 42 F.R. 42839.

¹ So in original. Probably should be followed by a comma.

§1014. Requirements relating to National Academy of Sciences and National Academy of Public Administration

(a) In General.—An agency may not use any advice or recommendation provided by the National Academy of Sciences or National Academy of Public Administration that was developed by use of a committee created by that academy under an agreement with an agency, unless—

(1) the committee was not subject to any actual management or control by an agency or an officer of the Federal Government;

(2) in the case of a committee created after December 17, 1997, the membership of the committee was appointed in accordance with the requirements described in subsection (b)(1); and

(3) in developing the advice or recommendation, the academy complied with—

(A) subsection (b)(2) through (6), in the case of any advice or recommendation provided by the National Academy of Sciences; or

(B) subsection (b)(2) and (5), in the case of any advice or recommendation provided by the National Academy of Public Administration.

(b) Requirements.—The requirements referred to in subsection (a) are as follows:

(1) Public notice regarding appointees.—The Academy shall determine and provide public notice of the names and brief biographies of individuals that the Academy appoints or intends to appoint to serve on the committee. The Academy shall determine and provide a reasonable opportunity for the public to comment on appointments before they are made or, if the Academy determines prior comment is not practicable, in the period immediately following the appointments. The Academy shall require that any individual the Academy appoints (or intends to appoint) to serve on the committee inform the Academy of the individual's conflicts of interest that are relevant to the functions to be performed. The Academy shall make its best efforts to ensure that—

(A) no individual appointed to serve on the committee has a conflict of interest that is relevant to the functions to be performed, unless such conflict is promptly and publicly disclosed and the Academy determines that the conflict is unavoidable;

(B) the committee membership is fairly balanced as determined by the Academy to be appropriate for the functions to be performed; and

(C) the final report of the Academy will be the result of the Academy's independent judgment.

(2) Public notice of committee meetings.—The Academy shall determine and provide public notice of committee meetings that will be open to the public.

(3) Data-gathering meetings.—The Academy shall ensure that meetings of the committee to gather data from individuals who are not officials, agents, or employees of the Academy are open to the public, unless the Academy determines that a meeting would disclose matters described in section 552(b) of this title. The Academy shall make available to the public, at reasonable charge if appropriate, written materials presented to the committee by individuals who are not officials, agents, or employees of the Academy, unless the Academy determines that making material available would disclose matters described in section 552(b) of this title.

(4) Other meetings.—The Academy shall make available to the public as soon as practicable, at reasonable charge if appropriate, a brief summary of any committee meeting that is not a data-gathering meeting, unless the Academy determines that the summary would disclose matters described in section 552(b) of this title. The summary shall identify the committee members present, the topics discussed, materials made available to the committee, and other matters the Academy determines should be included.

(5) Final report.—The Academy shall make available to the public its final report, at reasonable charge if appropriate, unless the Academy determines that the report would disclose matters described in section 552(b) of this title. If the Academy determines that the report would disclose matters described in section 552(b) of this title, the Academy shall make public an abbreviated version of the report that does not disclose those matters.

(6) Reviewers of report.—After publication of the final report, the Academy shall make publicly available the names of the principal reviewers who reviewed the report in draft form and who are not officials, agents, or employees of the Academy.

(c) Regulations.—The Administrator of General Services may issue regulations implementing this section.

(Pub. L. 117–286, §3(a), Dec. 27, 2022, 136 Stat. 4205.)

Historical and Revision Notes

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
1014	5 U.S.C. App. (FACA §15)	Pub. L. 92–463, §15, as added Pub. L. 105–153, §2(b), Dec. 17, 1997, 111 Stat. 2689.

In subsection (a)(2), the date "December 17, 1997" is substituted for "the date of the enactment of the Federal Advisory Committee Act Amendments of 1997" for clarity.

PART II—CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

        

Editorial Notes

Amendments

2002—Pub. L. 107–296, title XIII, §1302(b), Nov. 25, 2002, 116 Stat. 2288, added item for chapter 14.

1992—Pub. L. 102–378, §2(1), Oct. 2, 1992, 106 Stat. 1346, substituted "Employee" for "Individual" in item for chapter 12.

1989—Pub. L. 101–12, §3(b)(1), Apr. 10, 1989, 103 Stat. 31, substituted ", Office of Special Counsel, and Individual Right of Action" for "and Special Counsel" in item for chapter 12.

1978—Pub. L. 95–454, title II, §201(c)(1), Oct. 13, 1978, 92 Stat. 1121, substituted "CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES" for "THE UNITED STATES CIVIL SERVICE COMMISSION" in heading for Part II.

Pub. L. 95–454, title II, §201(c)(2), Oct. 13, 1978, 92 Stat. 1121, substituted "Office of Personnel Management" for "Organization" in item for chapter 11.

Pub. L. 95–454, title II, §202(d), Oct. 13, 1978, 92 Stat. 1131, added item for chapter 12.

CHAPTER 11—OFFICE OF PERSONNEL MANAGEMENT

        

Editorial Notes

Amendments

1978—Pub. L. 95–454, title II, §201(a), Oct. 13, 1978, 92 Stat. 1119, substituted in chapter heading "OFFICE OF PERSONNEL MANAGEMENT" for "ORGANIZATION", in item 1101 "Office of Personnel Management" for "Appointment of Commissioners", in item 1102 "Director; Deputy Director; Associate Directors" for "Term of office; filling vacancies; removal", in item 1103 "Functions of the Director" for "Chairman; Vice Chairman; Executive Director", in item 1104 "Delegation of authority for personnel management" for "Functions of Chairman", and in item 1105 "Administrative procedure" for "Boards of examiners".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 398; Pub. L. 95–454, title II, §201(a), Oct. 13, 1978, 92 Stat. 1119.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 632 (1st par.).	Jan. 16, 1883, ch. 27, §1 (1st par.), 22 Stat. 403.

The words "official place under the United States" are changed to "another office or position in the Government" of the "United States" to conform to the present legislative use of "office" and "position".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" for "Appointment of Commissioners" in section catchline, and in text provisions relating to the establishment, etc., of the Office of Personnel Management for provisions relating to the appointment of members to the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Pub. L. 95–454, title IX, §907, Oct. 13, 1978, 92 Stat. 1227, provided that: "Except as otherwise expressly provided in this Act, the provisions of this Act [see Tables for classification] shall take effect 90 days after the date of the enactment of this Act [Oct. 13, 1978]."

Short Title of 1992 Amendment

Pub. L. 102–378, §1(a), Oct. 2, 1992, 106 Stat. 1346, provided that: "This Act [see Tables for classification] may be cited as the 'Technical and Miscellaneous Civil Service Amendments Act of 1992'."

Short Title of 1984 Amendment

Pub. L. 98–224, §1, Mar. 2, 1984, 98 Stat. 47, provided that: "This Act [amending sections 1304, 3323, 4108, 4109, 7104, and 7122 of this title] may be cited as the 'Civil Service Miscellaneous Amendments Act of 1983'."

Short Title of 1978 Amendment

Pub. L. 95–454, §1, Oct. 13, 1978, 92 Stat. 1111, provided that: "This Act [see Tables for classification] may be cited as the 'Civil Service Reform Act of 1978'."

Savings Provision

Pub. L. 95–454, title IX, §902, Oct. 13, 1978, 92 Stat. 1223, provided that:

"(a) Except as otherwise provided in this Act [see Tables for classification], all executive orders, rules, and regulations affecting the Federal service shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the President, the Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority with respect to matters within their respective jurisdictions.

"(b) No provision of this Act [see Tables for classification] shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.

"(c) No suit, action, or other proceeding lawfully commenced by or against the Director of the Office of Personnel Management or the members of the Merit Systems Protection Board, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act [see Effective Date of 1978 Amendment note above], shall abate by reason of the enactment of this Act [see Tables for classification]. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted."

Transmittal of Record Relating to Presidentially Appointed Positions to Presidential Candidates

Pub. L. 108–458, title VIII, §8403(b), Dec. 17, 2004, 118 Stat. 3870, as amended by Pub. L. 111–283, §2(c)(2), Oct. 15, 2010, 124 Stat. 3048, provided that:

"(1) Definition.—In this section, the term 'major party' has the meaning given that term under section 9002(6) of the Internal Revenue Code of 1986 [26 U.S.C. 9002(6)].

"(2) Transmittal.—

"(A) In general.—Not later than 15 days after the date on which a major party nominates a candidate for President, the Office of Personnel Management shall transmit an electronic record to that candidate on Presidentially appointed positions.

(B) Other candidates.—After making transmittals under subparagraph (A), the Office of Personnel Management shall transmit such electronic record to any other candidate for President who is an eligible candidate described in section 3(h)(4)(B) of the Presidential Transition Act of 1963 [Pub. L. 88–277] (3 U.S.C. 102 note) and may transmit such electronic record to any other candidate for President.

"(3) Content.—The record transmitted under this subsection shall provide—

"(A) all positions which are appointed by the President, including the title and description of the duties of each position;

"(B) the name of each person holding a position described under subparagraph (A);

"(C) any vacancy in the positions described under subparagraph (A), and the period of time any such position has been vacant;

"(D) the date on which an appointment made after the applicable Presidential election for any position described under subparagraph (A) is necessary to ensure effective operation of the Government; and

"(E) any other information that the Office of Personnel Management determines is useful in making appointments."

Transfer to Office of Personnel Management of Personnel Investigative Functions and Related Personnel of the Department of Defense

Pub. L. 108–136, div. A, title IX, §906, Nov. 24, 2003, 117 Stat. 1561, provided that:

"(a) Transfer of Functions.—(1) Subject to subsection (b), the Secretary of Defense may transfer to the Office of Personnel Management the personnel security investigations functions that, as of the date of the enactment of this Act [Nov. 24, 2003], are performed by the Defense Security Service of the Department of Defense. Such a transfer may be made only with the concurrence of the Director of the Office of Personnel Management.

"(2) The Director of the Office of Personnel Management may accept a transfer of functions under paragraph (1).

"(3) Any transfer of a function under this subsection is a transfer of function within the meaning of section 3503 of title 5, United States Code.

"(b) Limitation.—(1) The Secretary of Defense may not make a transfer of functions under subsection (a) unless the Secretary determines, and certifies in writing to the Committee on Armed Services of the House of Representatives and the Committee on Armed Services of the Senate, that each of the conditions specified in paragraph (2) has been met. Such a transfer may then be made only after a period of 30 days has elapsed after the date on which the certification is received by those committees.

"(2) The conditions referred to in paragraph (1) are the following:

"(A) That the Office of Personnel Management is fully capable of carrying out high-priority investigations required by the Secretary of Defense within a timeframe set by the Secretary of Defense.

"(B) That the Office of Personnel Management has undertaken necessary and satisfactory steps to ensure that investigations performed on Department of Defense contract personnel will be conducted in an expeditious manner sufficient to ensure that those contract personnel are available to the Department of Defense within a timeframe set by the Secretary of Defense.

"(C) That the Department of Defense will retain capabilities in the form of Federal employees to monitor and investigate Department of Defense and contractor personnel as necessary to perform counterintelligence functions and polygraph activities of the Department.

"(D) That the authority to adjudicate background investigations will remain with the Department of Defense and that the transfer of Defense Security Service personnel to the Office of Personnel Management will improve the speed and efficiency of the adjudication process.

"(E) That the Department of Defense will retain within the Defense Security Service sufficient personnel and capabilities to improve Department of Defense industrial security programs and practices.

"(c) Transfer of Personnel.—(1) If the Director of the Office of Personnel Management accepts a transfer of functions under subsection (a), the Secretary of Defense shall also transfer to the Office of Personnel Management, and the Director shall accept—

"(A) the Defense Security Service employees who perform those functions immediately before the transfer of functions; and

"(B) the Defense Security Service employees who, as of such time, are first level supervisors of employees transferred under subparagraph (A).

"(2) The Secretary may also transfer to the Office of Personnel Management any Defense Security Service employees (including higher level supervisors) who provide support services for the performance of the functions transferred under subsection (a) or for the personnel (including supervisors) transferred under paragraph (1) if the Director—

"(A) determines that the transfer of such additional employees and the positions of such employees to the Office of Personnel Management is necessary in the interest of effective performance of the transferred functions; and

"(B) accepts the transfer of the additional employees.

"(3) In the case of an employee transferred to the Office of Personnel Management under paragraph (1) or (2), whether a full-time or part-time employee—

"(A) subsections (b) and (c) of section 5362 of title 5, United States Code, relating to grade retention, shall apply to the employee, except that—

"(i) the grade retention period shall be the one-year period beginning on the date of the transfer; and

"(ii) paragraphs (1), (2), and (3) of such subsection (c) shall not apply to the employee; and

"(B) the employee may not be separated, other than pursuant to chapter 75 of title 5, United States Code, during such one-year period.

"(d) Actions After Transfer.—(1) Not later than one year after a transfer of functions to the Office of Personnel Management under subsection (a), the Director of the Office of Personnel Management, in coordination with the Secretary of Defense, shall review all functions performed by personnel of the Defense Security Service at the time of the transfer and make a written determination regarding whether each such function is inherently governmental or is otherwise inappropriate for performance by contractor personnel.

"(2) A function performed by Defense Security Service [now Defense Counterintelligence and Security Agency] employees as of the date of the enactment of this Act [Nov. 24, 2003] may not be converted to contractor performance by the Director of the Office of Personnel Management until—

"(A) the Director reviews the function in accordance with the requirements of paragraph (1) and makes a written determination that the function is not inherently governmental and is not otherwise inappropriate for contractor performance; and

"(B) the Director conducts a public-private competition regarding the performance of that function in accordance with the requirements of the Office of Management and Budget Circular A–76."

Federal Flexible Benefits Plan Administrative Costs

Pub. L. 108–136, div. A, title XI, §1127, Nov. 24, 2003, 117 Stat. 1640, provided that:

"(a) In General.—Notwithstanding any other provision of law, an agency or other employing entity of the Government which provides or plans to provide a flexible spending account option for its employees shall not impose any fee with respect to any of its employees in order to defray the administrative costs associated therewith.

"(b) Offset of Administrative Costs.—Each such agency or employing entity that offers a flexible spending account option under a program established or administered by the Office of Personnel Management shall periodically forward to such Office, or entity designated by such Office, the amount necessary to offset the administrative costs of such program which are attributable to such agency.

"(c) Reports.—(1) The Office shall submit a report to the Committee on Government Reform [now Committee on Oversight and Accountability] of the House of Representatives and the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate no later than March 31, 2004, specifying the administrative costs associated with the Governmentwide program (referred to in subsection (b)) for fiscal year 2003, as well as the projected administrative costs of such program for each of the 5 fiscal years thereafter.

"(2) At the end of each of the first 3 calendar years in which an agency or other employing entity offers a flexible spending account option under this section, such agency or entity shall submit a report to the Office of Management and Budget showing the amount of its employment tax savings in such year which are attributable to such option, net of administrative fees paid under subsection (b)."

Combined Federal Campaign Brochure List and General Designation Option for International Agencies

Pub. L. 102–393, title V, §532, Oct. 6, 1992, 106 Stat. 1763, provided that: "Notwithstanding any other provision of law, beginning October 1, 1992, and thereafter, no funds made available to the Office of Personnel Management may be used to prepare, promulgate, or implement any rules or regulations relating to the Combined Federal Campaign unless such rules or regulations include a Combined Federal Campaign brochure list and general designation option solely for international agencies, which list (listed by Federation in the case of affiliated agencies) and option shall include only those international agencies that elect in their annual application to be included under such list and option rather than under the national agencies list and option: Provided, That such limitation on the use of funds shall not apply to any activities related to the 1992 Combined Federal Campaign."

Report on Productivity of Federal Workforce; Deadline

Pub. L. 101–509, title V, §535, Nov. 5, 1990, 104 Stat. 1470, directed Office of Personnel Management to review and report to Congress, not later than 24 months after Nov. 5, 1990, on the productivity of the Federal workforce, such report to include recommendations with regard to (1) how productivity within the Federal workforce can be increased, the delivery of Government services improved, and the payroll costs of Government controlled through improved organization, training, advanced technology, and modern management practices, (2) the size, structure, and composition of the Federal workforce, (3) criteria for use by departments and agencies to determine the level of personnel necessary to accomplish their functions and goals, and (4) changes in Federal law, regulations, and administrative practices to promote economy, productivity, effectiveness, and managerial accountability within the Federal workforce.

Funds for Preparation, Promulgation, or Implementation of Regulations Relating to Combined Federal Campaign; Eligibility Criteria

Pub. L. 100–202, §101(m) [title VI, §618], Dec. 22, 1987, 101 Stat. 1329–390, 1329-423, provided that:

"(a) None of the funds appropriated by this Act, or any other Act in this or any fiscal year hereafter, may be used in preparing, promulgating, or implementing any regulations relating to the Combined Federal Campaign if such regulations are not in conformance with subsection (b).

"(b)(1)(A) Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall not, to the extent that such requirements relate to litigation, public-policy advocacy, or attempting to influence legislation, be any more restrictive than any requirements established with respect to those subject matters under section 501(c)(3) or 501(h) of the Internal Revenue Code of 1986 [26 U.S.C. 501(c)(3), (h)].

"(B) Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall, to the extent that such requirements relate to any subject matter other than one referred to in subparagraph (A), remain the same as the criteria in the 1984 regulations, except as otherwise provided in this section.

"(C) Notwithstanding any requirement referred to in subparagraph (A) or (B), for purposes of any Combined Federal Campaign—

"(i) any voluntary agency or federated group which was a named plaintiff as of September 1, 1987, in a case brought in the United States District Court for the District of Columbia, and designated as Civil Action No. 83–0928 or 86–1367, and

"(ii) The Federal Employee Education and Assistance Fund,

shall be considered to have national eligibility.

"(D) Public accountability standards shall remain similar to the standards which were by regulation established with respect to the 1984–1987 Combined Federal Campaigns, except that the Office of Personnel Management shall prescribe regulations under which a voluntary agency or federated group which does not exceed a certain size (as established under such regulations) may submit a copy of an appropriate Federal tax return, rather than complying with any independent auditing requirements which would otherwise apply.

"(2)(A) A voluntary agency or federated group shall, for purposes of any Combined Federal Campaign in any year, be considered to have national eligibility if such agency or group—

"(i) complies with all requirements for eligibility to receive contributions through the Combined Federal Campaign, without regard to any requirements relating to 'local presence'; and

"(ii) demonstrates that it provided services, benefits, or assistance, or otherwise conducted program activities, in—

"(I) 15 or more different States over the 3-year period immediately preceding the start of the year involved; or

"(II) several foreign countries or several parts of a foreign country.

For purposes of this subparagraph, an agency or federated group shall be considered to have conducted program activities in the required number of States, countries, or parts of a country, over the period of years involved, if such agency or group conducted program activities in such number of States, countries, or parts either in any single year during such period or in the aggregate over the course of such period, provided that no State, country, or part of a country is counted more than once.

"(B) Notwithstanding any other provisions, eligibility requirements relating to International Services Agencies shall remain at least as inclusive as existing requirements. Any voluntary agency or federated group which attains national eligibility under subparagraph (A), and any voluntary agency which is a member of the International Services Agencies, shall be considered to have satisfied any requirements relating to 'local presence'.

"(3)(A) If a federated group is eligible to receive donations in a Combined Federal Campaign, whether on a national level (pursuant to certification by the Office) or a local level (pursuant to certification by the local Federal coordinating committee), each voluntary agency which is a member of such group may, upon certification by the federated group, be considered eligible to participate on such national or local level, as the case may be.

"(B) Notwithstanding any provision of subparagraph (A)—

"(i) the Office may require a voluntary agency to provide information to support any certification submitted by a federated group with respect to such agency under subparagraph (A); and

"(ii) if a determination is made, in writing after notice and opportunity to submit written comments, that the information submitted by the voluntary agency does not satisfy the applicable eligibility requirements, such agency may be barred from participating in the Combined Federal Campaign on a national or local level, as the case may be, for a period not to exceed 1 campaign year.

"(4) The Office shall exercise oversight responsibility to ensure that—

"(A) regulations are uniformly and equitably implemented in all local combined Federal campaigns;

"(B) federated groups participating in a local combined Federal campaign are allowed to compete fairly for the role of principal combined fund organization;

"(C) federated groups participating in a local combined Federal campaign are afforded—

"(i) adequate opportunity to consult with the PCFO for the area involved before any plans are made final relating to the design or conduct of such campaign (including plans pertaining to any materials to be printed as part of the campaign);

"(ii) adequate opportunity to participate in campaign events and other related activities; and

"(iii) timely access to all reports, budgets, audits, and other records in the possession of, or under the control of, the PCFO for the areas involved; and

"(D) a federated group or voluntary agency found by the Office, by a written decision issued after notice and opportunity to submit written comments, to have violated the regulations may be barred from serving as a PCFO for not to exceed 1 campaign year.

"(5) The Office shall prescribe regulations to ensure that PCFOs do not make inappropriate delegations of decisionmaking authority.

"(6)(A) The Office shall, in consultation with federated groups, establish a formula under which any undesignated contributions received in a local combined Federal campaign shall be allocated in any year.

"(B) Under the formula for the 1990 Combined Federal Campaign, all undesignated contributions received in a local campaign shall be allocated as follows:

"(i) 82 percent shall be allocated to the United Way.

"(ii) 7 percent shall be allocated to the International Services Agencies.

"(iii) 7 percent shall be allocated to the National Voluntary Health Agencies.

"(iv) 4 percent shall, after fair and careful consideration of all eligible federated groups and agencies, be allocated by the local Federal coordinating committee among any or all of the following:

"(I) National federated groups (other than any identified in clauses (i), (ii), or (iii)), except that a national federated group shall not be eligible under this subclause unless there are at least 15 members of such group participating in the local campaign, unless the members of such group collectively receive at least 4 percent of the designated contributions in the local campaign, and unless such group was granted national eligibility status for the 1987, 1988, 1989, or 1990 Combined Federal Campaign.

"(II) Local federated groups.

"(III) Any local, non-affiliated voluntary agency which receives at least 4 percent of the designated contributions in the local campaign.

"(C) The formula set forth in subparagraph (B)—

"(i) shall be phased in over the course of the 1988 and 1989 Combined Federal Campaigns;

"(ii) shall be fully implemented with respect to the 1990 Combined Federal Campaigns [sic]; and

"(iii) shall, with respect to any Combined Federal Campaign thereafter, be adjusted based on the experience gained in the Combined Federal Campaigns referred to in clauses (i) and (ii).

"(D) Nothing in this paragraph shall apply with respect to any campaign conducted in a foreign country.

"(E) All appropriate steps shall be taken to encourage donors to make designated contributions.

"(7) The option for a donor to write in the name of a voluntary agency or federated group not listed in the campaign brochure to receive that individual's contribution in a local campaign shall be eliminated.

"(8) The name of any individual making a designated contribution in a campaign shall, upon request of the recipient voluntary agency or federated group, be released to such agency or group, unless the contributor indicates that his or her name is not to be released. Under no circumstance may the names of contributors be sold or otherwise released by such agency or group.

"(9)(A) The name of each participating voluntary agency and federated group, together with a brief description of their respective programs, shall be published in any information leaflet distributed to employees in a local combined Federal campaign. Agencies shall be arranged by federated group, with combined Federal campaign organization code numbers corresponding to each such agency and group.

"(B) The requirement under subparagraph (A) relating to the inclusion of program descriptions may, at the discretion of a local Federal coordinating committee, be waived for a local campaign in any year if, in the immediately preceding campaign year, contributions received through the local campaign totalled less than $100,000.

"(10) Employee coercion is not to be tolerated in the Combined Federal Campaign, and protections against employee coercion shall be strengthened and clarified.

"(11) The Office—

"(A) may not, after the date of the enactment of this Act [Dec. 22, 1987], grant national eligibility status to any federated group unless such group has at least 15 member voluntary agencies, each of which meets the requirements for national eligibility under paragraph (2)(A); and

"(B) may withdraw federation status from any federated group for a period of not to exceed 1 campaign year if it is determined, on the record after opportunity for a hearing, that the federated group has not complied with the regulatory requirements.

"(12) The Office may bar from participation in the Combined Federal Campaign, for a period not to exceed 1 campaign year, any voluntary agency which the Office determines, in writing, and after notice and opportunity to submit written comments, did not comply with a reasonable request by the Office to furnish it with information relating to such agency's campaign accounting and auditing practices.

"(c) For purposes of this section, a voluntary agency or federated group having 'national eligibility' is one which is eligible to participate in each local domestic combined Federal campaign."

Civil Service Reform Act of 1978 Findings and Statement of Purpose

Pub. L. 95–454, §3, Oct. 13, 1978, 92 Stat. 1112, provided that: "It is the policy of the United States that—

"(1) in order to provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation's diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices;

"(2) the merit system principles which shall govern in the competitive service and in the executive branch of the Federal Government should be expressly stated to furnish guidance to Federal agencies in carrying out their responsibilities in administering the public business, and prohibited personnel practices should be statutorily defined to enable Federal employees to avoid conduct which undermines the merit system principles and the integrity of the merit system;

"(3) Federal employees should receive appropriate protection through increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting Federal employees;

"(4) the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;

"(5) the function of filling positions and other personnel functions in the competitive service and in the executive branch should be delegated in appropriate cases to the agencies to expedite processing appointments and other personnel actions, with the control and oversight of this delegation being maintained by the Office of Personnel Management to protect against prohibited personnel practices and the use of unsound management practices by the agencies;

"(6) a Senior Executive Service should be established to provide the flexibility needed by agencies to recruit and retain the highly competent and qualified executives needed to provide more effective management of agencies and their functions, and the more expeditious administration of the public business;

"(7) in appropriate instances, pay increases should be based on quality of performance rather than length of service;

"(8) research programs and demonstration projects should be authorized to permit Federal agencies to experiment, subject to congressional oversight, with new and different personnel management concepts in controlled situations to achieve more efficient management of the Government's human resources and greater productivity in the delivery of service to the public;

"(9) the training program of the Government should include retraining of employees for positions in other agencies to avoid separations during reductions in force and the loss to the Government of the knowledge and experience that these employees possess; and

"(10) the right of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them, with full regard for the public interest and the effective conduct of public business, should be specifically recognized in statute."

Powers of President Unaffected Except by Express Provisions

Pub. L. 95–454, title IX, §904, Oct. 13, 1978, 92 Stat. 1224, provided that:

"Except as otherwise expressly provided in this Act [see Tables for classification], no provision of this Act shall be construed to—

"(1) limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had immediately before the effective date of this Act [see Effective Date of 1978 Amendment note above]; or

"(2) limit, curtail, or terminate the President's authority to delegate, redelegate, or terminate any delegation of functions."

Executive Documents

Reorganization Plans No. 1 and 2 of 1978 Superseded by Civil Service Reform Act of 1978

Pub. L. 95–454, title IX, §905, Oct. 13, 1978, 92 Stat. 1224, provided that: "Any provision in either Reorganization Plan Numbered 1 [set out in the Appendix to this title] or 2 [set out below] of 1978 inconsistent with any provision in this Act [see Tables for classification] is hereby superseded."

REORGANIZATION PLAN NO. 2 OF 1978

43 F.R. 36037, 92 Stat. 3783

Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, May 23, 1978,¹ pursuant to the provisions of Chapter 9 of Title 5 of the United States Code.

PART I. OFFICE OF PERSONNEL MANAGEMENT

Section 101. Establishment of the Office of Personnel Management and Its Director and Other Matters

There is hereby established as an independent establishment in the Executive Branch, the Office of Personnel Management (the "Office"). The head of the Office shall be the Director of the Office of Personnel Management (the "Director"), who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be compensated at the rate now or hereafter provided for level II of the Executive Schedule [5 U.S.C. 5313]. The position referred to in 5 U.S.C. 5109(b) is hereby abolished.

Sec. 102. Transfer of Functions

Except as otherwise specified in this Plan, all functions vested by statute in the United States Civil Service Commission, or the Chairman of said Commission, or the Boards of Examiners established by 5 U.S.C. 1105 are hereby transferred to the Director of the Office of Personnel Management.

Sec. 103. Deputy Director and Associate Directors

(a) There shall be within the Office a Deputy Director who shall be appointed by the President by and with the advice and consent of the Senate and who shall be compensated at the rate now or hereafter provided for level III of the Executive Schedule [5 U.S.C. 5314]. 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 in the event of a vacancy in the Office of the Director.

(b) There shall be within the Office not more than five Associate Directors, who shall be appointed by the Director in the excepted service, shall have such titles as the Director shall from time to time determine, and shall receive compensation at the rate now or hereafter provided for level IV of the Executive Schedule [5 U.S.C. 5315].

Sec. 104. Functions of the Director

The functions of the Director shall include, but not be limited to, the following:

(a) Aiding the President, as the President may request, in preparing such rules as the President prescribes, for the administration of civilian employment now within the jurisdiction of the United States Civil Service Commission;

(b) Advising the President, as the President may request, on any matters pertaining to civilian employment now within the jurisdiction of the United States Civil Service Commission;

(c) Executing, administering and enforcing the Civil Service rules and regulations of the President and the Office and the statutes governing the same, and other activities of the Office including retirement and classification activities except to the extent such functions remain vested in the Merit Systems Protection Board pursuant to Section 202 of this Plan, or are transferred to the Special Counsel pursuant to Section 204 of this Plan. The Director shall provide the public, where appropriate, a reasonable opportunity to comment and submit written views on the implementation and interpretation of such rules and regulations;

(d) Conducting or otherwise providing for studies and research for the purpose of assuring improvements in personnel management, and recommending to the President actions to promote an efficient Civil Service and a systematic application of the merit system principles, including measures relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separations of employees; and

(e) Performing the training responsibilities now performed by the United States Civil Service Commission as set forth in 5 U.S.C. Chapter 41.

Sec. 105. Authority To Delegate Functions

The Director may delegate, from time to time, to the head of any agency employing persons in the competitive service, the performance of all or any part of those functions transferred under this Plan to the Director which relate to employees, or applicants for employment, of such agency.

PART II. MERIT SYSTEMS PROTECTION BOARD

Sec. 201. Merit Systems Protection Board

(a) The United States Civil Service Commission is hereby redesignated the Merit Systems Protection Board. The Commissioners of the United States Civil Service Commission are hereby redesignated as members of the Merit Systems Protection Board (the "Board").

(b) The Chairman of the Board shall be its chief executive and administrative officer. The position of Executive Director, established by 5 U.S.C. 1103(d), is hereby abolished.

Sec. 202. Functions of the Merit Systems Protection Board and Related Matters

(a) There shall remain with the Board the hearing, adjudication, and appeals functions of the United States Civil Service Commission specified in 5 U.S.C. 1104(b)(4) (except hearings, adjudications and appeals with respect to examination ratings), and also found in the following statutes:

(i) 5 U.S.C. 1504–1507, 7325, 5335, 7521, 7701 and 8347(d);

(ii) 38 U.S.C. 2023

(b) There shall remain with the Board the functions vested in the United States Civil Service Commission, or its Chairman, pursuant to 5 U.S.C. 1104(a)(5) and (b)(4) to enforce decisions rendered pursuant to the authorities described in Subsection (a) of this Section.

(c) Any member of the Board may request from the Director, in connection with a matter then pending before the Board for adjudication, an advisory opinion concerning interpretation of rules, regulations, or other policy directives promulgated by the Office of Personnel Management.

(d) Whenever the interpretation or application of a rule, regulation, or policy directive of the Office of Personnel Management is at issue in any hearing, adjudication, or appeal before the Board, the Board shall promptly notify the Director, and the Director shall have the right to intervene in such proceedings.

(e) The Board shall designate individuals to chair performance rating boards established pursuant to 5 U.S.C. 4305.

(f) The Chairman of the Board shall designate representatives to chair boards of review established pursuant to 5 U.S.C. 3383(b).

(g) The Board may from time to time conduct special studies relating to the Civil Service, and to other merit systems in the Executive Branch and report to the President and the Congress whether the public interest in a workforce free of personnel practices prohibited by law or regulations is being adequately protected. In carrying out this function the Board shall make such inquiries as may be necessary, and, to the extent permitted 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. The Board shall make such recommendations to the President and the Congress as it deems appropriate.

(h) The Board may delegate the performance of any of its administrative functions to any officer or employee of the Board.

(i) 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. The Board may issue rules and regulations, consistent with statutory requirements, defining its review procedures, including the time limits within which an appeal must be filed and the rights and responsibilities of the parties to an appeal. All regulations of the Board shall be published in the Federal Register.

Sec. 203. Savings Provision

The Board shall accept appeals from agency actions effected prior to the effective date of this Plan. On the effective date of Part II of this Plan, proceedings then before the Federal Employee Appeals Authority shall continue before the Board; proceedings then before the Appeals Review Board and proceedings then before the United States Civil Service Commission on appeal from decisions of the Appeals Review Board shall continue before the Board; other employee appeals before boards or other bodies pursuant to law or regulation shall continue to be processed pursuant to those laws or regulations. Nothing in this section shall affect the right of a Federal employee to judicial review under applicable law.

Sec. 204. The Special Counsel

(a) There shall be a Special Counsel to the Board appointed for a term of four years by the President by and with the advice and consent of the Senate, who shall be compensated as now or hereafter provided for level IV of the Executive Schedule [5 U.S.C. 5315].

(b) There are hereby transferred to the Special Counsel all functions with respect to investigations relating to violations of 5 U.S.C. Chapter 15; 5 U.S.C. Subchapter III of Chapter 73 (Political Activities); and 5 U.S.C. 552(a)(4)(F) (public information).

(c) The Special Counsel may investigate, pursuant to 5 U.S.C. 1303, allegations of personnel practices which are prohibited by law or regulation.

(d) When in the judgment of the Special Counsel, such personnel practices exist, he shall report his findings and recommendations to the Chairman of the Merit Systems Protection Board, the agency affected, and to the Office of Personnel Management, and may report such findings to the President.

(e) When in the judgment of the Special Counsel, the results of an investigation would warrant the taking of disciplinary action against an employee who is within the jurisdiction of the Board, the Special Counsel shall prepare charges against such employee and present them with supporting documentation to the Board. Evidence supporting the need for disciplinary action against a Presidential appointee shall be submitted by the Special Counsel to the President.

(f) The Special Counsel may appoint personnel necessary to assist in the performance of his functions.

(g) The Special Counsel shall have the authority to prescribe rules and regulations relating to the receipt and investigation of matters under his jurisdiction. Such regulations shall be published in the Federal Register.

(h) The Special Counsel shall not issue advisory opinions.

PART III. FEDERAL LABOR RELATIONS AUTHORITY

Sec. 301. Establishment of the Federal Labor Relations Authority

(a) There is hereby established, as an independent establishment in the Executive Branch, the Federal Labor Relations Authority (the "Authority"). The Authority shall be composed of three members, one of whom shall be Chairman, not more than two of whom may be adherents of the same political party, and none of whom may hold another office or position in the Government of the United States except where provided by law or by the President.

(b) Members of the Authority shall be appointed by the President, by and with the advice and consent of the Senate. The President shall designate one member to serve as Chairman of the Authority, who shall be compensated at the rate now or hereafter provided for level III of the Executive Schedule [5 U.S.C. 5314]. The other members shall be compensated at the rate now or hereafter provided for level IV of the Executive Schedule [5 U.S.C. 5315].

(c) The initial members of the Authority shall be appointed as follows: one member for a term of two years; one member for a term of three years; and the Chairman for a term of four years. Thereafter, each member shall be appointed for a term of four years. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.

(d) The Authority shall make an annual report on its activities to the President for transmittal to Congress.

Sec. 302. Establishment of the General Counsel of the Authority

There shall be a General Counsel of the Authority, who shall be appointed by the President, by and with the advice and consent of the Senate for a term of four years, and who shall be compensated at the rate now or hereafter provided for level V of the Executive Schedule [5 U.S.C. 5316]. The General Counsel shall perform such duties as the Authority shall from time to time prescribe, including but not limited to the duty of determining and presenting facts required by the Authority in order to decide unfair labor practice complaints.

Sec. 303. The Federal Service Impasses Panel

The Federal Service Impasses Panel, established under Executive Order 11491, as amended [set out under 5 U.S.C. 7101], (the "Panel") shall continue, and shall be a distinct organizational entity within the Authority.

Sec. 304. Functions

Subject to the provisions of Section 306, the following functions are hereby transferred:

(a) To the Authority—

(1) The functions of the Federal Labor Relations Council pursuant to Executive Order 11491, as amended [set out under 5 U.S.C. 7101];

(2) The functions of the Civil Service Commission under Sections 4(a) and 6(e) of Executive Order 11491, as amended;

(3) The functions of the Assistant Secretary of Labor for Labor-Management Relations, under Executive Order 11491, as amended, except for those functions related to alleged violations of the standards of conduct for labor organizations pursuant to Section 6(a)(4) of said Executive Order; and,

(b) to the Panel—the functions and authorities of the Federal Service Impasses Panel, pursuant to Executive Order 11491, as amended.

Sec. 305. Authority Decisions

The decisions of the Authority on any matter within its jurisdiction shall be final and not subject to judicial review.

Sec. 306. Other Provisions

Unless and until modified, revised, or revoked, all policies, regulations, and procedures established, and decisions issued, under Executive Order 11491, as amended [set out under 5 U.S.C. 7101], shall remain in full force and effect. There is hereby expressly reserved to the President the power to modify the functions transferred to the Federal Labor Relations Authority and the Federal Service Impasses Panel pursuant to Section 304 of this Plan.

Sec. 307. Savings Provision

All matters which relate to the functions transferred by Section 304 of this Plan, and which are pending on the effective date of the establishment of the Authority before the Federal Labor Relations Council, the Vice Chairman of the Civil Service Commission, or the Assistant Secretary of Labor for Labor-Management Relations shall continue before the Authority under such rules and procedures as the Authority shall prescribe. All such matters pending on the effective date of the establishment of the Authority before the Panel, shall continue before the Panel under such rules and procedures as the Panel shall prescribe.

PART IV. GENERAL PROVISIONS

Sec. 401. Incidental Transfer

So much of the personnel, property, records, and unexpended balances of appropriations, allocations and other funds employed, used, held, available, or to be made available in connection with the functions transferred under this Plan, as the Director of the Office of Management and Budget shall determine, shall be transferred to the appropriate agency, or component at such time or times as the Director of the Office of Management and Budget shall provide, except that no such unexpended balances transferred shall be used for purposes other than those for which the appropriation was originally made. The Director of the Office of Management and Budget shall provide for terminating the affairs of any agencies abolished herein and for such further measures and dispositions as such Director deems necessary to effectuate the purposes of this Reorganization Plan.

Sec. 402. Interim Officers

(a) The President may authorize any persons who, immediately prior to the effective date of this Plan, held positions in the Executive Branch of the Government, to act as Director of the Office of Personnel Management, the Deputy Director of the Office of Personnel Management, the Special Counsel, the Chairman and other members of the Federal Labor Relations Authority, the Chairman and other members of the Federal Service Impasses Panel, or the General Counsel of the Authority, until those offices are for the first time filled pursuant to the provisions of this Reorganization Plan or by recess appointment, as the case may be.

(b) The President may authorize any such person to receive the compensation attached to the Office in respect of which that person so serves, in lieu of other compensation from the United States.

Sec. 403. Effective Date

The provisions of this Reorganization Plan shall become effective at such time or times, on or before January 1, 1979, as the President shall specify, but not sooner than the earliest time allowable under Section 906 of Title 5, United States Code.

[Pursuant to Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, this Reorg. Plan is generally effective Jan. 1, 1979.]

Message of the President

To the Congress of the United States:

On March 2nd I sent to Congress a Civil Service Reform proposal to enable the Federal government to improve its service to the American people.

Today I am submitting another part of my comprehensive proposal to reform the Federal personnel management system through Reorganization Plan No. 2 of 1978. The plan will reorganize the Civil Service Commission and thereby create new institutions to increase the effectiveness of management and strengthen the protection of employee rights.

The Civil Service Commission has acquired inherently conflicting responsibilities: to help manage the Federal Government and to protect the rights of Federal employees. It has done neither job well. The Plan would separate the two functions.

office of personnel management

The positive personnel management tasks of the government—such as training, productivity programs, examinations, and pay and benefits administration—would be the responsibility of an Office of Personnel Management. Its Director, appointed by the President and confirmed by the Senate, would be responsible for administering Federal personnel matters except for Presidential appointments. The Director would be the government's principal representative in Federal labor relations matters.

merit systems protection board

The adjudication and prosecution responsibilities of the Civil Service Commission will be performed by the Merit Systems Protection Board. The Board will be headed by a bipartisan panel of three members appointed to six-year, staggered terms. This Board would be the first independent and institutionally impartial Federal agency solely for the protection of Federal employees.

The Plan will create, within the Board, a Special Counsel to investigate and prosecute political abuses and merit system violations. Under the civil service reform legislation now being considered by the Congress, the Counsel would have power to investigate and prevent reprisals against employees who report illegal acts—the so-called "whistleblowers." The Council would be appointed by the President and confirmed by the Senate.

federal labor relations authority

An Executive Order now vests existing labor-management relations in a part-time Federal Labor-Relations Council, comprised of three top government managers; other important functions are assigned to the Assistant Secretary of Labor for Labor-Management Relations. This arrangement is defective because the Council members are part-time, they come exclusively from the ranks of management and their jurisdiction is fragmented.

The Plan I submit today would consolidate the central policymaking functions in labor-management relations now divided between the Council and the Assistant Secretary into one Federal Labor Relations Authority. The Authority would be composed of three full-time members appointed by the President with the advice and consent of the Senate. Its General Counsel, also appointed by the President and confirmed by the Senate, would present unfair labor practice complaints. The Plan also provides for the continuance of the Federal Service Impasses Panel within the Authority to resolve negotiating impasses between Federal employee unions and agencies.

The cost of replacing the Civil Service Commission can be paid by our present resources. The reorganization itself would neither increase nor decrease the costs of personnel management throughout the government. But taken together with the substantive reforms I have proposed, this Plan will greatly improve the government's ability to manage programs, speed the delivery of Federal services to the public, and aid in executing other reorganizations I will propose to the Congress, by improving Federal personnel management.

Each of the provisions of this proposed reorganization would accomplish one or more of the purposes set forth in 5 U.S.C. 901(a). No functions are abolished by the Plan, but the offices referred to in 5 U.S.C. 5109(b) and 5 U.S.C. 1103(d) are abolished. The portions of the Plan providing for the appointment and pay for the head and one or more officers of the Office of Personnel Management, the Merit Systems Protection Board, the Federal Labor Relations Authority and the Federal Service Impasses Panel, are necessary to carry out the reorganization. The rates of compensation are comparable to those for similar positions within the Executive Branch.

I am confident that this Plan and the companion civil service reform legislation will both lead to more effective protection of Federal employees' legitimate rights and a more rewarding workplace. At the same time the American people will benefit from a better managed, more productive and more efficient Federal Government.

Jimmy Carter.      

The White House, May 23, 1978.

Executive Order No. 10729

Ex. Ord. No. 10729, Sept. 16, 1957, 22 F.R. 7449, which established the position of the Special Assistant to the President for Personnel Management, was revoked by Ex. Ord. No. 11205, Mar. 15, 1965, 30 F.R. 3513.

Ex. Ord. No. 11205. Revocation of Executive Order No. 10729

Ex. Ord. No. 11205, Mar. 15, 1965, 30 F.R. 3513, provided:

By virtue of the authority vested in me as President of the United States, the position of Special Assistant to the President for Personnel Management, established by Executive Order No. 10729 of September 16, 1957, is abolished, and that Order is hereby revoked.

Lyndon B. Johnson.      

Ex. Ord. No. 12107. Implementation of Reform of Personnel Management System

Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, as amended by Ex. Ord. No. 12126, Mar. 29, 1979, 44 F.R. 18923; Ex. Ord. No. 12128, Apr. 4, 1979, 44 F.R. 20625, provided:

By virtue of the authority vested in me as President by the Constitution and statutes of the United States of America, and by Section 403 of Reorganization Plan No. 2 of 1978 (43 FR 36037) [set out above], it is hereby ordered as follows:

Section 1

implementation of reorganization plan no. 2 of 1978

1–1. Office of Personnel Management

1–101. Establishment of Office of Personnel Management. The establishment of the Office of Personnel Management and of the positions of Director, Deputy Director, and Associate Directors of that Office, as provided in Sections 101 and 103 of Reorganization Plan No. 2 of 1978, shall be effective on January 1, 1979.

1–102. Transfer of Functions. Section 102 of Reorganization Plan No. 2 of 1978, transferring functions to the Director of the Office of Personnel Management, shall be effective on January 1, 1979.

1–2. Merit Systems Protection Board

1–201. Redesignation of Civil Service Commission. The redesignation of the Civil Service Commission as the Merit Systems Protection Board and of the Commissioners as Members of the Board as provided in Section 201 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–202. Functions of the Merit Systems Protection Board. The functions of the Merit Systems Protection Board as provided in Section 202 and the savings provisions of Section 203 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–3. The Special Counsel

1–301. Establishment of the Office of Special Counsel. The establishment of the Office of Special Counsel to the Merit Systems Protection Board as provided in Section 204(a) of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–302. Functions of the Special Counsel. The transfer of functions provided for in Section 204(b) and the performance of functions set forth in Section 204(c)–(g) of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–4. The Federal Labor Relations Authority

1–401. The Establishment of the Federal Labor Relations Authority and the Office of General Counsel. The establishment of the Federal Labor Relations Authority as provided in Section 301 and of the Office of General Counsel of the Authority as provided in Section 302 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–402. The Federal Service Impasses Panel. The continuation of the Federal Service Impasses Panel established under Executive Order No. 11491, as amended [set out as a note under section 7101 of this title], as a distinct organizational entity within the Federal Labor Relations Authority as provided in Section 303 of Reorganization Plan No. 2 of 1978, shall be effective on January 1, 1979.

1–403. Functions of the Federal Labor Relations Authority, the General Counsel, and the Federal Service Impasses Panel. The transfer of functions provided for in Section 304 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–5. General

1–501. General Effective Date. All other provisions of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

Section 2

redesignations, amendments to rules and executive orders and general provisions

2–1. Redesignations

2–101. Office of Personnel Management. Each of the Executive orders, as amended, listed in this Section under subsections (a) and (b), as applicable, and any other order which relates to functions or areas of responsibility delegated to the Office of Personnel Management, is amended and revised by substituting the words "Office of Personnel Management" for the words "Civil Service Commission" or "United States Civil Service Commission"; by substituting the word "Office" for the word "Commission" wherever the word "Commission" is used as a reference to United States Civil Service Commission; and by substituting the words "Director, Office of Personnel Management" for the words "Chairman, Civil Service Commission", "Chairman, United States Civil Service Commission", "Commissioners" or "Commissioner" wherever they appear.

(a) Executive orders relating to the Civil Service Rules, ethics and other matters of Presidential interest.

Executive Orders Numbered

8743

10577, as amended, except for Rules IV and V, as amended in this order,

10641

10717

10927

11183

11222

11315

11451

11570

11639

11648

11721

11935

12004

12014

12043

(b) Other Executive orders relating to Federal Personnel Management, and membership on Councils, Boards, and Committees.

Executive Orders Numbered

8744

9230

9712

9830

9932

9961

10000

10242

10422

10450

10459

10530

10549

10550

10552

10556

10647

10763

10774, except for Section 3(e)

10804

10826

10880

10903

10973

10982

11103

11171

11203

11219

11228

11264

11348

11355

11422

11434

11438

11490

11521

11552

11561

11579

11589

11603

11609

11639

11744

11817

11890

11895

11899

11938

11955

12008

12015

12027

12049

12067

12070

12089

12105

2–102. Merit Systems Protection Board. The provisions of Section 3(e) of Executive Order No. 10774 [set out as a note under section 2025 of Title 22, Foreign Relations and Intercourse], and Executive Order No. 11787 [formerly set out as a note under section 7701 of this title], are hereby amended and revised by substituting the words "Merit Systems Protection Board" for the words "Civil Service Commission" or "Commission" when used as a reference to the Civil Service Commission wherever such words appear.

2–103. [Amended Civil Service Rules under section 101 of Ex. Ord. No. 10577, formerly set out as a note under section 3301 of this title.]

2–104. Effectiveness of Rule Changes. The amendments to rules shall be effective on January 1, 1979, to the extent provided by law on that date.

2–2. Revocation of Executive Orders and Delegation of Functions

2–201. Revocation of Executive Orders and Delegation of Functions to the Director. Executive Orders numbered 10540 and 10561 [set out as notes under sections 6301 and 1302, respectively, of this title] are revoked and the authority vested in the President by Section 202(c)(1)(C) of the Annual Sick Leave Act of 1951, as amended [section 6301(2)(XI) of this title], and the authority of the President, pursuant to the Civil Service Act of January 16, 1883, to designate official personnel folders in government agencies as records of the Office of Personnel Management and to prescribe regulations relating to the establishment, maintenance and transfers of official personnel folders, are delegated to the Director of the Office of Personnel Management. Any rules, regulations, directives, instructions or other actions taken pursuant to the authority delegated to the Director of the Office of Personnel Management shall remain in effect until amended, modified, or revoked pursuant to the delegations made by this Order.

2–202. Savings Provision. All personnel actions and decisions affecting employees or applicants for employment made on or before January 11, 1979 shall continue to be governed by the applicable Executive order, and the rules and regulations implementing that Order, to the same extent as if that Executive order had not been revoked effective January 11, 1979 unless amended, modified or revoked pursuant to this Order.

2–3. Labor Management Relations in the Federal Service

2–301. [Amended Ex. Ord. No. 11491, set out as a note under section 7101 of this title.]

2–4. General Provisions

2–401. Study and Report Provisions. The Director of the Office of Personnel Management is directed to conduct a study of Executive orders listed in Section 2–101(a) and (b) and to coordinate the study with such other agencies as may be named in or affected by these orders. The Director of Personnel Management and the Director of the Office of Management and Budget are directed to submit a report on or before July 1, 1981 to the President concerning the performance of functions specified in these Executive orders and any other Executive orders affecting the functions or responsibilities of the Office of Personnel Management. The report shall contain specific detailed recommendations for the continuation, modification, revision or revocation of each Executive order.

2–402. Continuing Effect of this Order. Except as required by the Civil Service Reform Act of 1978 [Pub. L. 95–454] as its provisions become effective, in accord with Section 7135 of Title 5, United States Code, as amended, and in accord with Section 902(a) of that Act [set out as a Savings Provisions note above], the provisions of this Order shall continue in effect, according to its terms, until modified, terminated or suspended.

2–403. Transfers and Determinations.

(a) The records, property, personnel and positions, and unexpended balances of appropriations or funds related to Civil Service Commission functions reassigned by this Order that are available, or to be made available, and necessary to finance or discharge the reassigned functions are transferred to the Director of the Office of Personnel Management, the Federal Labor Relations Authority, or the Federal Service Impasses Panel, as appropriate.

(b) The Director of the Office of Management and Budget shall make such determinations, issue such Orders and take all actions necessary or appropriate to effectuate the transfers or reassignments provided by this Order, including the transfer of funds, records, property and personnel.

2–404. Effective Date. Except as otherwise specifically provided in this Order, this Order shall be effective on January 1, 1979.

Jimmy Carter.      

Executive Order No. 12157

Ex. Ord. No. 12157, Sept. 14, 1979, 44 F.R. 54035, which related to the President's Management Improvement Council, was revoked by Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, formerly set out as a note under section 14 of the Appendix to this title.

Ex. Ord. No. 12353. Charitable Fund-Raising

Ex. Ord. No. 12353, Mar. 23, 1982, 47 F.R. 12785, as amended by Ex. Ord. No. 12404, §1, Feb. 10, 1983, 48 F.R. 6685; Ex. Ord. No. 13743, §1, Oct. 13, 2016, 81 F.R. 71571, provided:

By the authority vested in me as President by the Constitution of the United States of America, and in order to support and facilitate fund-raising on behalf of voluntary health and welfare organizations through on-the-job solicitations of Federal employees and members of the uniformed services, and to ensure that the recipient organizations are responsible in the uses of the monies so raised, it is hereby ordered as follows:

Section 1.

(a) The Director of the Office of Personnel Management shall make arrangements for voluntary health and welfare organizations to solicit contributions from Federal employees and members of the uniformed services at their places of employment or duty. Federal employees and members of the uniformed services can also be solicited to make pledges of volunteer time. These arrangements shall take the form of an annual Combined Federal Campaign in which eligible voluntary health and welfare organizations are authorized to take part.

(b) The Director shall consider permitting annuitants to make contributions to the Combined Federal Campaign through allotments or assignments of amounts from their Federal annuities. The Director may prescribe rules and regulations to govern the solicitation of such contributions and make arrangements to inform annuitants of their ability to make contributions in this manner.

Sec. 2. (a) The Director shall establish criteria for determining the eligibility of voluntary health and welfare organizations that may participate in each of the annual Combined Federal Campaigns.

(b) In establishing those criteria, the Director shall be guided by the following principles and policies:

(1) The objectives of the Combined Federal Campaign are to lessen the burdens of government in meeting needs of human health and welfare; to provide a convenient channel through which Federal public servants may contribute to these efforts; to minimize or eliminate disruption of the Federal workplace and costs to Federal taxpayers that such fund-raising may entail; and to avoid the reality and appearance of the use of Federal resources in aid of fund-raising for political activity or advocacy of public policy, lobbying, or philanthropy of any kind that does not directly serve needs of human health and welfare.

(2) To meet these objectives, eligibility for participation in the Combined Federal Campaign shall be limited to voluntary, charitable, health and welfare organizations that provide or support direct health and welfare services to individuals or their families. Such direct health and welfare services must be available to Federal employees in the local campaign solicitation area, unless they are rendered to needy persons overseas. Such services must directly benefit human beings, whether children, youth, adults, the aged, the ill and infirm, or the mentally or physically handicapped. Such services must consist of care, research or education in the fields of human health or social adjustment and rehabilitation; relief of victims of natural disasters and other emergencies; or assistance to those who are impoverished and therefore in need of food, shelter, clothing, education, and basic human welfare services.

(3) Organizations that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves shall not be deemed charitable health and welfare organizations and shall not be eligible to participate in the Combined Federal Campaign.

(4) International organizations that provide health and welfare services overseas, and that meet the eligibility criteria except for the local services criterion, shall be eligible to participate in each local solicitation area of the Combined Federal Campaign.

(5) Local voluntary, charitable, health and welfare organizations that are not affiliated with a national organization or federation but that satisfy the eligibility criteria set forth in this order and by the Director shall be permitted to participate in the Combined Federal Campaign.

Sec. 3. In making arrangements for the Combined Federal Campaign, the Director is authorized, in his discretion, to consult with the Departments and agencies concerned, representatives of the employees and members to be solicited, and, to the extent practicable, representatives of voluntary health and welfare organizations seeking to participate in a Combined Federal Campaign.

Sec. 4. The arrangements made by the Director shall (a) ensure that all contributions are voluntary, that there is no coercion, and that individuals have the option of disclosing their contribution or keeping it confidential, (b) designate the specific period during which the annual solicitation may be conducted, and (c) permit only one annual solicitation except in cases of emergency or disaster appeals for which specific provision shall be made by the Director.

Sec. 5. Subject to such rules and regulations as the Director may prescribe, the Director may authorize:

(a) outreach coordinators to conduct campaign promotion in a local Combined Federal Campaign; and

(b) central campaign administrators to administer application and pledging systems and to collect and disburse pledged funds.

Such authorizations shall, if made, ensure at a minimum that outreach coordinators and central campaign administrators operate subject to the direction and control of the Director and such local Federal coordinating entities as may be established; and manage the Combined Federal Campaign fairly and equitably. The Director may consult with and consider advice from interested parties and organizations, and shall publish reports on the management and results of the Combined Federal Campaign.

Sec. 6. The methods for the solicitation of funds shall clearly specify the eligible organizations and provide a direct means to designate funds to such organizations. Where allocation of undesignated funds by the central campaign administrator is authorized by the Director, prominent notice of the authorization for such allocation shall be provided.

Sec. 7. This Order shall not apply to solicitations conducted by organizations composed of civilian employees or members of the uniformed services among their own members for organizational support or for the benefit of welfare funds for their members. Such solicitations shall be conducted under policies and procedures approved by the head of the Department or agency concerned.

Sec. 8. The Director shall prescribe such rules and regulations as may be necessary to implement this Order.

Sec. 9. Executive Order No. 10927 [Mar. 18, 1961, 26 F.R. 2383], as amended, is revoked. Notwithstanding that revocation, directives issued under that Order shall continue in effect until revoked or modified under the provisions of this Order.

[Section 2(d) of Ex. Ord. No. 13743 provided that all rules, regulations, and directives continued or issued under Ex. Ord. No. 12353, set out above, would continue in effect until revoked or modified under the provisions of Ex. Ord. No. 13743.]

[Section 2 of Ex. Ord. No. 12404 provided that all rules, regulations, and directives continued or issued under Ex. Ord. No. 12353, set out above, would continue in full force and effect until revoked or modified under the provisions of Ex. Ord. No. 12404.]

¹ As amended July 11, 1978.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 95–454, title II, §201(a), Oct. 13, 1978, 92 Stat. 1119.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 632 (2d–4th pars.).	Jan. 16, 1883, ch. 27, §1 (2d, 3d pars.), 22 Stat. 403. July 31, 1956, ch. 804, §201(a), 70 Stat. 742.

In subsection (a), the second sentence is substituted for original language concerning designation of Commissioners to serve six, four, and two years, respectively, as that provision is executed.

The section is reorganized to place the statutes relating to vacancies together, and redundancies are eliminated. Provisions relating to pay and travel expenses of Commissioners are omitted as superseded by the Act of Aug. 14, 1964, Pub. L. 88–426, §303(c)(18), (d)(66), 78 Stat. 417, 419, and Act of June 9, 1949, ch. 185, 63 Stat. 166, respectively, which are carried into this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Director; Deputy Director; Associate Directors" for "Term of office; filling vacancies; removal" in section catchline, and in text provisions relating to the Director, Deputy Director, and Associate Directors of the Office of Personnel Management for provisions relating to the term of office, vacancies, and removal of members of the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(c)(1) The Office of Personnel Management shall design a set of systems, including appropriate metrics, for assessing the management of human capital by Federal agencies.

(2) The systems referred to under paragraph (1) shall be defined in regulations of the Office of Personnel Management and include standards for—

(A)(i) aligning human capital strategies of agencies with the missions, goals, and organizational objectives of those agencies; and

(ii) integrating those strategies into the budget and strategic plans of those agencies;

(B) closing skill gaps in mission critical occupations;

(C) ensuring continuity of effective leadership through implementation of recruitment, development, and succession plans;

(D) sustaining a culture that cultivates and develops a high performing workforce;

(E) developing and implementing a knowledge management strategy supported by appropriate investment in training and technology; and

(F) holding managers and human resources officers accountable for efficient and effective human resources management in support of agency missions in accordance with merit system principles.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 95–454, title II, §201(a), Oct. 13, 1978, 92 Stat. 1119; Pub. L. 99–251, title III, §§301, 302, Feb. 27, 1986, 100 Stat. 26; Pub. L. 107–296, title XIII, §1304, Nov. 25, 2002, 116 Stat. 2289.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	[Uncodified].	1949 Reorg. Plan No. 5, §§1, 2(a) (35th through 46th words), 3, eff. Aug. 20, 1949, 63 Stat. 1067, 1069.
	5 U.S.C. 632 (5th par.).	July 31, 1956, ch. 804, §201(b), 70 Stat. 742.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2002—Subsec. (c). Pub. L. 107–296 added subsec. (c).

1986—Subsec. (a)(9). Pub. L. 99–251, §301, added par. (9).

Subsec. (b)(4). Pub. L. 99–251, §302, added par. (4).

1978—Pub. L. 95–454 substituted "Functions of the Director" for "Chairman; Vice Chairman; Executive Director" in section catchline, and in text provisions relating to the functions of the Director of the Office of Personnel Management for provisions relating to the Chairman, Vice Chairman, and Executive Director of the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Pub. L. 107–296, title XIII, §1305, Nov. 25, 2002, 116 Stat. 2289, provided that: "This subtitle [subtitle A (§§1301–1305) of title XIII of Pub. L. 107–296, enacting chapter 14 of this title, amending this section, and enacting provisions set out as a note under section 1401 of this title] shall take effect 180 days after the date of enactment of this Act [Nov. 25, 2002]."

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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) 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).

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 90–83, §1(2), Sept. 11, 1967, 81 Stat. 195; Pub. L. 95–454, title II, §201(a), Oct. 13, 1978, 92 Stat. 1120; Pub. L. 104–52, title IV, §1, Nov. 19, 1995, 109 Stat. 489.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	[Uncodified].	1949 Reorg. Plan No. 5, §2(a) (less 35th through 46th words), (b), eff. Aug. 20, 1949, 63 Stat. 1067.
	5 U.S.C. 3013(a) (1st sentence, less 10th through 24th words).	Sept. 28, 1959, Pub. L. 86–382, §14(a) (1st sentence, less 10th through 24th words), 73 Stat. 716.

In the first sentence, the word "officers" is omitted as included in "employees".

Subsection (a)(1) is added on authority of the words "to secure accuracy, uniformity, and justice in all their proceedings" in the first sentence of former section 635, which is carried into section 1105. The function in this paragraph was transferred from the chief examiner to the Chairman of the United States Civil Service Commission by 1949 Reorg. Plan No. 5, §2(a)(2).

In subsection (a)(4), the words "requests for appropriations" are substituted for "budget estimates" on authority of the Act of Sept. 12, 1950, ch. 946, §102(f), 64 Stat. 833; 31 U.S.C. 22.

In subsection (b)(2), the word "prescription" is substituted for "promulgation" and the words "now vested in the Commission" are omitted as surplusage.

In subsection (b)(4), the words "as is now authorized to be taken by the Commission" are omitted as surplusage.

In subsection (b)(5), the words "civil service" are substituted for "Federal service".

In subsection (b)(7), the words "submission of requests for appropriations" are substituted for "revision and submission . . . of budget estimates" on authority of the Act of Sept. 12, 1950, ch. 946, §102(f), 64 Stat. 833; 31 U.S.C. 22.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
1104(a)(6)	5:8713(a).	[None.]
	[Uncodified].	1965 Reorg. Plan No. 4, §§11(a), (e) (as applicable to (a)), 12 (as applicable to §11(a)), 13 (as applicable to §11(a)), eff. July 27, 1965, 79 Stat. 1322.

The paragraph added by this section is based on 5 U.S.C. 8713(a), and is restated to reflect the effect of sections 11–13 of 1965 Reorganization Plan No. 4, effective July 27, 1965.

Editorial Notes

Amendments

1995—Subsec. (a). Pub. L. 104–52, §1(1)(B), struck out closing provisions which read as follows: "except that the Director may not delegate authority for competitive examinations with respect to positions that have requirements which are common to agencies in the Federal Government, other than in exceptional cases in which the interests of economy and efficiency require such delegation and in which such delegation will not weaken the application of the merit system principles."

Subsec. (a)(2). Pub. L. 104–52, §1(1)(A), inserted ", 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)" after "title" and substituted period for semicolon at end.

Subsec. (b)(4). Pub. L. 104–52, §1(2), added par. (4).

1978—Pub. L. 95–454 substituted "Delegation of authority for personnel management" for "Functions of Chairman" in section catchline, and in text provisions relating to the delegation of authority for personnel management for provisions relating to functions of the Chairman of the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 400; Pub. L. 95–454, title II, §201(a), Oct. 13, 1978, 92 Stat. 1121.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 635 (less last 24 words of 6th sentence, and less 7th sentence).	Jan. 16, 1883, ch. 27, §3 (less last 24 words of 6th sentence, and less 7th sentence), 22 Stat. 404.
	[Uncodified].	1949 Reorg. Plan No. 5, §4, eff. Aug. 19, 1949, 63 Stat. 1069.

In subsection (a), the words "the District of Columbia" are substituted for "Washington". The words "at least three individuals in the service of the United States" are substituted for a "a suitable number of persons, not less than three, in the official service of the United States". So much of the first three sentences of former section 635 as related to the offices of the Chief Examiner and the Secretary are omitted because the offices were abolished by 1949 Reorg. Plan No. 5, §4. So much of the first sentence as imposed a duty on the Chief Examiner, under the Commission's direction, to act with the examining boards to secure accuracy, uniformity, and justice in all their proceedings is restated in section 1104(a)(1). The fourth sentence of former section 635, authorizing the Commission to employ a stenographer and a messenger, is omitted as obsolete. The remainder is rewritten for clarity. The text of 1949 Reorg. Plan No. 5, §4, is omitted as executed.

In subsection (b), the words "Chairman, United States Civil Service Commission" are substituted for "chief examiner" on authority of 1949 Reorg. Plan No. 5, §2(a)(2). The words "at all times" are omitted as surplusage.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Administrative procedure" for "Boards of examiners" in section catchline, and in text provisions relating to administrative procedure applicable to administration of this chapter for provisions relating to boards of examiners for the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I—MERIT SYSTEMS PROTECTION BOARD

        

SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL

        

        

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

        

Editorial Notes

Amendments

1989—Pub. L. 101–12, §3(b)(2), (3), Apr. 10, 1989, 103 Stat. 31, substituted ", OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT OF ACTION" for "AND SPECIAL COUNSEL" in chapter heading, and amended chapter analysis generally, inserting subchapter I heading, and in item 1204 substituting "Powers and functions of the Merit Systems Protection Board" for "Special Counsel; appointment and removal", in item 1205 substituting "Transmittal of information to Congress" for "Powers and functions of the Merit Systems Protection Board and Special Counsel", in item 1206 substituting "Annual report" for "Authority and responsibilities of the Special Counsel", omitting items 1207 "Hearings and decisions on complaints filed by the Special Counsel", 1208 "Stays of certain personnel actions", and 1209 "Information", and inserting subchapters II and III headings and items 1211 to 1219, 1221, and 1222.

¹ So in original. Does not conform to section catchline.

SUBCHAPTER I—MERIT SYSTEMS PROTECTION BOARD

Editorial Notes

Amendments

1989—Pub. L. 101–12, §3(b)(4), Apr. 10, 1989, 103 Stat. 31, inserted subchapter heading.

§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.

(Added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1121; amended Pub. L. 101–12, §3(a)(1), Apr. 10, 1989, 103 Stat. 16.)

Editorial Notes

Amendments

1989—Pub. L. 101–12 substituted "The members" for "The Chairman and members" in second sentence.

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Pub. L. 101–12, §11, Apr. 10, 1989, 103 Stat. 35, provided that: "This Act and the amendments made by this Act [see Short Title of 1989 Amendment note below] shall take effect 90 days following the date of enactment of this Act [Apr. 10, 1989]."

Effective Date

Subchapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

Short Title of 1989 Amendment

Pub. L. 101–12, §1, Apr. 10, 1989, 103 Stat. 16, provided that: "This Act [enacting subchapters II and III of this chapter and section 3352 of this title, amending this section and sections 1202 to 1206, 1209, 1211, 2302, 2303, 3393, 7502, 7512, 7521, 7542, 7701, and 7703 of this title and section 4139 of Title 22, Foreign Relations and Intercourse, repealing sections 1207 and 1208 of this title, and enacting provisions set out as notes under this section and sections 1211 and 5509 of this title] may be cited as the 'Whistleblower Protection Act of 1989'."

Savings Provision

Pub. L. 101–12, §7, Apr. 10, 1989, 103 Stat. 34, provided that:

"(a) Orders, Rules, and Regulations.—All orders, rules, and regulations issued by the Merit Systems Protection Board or the Special Counsel before the effective date of this Act [see Effective Date of 1989 Amendment note above] shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed.

"(b) Administrative Proceedings.—No provision of this Act [see Short Title of 1989 Amendment note above] shall affect any administrative proceeding pending at the time such provisions take effect. Orders shall be issued in such proceedings, and appeals shall be taken therefrom, as if this Act had not been enacted.

"(c) Suits and Other Proceedings.—No suit, action, or other proceeding lawfully commenced by or against the members of the Merit Systems Protection Board, the Special Counsel, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act [see Effective Date of 1989 Amendment note above], shall abate by reason of the enactment of this Act. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted."

Whistleblower Protection; Congressional Statement of Findings and Purpose

Pub. L. 101–12, §2, Apr. 10, 1989, 103 Stat. 16, provided that:

"(a) Findings.—The Congress finds that—

"(1) Federal employees who make disclosures described in section 2302(b)(8) of title 5, United States Code, serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures;

"(2) protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service; and

"(3) in passing the Civil Service Reform Act of 1978 [Pub. L. 95–454, see Tables for classification], Congress established the Office of Special Counsel to protect whistleblowers (those individuals who make disclosures described in such section 2302(b)(8)) from reprisal.

"(b) Purpose.—The purpose of this Act [see Short Title of 1989 Amendment note above] is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by—

"(1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and

"(2) establishing—

"(A) that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices;

"(B) that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and

"(C) that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration."

Terms of Office of Members

Pub. L. 95–454, title II, §202(b), Oct. 13, 1978, 92 Stat. 1131, provided that: "Any term of office of any member of the Merit Systems Protection Board serving on the effective date of this Act [see Effective Date of 1978 Amendment note set out under section 1101 of this title] shall continue in effect until the term would expire under section 1102 of title 5, United States Code, as in effect immediately before the effective date of this Act, and upon expiration of the term, appointments to such office shall be made under sections 1201 and 1202 of title 5, United States Code (as added by this section)."

§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.

(Added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1122; amended Pub. L. 100–202, §101(m) [title VI, §620], Dec. 22, 1987, 101 Stat. 1329–390, 1329-427; Pub. L. 101–12, §3(a)(2), (3), Apr. 10, 1989, 103 Stat. 17.)

Editorial Notes

Amendments

1989—Pub. L. 101–12, §3(a)(2), substituted a semicolon for the comma after "office" in section catchline.

Subsec. (b). Pub. L. 101–12, §3(a)(3), substituted "the member's" for "his" in first sentence and struck out "of this title" after "section 1201" in second sentence.

1987—Subsec. (b). Pub. L. 100–202 inserted provision permitting any new member serving portion of seven-year term to continue serving until successor is appointed and has qualified, with exception limiting duration of such service.

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

§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.

(Added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1122; amended Pub. L. 101–12, §3(a)(4), (5), Apr. 10, 1989, 103 Stat. 17.)

Editorial Notes

Amendments

1989—Subsec. (a). Pub. L. 101–12, §3(a)(4), struck out the comma after "time" in first sentence.

Subsec. (c). Pub. L. 101–12, §3(a)(5), substituted "the Chairman and the Vice Chairman" for "the Chairman and Vice Chairman" after "both".

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

§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 where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case 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)).

(n) The Board may accept and use gifts and donations of property and services to carry out the duties of the Board.

(Added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1122, §1205; amended Pub. L. 97–258, §3(a)(2), Sept. 13, 1982, 96 Stat. 1063; renumbered §1204 and amended Pub. L. 101–12, §3(a)(7), Apr. 10, 1989, 103 Stat. 17; Pub. L. 102–568, title V, §506(c)(4), Oct. 29, 1992, 106 Stat. 4341; Pub. L. 103–353, §2(b)(2)(A), Oct. 13, 1994, 108 Stat. 3169; Pub. L. 103–424, §2, Oct. 29, 1994, 108 Stat. 4361; Pub. L. 103–446, title XII, §1203(c)(1), Nov. 2, 1994, 108 Stat. 4690; Pub. L. 112–199, title I, §107(a), Nov. 27, 2012, 126 Stat. 1469; Pub. L. 113–76, div. E, title V, Jan. 17, 2014, 128 Stat. 217.)

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Prior Provisions

A prior section 1204 was renumbered section 1211(b) of this title by Pub. L. 101–12, §3(a)(6). Pub. L. 102–378, §2(3), Oct. 2, 1992, 106 Stat. 1346, struck out section catchline of prior section 1204.

Amendments

2014—Subsec. (n). Pub. L. 113–76 added subsec. (n).

2012—Subsec. (m)(1). Pub. L. 112–199 substituted "agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case" for "agency involved".

1994—Subsec. (a)(1). Pub. L. 103–446, which directed the amendment of par. (1) by substituting "section 4303" for "section 4323" could not be executed because the phrase "section 4323" does not appear in text subsequent to the intervening amendment by Pub. L. 103–353 substituting "chapter 43" for "section 4323". See below.

Pub. L. 103–353 substituted "chapter 43" for "section 4323".

Subsec. (m). Pub. L. 103–424 added subsec. (m).

1992—Subsec. (a)(1). Pub. L. 102–568 substituted "4323" for "2023".

1989—Pub. L. 101–12, §3(a)(7), renumbered section 1205 of this title as this section.

Pub. L. 101–12, §3(a)(7)(A), struck out "and Special Counsel" after "Board" in section catchline.

Subsec. (a)(4). Pub. L. 101–12, §3(a)(7)(A), (C), substituted "subsection (f)" for "subsection (e) of this section".

Subsec. (b)(1). Pub. L. 101–12, §3(a)(7)(A), struck out "the Special Counsel," after "Board,".

Subsec. (b)(2). Pub. L. 101–12, §3(a)(7)(D), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Any member of the Board, the Special Counsel, and any administrative law judge appointed by the Board under section 3105 of this title may—

"(A) issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States or any territory or possession thereof, the Commonwealth of Puerto Rico, or the District of Columbia; and

"(B) order the taking of depositions and order responses to written interrogatories."

Subsec. (b)(3). Pub. L. 101–12, §3(a)(7)(B), substituted "subpoena" for "subpena" and "subpoenaed" for "subpenaed".

Subsec. (c). Pub. L. 101–12, §3(a)(7)(B), (E), substituted "subpoena" for "subpena" in two places, "(b)(2)(A) or section 1214(b), upon application by the Board" for "(b)(2) of this section", and "for the district" for "for the judicial district".

Subsec. (d). Pub. L. 101–12, §3(a)(7)(F), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 101–12, §3(a)(7)(F), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (e)(1). Pub. L. 101–12, §3(a)(7)(A), (G)(i), designated existing provisions as subpar. (A), struck out "of this section" after "subsection (a)(1)", and added subpar. (B).

Subsec. (e)(2). Pub. L. 101–12, §3(a)(7)(G)(ii), designated existing provisions as subpar. (A), struck out "of this section" after "subsection (a)(2)", and added subpar. (B).

Subsec. (e)(3). Pub. L. 101–12, §3(a)(7)(A), (G)(iii), struck out "of this section" after "subsection (a)(3)" and inserted "of Personnel Management" after "Office".

Subsec. (f). Pub. L. 101–12, §3(a)(7)(F), redesignated former subsec. (e) as (f). Former subsec. (f) redesignated (g).

Subsec. (f)(1). Pub. L. 101–12, §3(a)(7)(H)(i), inserted "of the Office of Personnel Management" after "Director" and struck out "of this title" after "section 1103".

Subsec. (f)(2). Pub. L. 101–12, §3(a)(7)(H)(ii), inserted comma after "subsection" and in subpars. (A) and (B) struck out "of this title" after "section 2302(b)".

Subsec. (f)(3), (4). Pub. L. 101–12, §3(a)(7)(H)(iii), struck out "(A)" before "The Director", struck out subpar. (B) which provided that any review conducted by the Board be limited to determining the validity on its face of the provision under review and whether the provision under review has been validly implemented, and redesignated former subpar. (C) and cls. (i) and (ii) of former subpar. (C) as par. (4) and subpars. (A) and (B), respectively, of par. (4).

Subsecs. (g) to (i). Pub. L. 101–12, §3(a)(7)(F), redesignated former subsecs. (f) to (h) as (g) to (i), respectively. Former subsec. (i) redesignated (j).

Subsec. (j). Pub. L. 101–12, §3(a)(7)(F), (I), redesignated former subsec. (i) as (j) and substituted "chapter 33" for "chapter 33 of this title". Former subsec. (j) redesignated (k).

Subsecs. (k), (l). Pub. L. 101–12, §3(a)(7)(F), redesignated former subsecs. (j) and (k) as (k) and (l), respectively.

1982—Subsec. (j). Pub. L. 97–258 substituted "section 1105 of title 31" for "section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)".

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Pub. L. 112–199, title II, §202, Nov. 27, 2012, 126 Stat. 1476, provided that: "Except as otherwise provided in section 109 [see Effective Date note set out under section 2304 of this title], this Act [see section 1 of Pub. L. 112–199, set out as a Short Title of 2012 Amendment note under section 101 of this title] shall take effect 30 days after the date of enactment of this Act [Nov. 27, 2012]."

Effective Date of 1994 Amendment

Pub. L. 103–424, §14, Oct. 29, 1994, 108 Stat. 4368, provided that: "The provisions of this Act [amending this section and sections 1211, 1212, 1214, 1218, 1221, 2105, 2302, 4313, 7121, and 8348 of this title, enacting provisions set out as notes under sections 1212 and 1214 of this title and section 1441a of Title 12, Banks and Banking, and amending provisions set out as a note under section 5509 of this title] and the amendments made by this Act shall be effective on and after the date of the enactment of this Act [Oct. 29, 1994]."

Amendment by Pub. L. 103–353 effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103–353, set out as an Effective Date note under section 4301 of Title 38, Veterans' Benefits.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Termination of Reporting Requirements

For termination, effective May 15, 2000, of reporting provisions in subsecs. (a)(3) and (l) of this section (formerly 5 U.S.C. 1205(a)(3) and (k)), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 176 of House Document No. 103–7.

§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.

(Added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1131, §1209(a); renumbered §1205 and amended Pub. L. 101–12, §3(a)(9), Apr. 10, 1989, 103 Stat. 18.)

Editorial Notes

Prior Provisions

A prior section 1205 was renumbered section 1204 of this title.

Amendments

1989—Pub. L. 101–12 renumbered section 1209(a) of this title as this section and inserted section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

§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.

(Added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1131, §1209(b); renumbered §1206 and amended Pub. L. 101–12, §3(a)(10), Apr. 10, 1989, 103 Stat. 18.)

Editorial Notes

Prior Provisions

A prior section 1206, added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1125, which related to authority and responsibilities of Special Counsel, was repealed by Pub. L. 101–12, §§3(a)(8), 11, Apr. 10, 1989, 103 Stat. 18, effective 90 days following Apr. 10, 1989. See section 1212 of this title.

Amendments

1989—Pub. L. 101–12 renumbered section 1209(b) of this title as this section and inserted section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Termination of Reporting Requirements

For termination, effective May 15, 2000, of provisions in first sentence of this section relating to annual reports to Congress (formerly 5 U.S.C. 1209(b)), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 176 of House Document No. 103–7.

[§§1207, 1208. Repealed. Pub. L. 101–12, §3(a)(8), Apr. 10, 1989, 103 Stat. 18]

Section 1207, added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1130, provided for hearings and decisions on complaints filed by Special Counsel. See section 1215(a)(2) to (5) of this title.

Section 1208, added Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1130, related to stays of certain personnel actions. See section 1214(b) of this title.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal

Repeal of sections effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.

[§1209. Renumbered §§1205 and 1206]

Editorial Notes

Codification

Subsecs. (a) and (b) of this section were renumbered as sections 1205 and 1206, respectively, of this title by Pub. L. 101–12, §3(a)(9), (10). Pub. L. 102–378, §2(2), Oct. 2, 1992, 106 Stat. 1346, struck out section catchline of prior section 1209.

SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL

§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 predecessor 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.

(Added Pub. L. 101–12, §3(a)(11), Apr. 10, 1989, 103 Stat. 19, §1211(a), and Pub. L. 95–454, title II, §202(a), Oct. 13, 1978, 92 Stat. 1122, §1204; renumbered §1211(b) and amended Pub. L. 101–12, §3(a)(6), (12), Apr. 10, 1989, 103 Stat. 17, 19; Pub. L. 103–424, §3(a), Oct. 29, 1994, 108 Stat. 4361.)

Editorial Notes

Amendments

1994—Subsec. (b). Pub. L. 103–424 inserted after first sentence "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."

1989—Subsec. (b). Pub. L. 101–12, §3(a)(6), (12), renumbered section 1204 of this title as subsec. (b) of this section, substituted "Special Counsel shall be appointed by the President" for "Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys", substituted "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 predecessor serves for the remainder of the term." for "A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of the term.", and inserted at end "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."

Statutory Notes and Related Subsidiaries

Effective Date

Subchapter effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Allegations of Wrongdoing Against Special Counsel or Deputy Special Counsel

Pub. L. 110–409, §7(b), Oct. 14, 2008, 122 Stat. 4312, which provided for review by the Integrity Committee of allegations of wrongdoing against the Special Counsel or the Deputy Special Counsel, was repealed by Pub. L. 114–317, §7(a)(1), Dec. 16, 2016, 130 Stat. 1605. See section 424(d)(12) of this title.

Transfer of Funds

Pub. L. 101–12, §8(c), Apr. 10, 1989, 103 Stat. 34, provided that: "The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available or to be made available to the Special Counsel of the Merit Systems Protection Board are, subject to section 1531 of title 31, United States Code, transferred to the Special Counsel referred to in section 1211 of title 5, United States Code (as added by section 3(a) of this Act), for appropriate allocation."

§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.

(5)(A) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to—

(i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under—

(I) section 1213, 1214, 1215, or 1216 of this title; or

(II) section 4324(a) of title 38;

(ii) request from any agency the information or assistance that may be necessary for the Special Counsel to carry out the duties and responsibilities of the Special Counsel under this subchapter; and

(iii) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under—

(I) section 1213, 1214, 1215, or 1216 of this title; or

(II) section 4324(a) of title 38.

(B)(i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003), unless the Special Counsel is investigating, or otherwise carrying out activities relating to the enforcement of, an action under subchapter III of chapter 73.

(ii) An Inspector General may withhold from the Special Counsel material described in subparagraph (A) if the Inspector General determines that the material contains information derived from, or pertaining to, intelligence activities.

(iii) The Attorney General or an Inspector General may withhold from the Special Counsel material described in subparagraph (A) if—

(I)(aa) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; or

(bb) the material—

(AA) may not be disclosed pursuant to a court order; or

(BB) has been filed under seal under section 3730 of title 31; and

(II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes—

(aa) the material being withheld; and

(bb) the reason that the material is being withheld.

(C)(i) A claim of common law privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described in subparagraph (A)(i) with respect to the agency.

(ii) The submission of material described in subparagraph (A)(i) by an agency to the Special Counsel may not be deemed to waive any assertion of privilege by the agency against a non-Federal entity or against an individual in any other proceeding.

(iii) With respect to any record or other information made available to the Special Counsel by an agency under subparagraph (A), the Special Counsel may only disclose the record or information for a purpose that is in furtherance of any authority provided to the Special Counsel under this subchapter.

(6) The Special Counsel shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the applicable agency a report regarding any case of contumacy or failure to comply with a request submitted by the Special Counsel under paragraph (5)(A).

(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.

(h)(1) The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related to section 2302(b)(8) or (9), or as otherwise authorized by law. In any such action, the Special Counsel is authorized to present the views of the Special Counsel with respect to compliance with section 2302(b)(8) or (9) and the impact court decisions would have on the enforcement of such provisions of law.

(2) A court of the United States shall grant the application of the Special Counsel to appear in any such action for the purposes described under subsection (a).

(i) The Special Counsel shall enter into at least 1 agreement with the Inspector General of an agency under which—

(1) the Inspector General shall—

(A) receive, review, and investigate allegations of prohibited personnel practices or wrongdoing filed by employees of the Office of Special Counsel; and

(B) develop a method for an employee of the Office of Special Counsel to communicate directly with the Inspector General; and

(2) the Special Counsel—

(A) may not require an employee of the Office of Special Counsel to seek authorization or approval before directly contacting the Inspector General in accordance with the agreement; and

(B) may reimburse the Inspector General for services provided under the agreement.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 19; amended Pub. L. 103–424, §3(b), Oct. 29, 1994, 108 Stat. 4362; Pub. L. 112–199, title I, §113, Nov. 27, 2012, 126 Stat. 1472; Pub. L. 115–91, div. A, title X, §1097(a), (g), Dec. 12, 2017, 131 Stat. 1615, 1623.)

Editorial Notes

Amendments

2017—Subsec. (b)(5), (6). Pub. L. 115–91, §1097(a), added pars. (5) and (6).

Subsec. (i). Pub. L. 115–91, §1097(g), added subsec. (i).

2012—Subsec. (h). Pub. L. 112–199 added subsec. (h).

1994—Subsec. (g)(1). Pub. L. 103–424, §3(b)(1) substituted "disclose any information from or about" for "provide information concerning".

Subsec. (g)(2). Pub. L. 103–424, §3(b)(2), substituted "an evaluation of the work performance, ability, aptitude, general qualifications, character, loyalty, or suitability for any personnel action of any" for "a matter described in subparagraph (A) or (B) of section 2302(b)(2) in connection with a".

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Regulations

Pub. L. 115–91, div. A, title X, §1097(m), Dec. 12, 2017, 131 Stat. 1626, provided that:

"(1) In general.—Not later than 2 years after the date of enactment of this Act [Dec. 12, 2017], the Special Counsel shall prescribe such regulations as may be necessary to perform—

"(A) the functions of the Special Counsel under subchapter II of chapter 12 of title 5, United States Code, including regulations that are necessary to carry out sections 1213, 1214, and 1215 of that title; and

"(B) any functions of the Special Counsel that are required because of the amendments made by this section [enacting section 7515 of this title, amending this section and sections 1212 to 1214, 1217 to 1219, 1221, 2302, 4301, 4302, 4313, 4505a, 5755, and 7326 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, repealing section 2307 of this title and former section 7515 of this title, enacting provisions set out as notes under this section and sections 4302, 5509, 7326, and 7503 of this title, and amending provisions set out as notes under this section and sections 2302 and 5509 of this title].

"(2) Publication.—Any regulations prescribed under paragraph (1) shall be published in the Federal Register."

Suicide by Employees

Pub. L. 115–73, title I, §105, Oct. 26, 2017, 131 Stat. 1238, as amended by Pub. L. 115–91, div. A, title X, §1097(l), Dec. 12, 2017, 131 Stat. 1626, provided that:

"(a) Referral.—The head of an agency shall refer to the Special Counsel, along with any information known to the agency regarding the circumstances described in paragraphs (2) and (3), any instance in which the head of the agency has credible information indicating—

"(1) an employee of the agency committed suicide;

"(2) prior to the death of the employee, the employee made any disclosure of information which reasonably evidences—

"(A) any 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; and

"(3) after a disclosure described in paragraph (2), a personnel action was taken against the employee.

"(b) Office of Special Counsel Review.—For any referral to the Special Counsel under subsection (a), the Special Counsel shall—

"(1) examine whether any personnel action was taken because of any disclosure of information described in subsection (a)(2); and

"(2) take any action the Special Counsel determines appropriate under subchapter II of chapter 12 of title 5, United States Code.

"(c) Permission of Next of Kin.—The head of the agency shall only make a referral under subsection (a) regarding an employee after receiving written permission from the next of kin, as such term is defined in section 6381 of title 5, United States Code, of the employee."

[For definitions of "agency", "employee", and "personnel action" as used in section 105 of Pub. L. 115–73, set out above, see section 101 of Pub. L. 115–73, set out below.]

Policy Statement Regarding Implementation of Whistleblower Protection Act

Pub. L. 103–424, §12(a), Oct. 29, 1994, 108 Stat. 4366, provided that: "No later than 6 months after the date of enactment of this Act [Oct. 29, 1994], the Special Counsel shall issue a policy statement regarding the implementation of the Whistleblower Protection Act of 1989 [see Short Title of 1989 Amendment note set out under section 1201 of this title]. Such policy statement shall be made available to each person alleging a prohibited personnel practice described under section 2302(b)(8) of title 5, United States Code, and shall include detailed guidelines identifying specific categories of information that may (or may not) be communicated to agency officials for an investigative purpose, or for the purpose of obtaining corrective action under section 1214 of title 5, United States Code, or disciplinary action under section 1215 of such title, the circumstances under which such information is likely to be disclosed, and whether or not the consent of any person is required in advance of any such communication."

Annual Survey of Individuals Seeking Assistance

Pub. L. 103–424, §13, Oct. 29, 1994, 108 Stat. 4367, provided that:

"(a) In General.—The Office of Special Counsel shall, after consulting with the Office of Policy and Evaluation of the Merit Systems Protection Board, conduct an annual survey of all individuals who contact the Office of Special Counsel for assistance. The survey shall—

"(1) determine if the individual seeking assistance was fully apprised of their rights;

"(2) determine whether the individual was successful either at the Office of Special Counsel or the Merit Systems Protection Board; and

"(3) determine if the individual, whether successful or not, was satisfied with the treatment received from the Office of Special Counsel.

"(b) Report.—The results of the survey conducted under subsection (a) shall be published in the annual report of the Office of Special Counsel."

Definitions

Pub. L. 115–73, title I, §101, Oct. 26, 2017, 131 Stat. 1235, provided that: "In this title [enacting sections 2307 and 7515 of this title, amending sections 1214, 1221, 2302, 4505a, and 5755 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under this section and section 2301 of this title, and amending provisions set out as a note under section 2302 of this title]—

"(1) the term 'agency'—

"(A) except as provided in subparagraph (B), means an entity that is an agency, as defined under section 2302 of title 5, United States Code, without regard to whether one or more portions of title 5 of the United States Code are inapplicable to the entity; and

"(B) does not include any entity that is an element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4));

"(2) the term 'employee' means an employee (as defined in section 2105 of title 5, United States Code) of an agency; and

"(3) the term 'personnel action' has the meaning given that term under section 2302 of title 5, United States Code."

§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 45 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 report required under subsection (c) or paragraph (5) of this subsection 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 that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether—

(A) the findings of the head of the agency appear reasonable; and

(B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).

(3) The Special Counsel shall transmit any report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection, 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.

(5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—

(A) containing the additional information or documentation identified by the Special Counsel; and

(B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.

(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.

(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 inform the individual of—

(A) the reasons why the disclosure may not be further acted on under this chapter; and

(B) 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.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 21; amended Pub. L. 104–316, title I, §103(a), Oct. 19, 1996, 110 Stat. 3828; Pub. L. 107–304, §3, Nov. 27, 2002, 116 Stat. 2364; Pub. L. 115–91, div. A, title X, §1097(c)(2), Dec. 12, 2017, 131 Stat. 1618.)

Editorial Notes

Amendments

2017—Subsec. (b). Pub. L. 115–91, §1097(c)(2)(A), substituted "45 days" for "15 days".

Subsec. (e)(1). Pub. L. 115–91, §1097(c)(2)(B)(i), substituted "Any report required under subsection (c) or paragraph (5) of this subsection" for "Any such report".

Subsec. (e)(2). Pub. L. 115–91, §1097(c)(2)(B)(ii), added par. (2) and struck out former par. (2) which related to review of any report of the head of an agency required under subsection (c).

Subsec. (e)(3). Pub. L. 115–91, §1097(c)(2)(B)(iii), substituted "report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection" for "agency report received pursuant to subsection (c) of this section".

Subsec. (e)(5). Pub. L. 115–91, §1097(c)(2)(B)(iv), added par. (5).

2002—Subsec. (g)(1). Pub. L. 107–304, §3(1), struck out at end "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."

Subsec. (g)(3). Pub. L. 107–304, §3(2), added par. (3) and struck out former par. (3) which read as follows: "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."

1996—Subsec. (e)(3). Pub. L. 104–316, §103(a)(1), substituted "President and" for "President," and struck out ", and the Comptroller General" before period at end.

Subsec. (e)(4). Pub. L. 104–316, §103(a)(2), substituted "President and" for "President," and struck out ", and the Comptroller General" before "together with a".

§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) or section 2302(b)(9)(A)(i), (B), (C), or (D) 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.

(6)(A) Notwithstanding any other provision of this section, not later than 30 days after the date on which the Special Counsel receives an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry if the Special Counsel determines that—

(i) the same allegation, based on the same set of facts and circumstances, had previously been—

(I)(aa) made by the individual; and

(bb) investigated by the Special Counsel; or

(II) filed by the individual with the Merit Systems Protection Board;

(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or

(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.

(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.

(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 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the request for the stay by the Special Counsel.

(B)(i) The Board may extend the period of any stay granted under subparagraph (A) for any period which the Board considers appropriate.

(ii) If the Board lacks the number of members appointed under section 1201 required to constitute a quorum, any remaining member of the Board may, upon request by the Special Counsel, extend the period of any stay granted under subparagraph (A).

(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.

(E) If the Board grants a stay under subparagraph (A), the head of the agency employing the employee who is the subject of the action shall give priority to a request for a transfer submitted by the employee.

(2)(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.

(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) 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.

(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) or section 2302(b)(9)(A)(i), (B), (C), or (D), 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) or section 2302(b)(9)(A)(i), (B), (C), or (D), the Board shall order such corrective action as the Board considers appropriate if the Special Counsel has demonstrated that a disclosure or protected activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) 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, after a finding that a protected disclosure was a contributing factor, 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, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).

(h) Any corrective action ordered under this section to correct a prohibited personnel practice may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.

(i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), without regard to whether a personnel action, as defined in section 2302(a)(2)(A), is taken.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 23; amended Pub. L. 103–424, §§3(c), (d), 8(a), Oct. 29, 1994, 108 Stat. 4362, 4364; Pub. L. 112–199, title I, §§101(b)(1)(A), (2)(A), 104(c)(1), 107(b), 114(a), Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L. 115–42, §1, June 27, 2017, 131 Stat. 883; Pub. L. 115–73, title I, §102(a), Oct. 26, 2017, 131 Stat. 1236; Pub. L. 115–91, div. A, title X, §1097(c)(3)(A), (4), (f), (j), Dec. 12, 2017, 131 Stat. 1619, 1622, 1625.)

Editorial Notes

Amendments

2017—Subsec. (a)(6). Pub. L. 115–91, §1097(f), added par. (6).

Subsec. (b)(1)(B). Pub. L. 115–42 designated existing provisions as cl. (i) and added cl. (ii).

Subsec. (b)(1)(B)(ii). Pub. L. 115–91, §1097(j), struck out "who was appointed, by and with the advice and consent of the Senate," after "member of the Board".

Subsec. (b)(1)(E). Pub. L. 115–91, §1097(c)(3)(A), added subpar. (E) and struck out former subpar. (E) which read as follows: "If the Merit Systems Protection Board grants a stay under this subsection, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee."

Pub. L. 115–73 added subpar. (E).

Subsec. (i). Pub. L. 115–91, §1097(c)(4), added subsec. (i).

2012—Subsecs. (a)(3), (b)(4)(A). Pub. L. 112–199, §101(b)(1)(A), inserted "or section 2302(b)(9)(A)(i), (B), (C), or (D)" after "section 2302(b)(8)".

Subsec. (b)(4)(B)(i). Pub. L. 112–199, §101(b)(1)(A), (2)(A), inserted "or section 2302(b)(9)(A)(i), (B), (C), or (D)" after "section 2302(b)(8)" in two places and inserted "or protected activity" after "disclosure".

Subsec. (b)(4)(B)(ii). Pub. L. 112–199, §114(a), inserted ", after a finding that a protected disclosure was a contributing factor," after "ordered if".

Subsec. (g)(2). Pub. L. 112–199, §107(b), substituted "any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs)." for "and any other reasonable and foreseeable consequential damages."

Subsec. (h). Pub. L. 112–199, §104(c)(1), added subsec. (h).

1994—Subsec. (a)(1)(D). Pub. L. 103–424, §3(c)(1), added subpar. (D).

Subsec. (a)(2)(A)(iv). Pub. L. 103–424, §3(c)(2), added cl. (iv).

Subsec. (b)(2). Pub. L. 103–424, §3(d), added subpars. (A) and (E) and redesignated former subpars. (A) to (C) as (B) to (D), respectively.

Subsec. (g). Pub. L. 103–424, §8(a), added subsec. (g).

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Termination Statement

Pub. L. 103–424, §12(b), Oct. 29, 1994, 108 Stat. 4367, provided that: "The Special Counsel shall include in any letter terminating an investigation under section 1214(a)(2) of title 5, United States Code, the name and telephone number of an employee of the Special Counsel who is available to respond to reasonable questions from the person regarding the investigation or review conducted by the Special Counsel, the relevant facts ascertained by the Special Counsel, and the law applicable to the person's allegations."

§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) A final order of the Board may impose—

(i) disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;

(ii) an assessment of a civil penalty not to exceed $1,000; or

(iii) any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii).

(B) In any case brought under paragraph (1) in which the Board finds that an employee has committed a prohibited personnel practice under section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D), the Board may impose disciplinary action if the Board finds that the activity protected under section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) was a significant motivating factor, even if other factors also motivated the decision, for the employee's decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by a preponderance of the evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.

(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.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 27; amended Pub. L. 112–199, title I, §106, Nov. 27, 2012, 126 Stat. 1468.)

Editorial Notes

Amendments

2012—Subsec. (a)(3). Pub. L. 112–199 amended par. (3) generally. Prior to amendment, par. (3) read as follows: "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."

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

§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.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 28; amended Pub. L. 103–94, §3, Oct. 6, 1993, 107 Stat. 1004.)

Editorial Notes

Amendments

1993—Subsec. (c). Pub. L. 103–94 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:

"(1) If an investigation by the Special Counsel under subsection (a)(1) substantiates an allegation relating to any activity prohibited under section 7324, the Special Counsel may petition the Merit Systems Protection Board for any penalties provided for under section 7325.

"(2) If the Special Counsel receives an allegation concerning any matter under paragraph (3), (4), or (5) of subsection (a), the Special Counsel may investigate and seek corrective action under section 1214 in the same way as if a prohibited personnel practice were involved."

Statutory Notes and Related Subsidiaries

Effective Date of 1993 Amendment; Savings Provision

Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

§1217. Transmittal of information to Congress

(a) In General.—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.

(b) Additional Report Required.—

(1) In general.—If an allegation submitted to the Special Counsel is resolved by an agreement between an agency and an individual, the Special Counsel shall submit to Congress and each congressional committee with jurisdiction over the agency a report regarding the agreement.

(2) Contents.—Any report required under paragraph (1) shall identify, with respect to an agreement described in that paragraph—

(A) the agency that entered into the agreement;

(B) the position and employment location of the employee who submitted the allegation that formed the basis of the agreement, provided the information is not so specific as to be reasonably likely to identify the employee;

(C) the position and employment location of any employee alleged by an employee described in subparagraph (B) to have committed a prohibited personnel practice, as defined in section 2302(a)(1);

(D) a description of the allegation described in subparagraph (B); and

(E) whether the agency that entered into the agreement has agreed to pursue any disciplinary action as a result of the allegation described in subparagraph (B).

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 28; Pub. L. 115–91, div. A, title X, §1097(h)(3), Dec. 12, 2017, 131 Stat. 1625.)

Editorial Notes

Amendments

2017—Pub. L. 115–91 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

§1218. Annual report

The Special Counsel shall submit to Congress, on an annual basis, a report regarding the activities of the Special Counsel, which shall include, for the year preceding the submission of the report—

(1) the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel and the costs of resolving such allegations;

(2) the number of investigations conducted by the Special Counsel;

(3) the number of stays and disciplinary actions negotiated with agencies by the Special Counsel;

(4) the number of subpoenas issued by the Special Counsel;

(5) the number of instances in which the Special Counsel reopened an investigation after the Special Counsel had made an initial determination with respect to the investigation;

(6) the actions that resulted from reopening investigations, as described in paragraph (5);

(7) the number of instances in which the Special Counsel did not make a determination before the end of the 240-day period described in section 1214(b)(2)(A)(i) regarding whether there were reasonable grounds to believe that a prohibited personnel practice had occurred, existed, or was to be taken;

(8) a description of the recommendations and reports made by the Special Counsel to other agencies under this subchapter and the actions taken by the agencies as a result of the recommendations or reports;

(9) the number of—

(A) actions initiated before the Merit Systems Protection Board, including the number of corrective action petitions and disciplinary action complaints initiated; and

(B) stays and extensions of stays obtained from the Merit Systems Protection Board;

(10) the number of prohibited personnel practice complaints that resulted in a favorable action for the complainant, other than a stay or an extension of a stay, organized by actions in—

(A) complaints dealing with reprisals against whistleblowers; and

(B) all other complaints;

(11) the number of prohibited personnel practice complaints that were resolved by an agreement between an agency and an individual, organized by agency and agency components in—

(A) complaints dealing with reprisals against whistleblowers; and

(B) all other complaints;

(12) the number of corrective actions that the Special Counsel required an agency to take after a finding by the Special Counsel of a prohibited personnel practice, as defined in section 2302(a)(1); and

(13) the results for the Office of Special Counsel of any employee viewpoint survey conducted by the Office of Personnel Management or any other agency.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103–424, §3(e), Oct. 29, 1994, 108 Stat. 4363; Pub. L. 115–91, div. A, title X, §1097(h)(1), Dec. 12, 2017, 131 Stat. 1623.)

Editorial Notes

Amendments

2017—Pub. L. 115–91 amended section generally. Prior to amendment, text read as follows: "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."

1994—Pub. L. 103–424 inserted "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)," after "investigations conducted by it,".

Statutory Notes and Related Subsidiaries

Termination of Reporting Requirements

For termination, effective May 15, 2000, of reporting provisions in this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 188 of House Document No. 103–7.

§1219. Public information

(a) The Special Counsel shall maintain and make available to the public—

(1) a list of any noncriminal matters referred to the head of an agency under section 1213(c), together with—

(A) a copy of the information transmitted to the head of the agency under section 1213(c)(1);

(B) any report from the agency under section 1213(c)(1)(B) relating to the matter;

(C) if appropriate, not otherwise prohibited by law, and consented to by the complainant, any comments from the complainant under section 1213(e)(1) relating to the matter; and

(D) the comments or recommendations of the Special Counsel under paragraph (3) or (4) of section 1213(e);

(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.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 29; Pub. L. 115–91, div. A, title X, §1097(h)(2), Dec. 12, 2017, 131 Stat. 1624.)

Editorial Notes

Amendments

2017—Subsec. (a)(1). Pub. L. 115–91 amended par. (1) generally. Prior to amendment, par. (1) read as follows: "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;".

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

§1221. Individual right of action in certain reprisal cases

(a) Subject to the provisions of subsection (b) of this section and subsection 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) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.

(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) or section 2302(b)(9)(A)(i), (B), (C), or (D), 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 or protected activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) 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 or protected activity 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 or protected activity; and

(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.

(2) Corrective action under paragraph (1) may not be ordered if, after a finding that a protected disclosure was a contributing factor, 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) 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.

(g)(1)(A) If the Board orders corrective action under this section, such corrective action may include—

(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, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).

(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 emloyee,¹ 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.

(4) Any corrective action ordered under this section to correct a prohibited personnel practice may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.

(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) through (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) or section 2302(b)(9)(A)(i), (B), (C), or (D) 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.

(k) If the Board grants a stay under subsection (c) and the employee who is the subject of the action is in probationary status, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103–424, §§4, 8(b), Oct. 29, 1994, 108 Stat. 4363, 4365; Pub. L. 112–199, title I, §§101(b)(1)(A), (2)(A), 104(c)(2), 107(b), 114(b), Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L. 115–73, title I, §102(b), Oct. 26, 2017, 131 Stat. 1236; Pub. L. 115–91, div. A, title X, §1097(c)(3)(B), Dec. 12, 2017, 131 Stat. 1619.)

Editorial Notes

Amendments

2017—Subsec. (k). Pub. L. 115–91 added subsec. (k) and struck out former subsec. (k) which read as follows: "If the Merit Systems Protection Board grants a stay to an employee in probationary status under subsection (c), the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee."

Pub. L. 115–73 added subsec. (k).

2012—Subsec. (a). Pub. L. 112–199, §101(b)(1)(A), inserted "or section 2302(b)(9)(A)(i), (B), (C), or (D)" after "section 2302(b)(8)".

Subsec. (e)(1). Pub. L. 112–199, §101(b)(1)(A), (2)(A), inserted "or section 2302(b)(9)(A)(i), (B), (C), or (D)" after "section 2302(b)(8)" in two places and inserted "or protected activity" after "disclosure" wherever appearing.

Subsec. (e)(2). Pub. L. 112–199, §114(b), inserted ", after a finding that a protected disclosure was a contributing factor," after "ordered if".

Subsec. (g)(1)(A)(ii). Pub. L. 112–199, §107(b), substituted "any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs)." for "and any other reasonable and foreseeable consequential changes."

Subsec. (g)(4). Pub. L. 112–199, §104(c)(2), added par. (4).

Subsec. (i). Pub. L. 112–199, §101(b)(1)(A), inserted "or section 2302(b)(9)(A)(i), (B), (C), or (D)" after "section 2302(b)(8)".

1994—Subsec. (d)(1). Pub. L. 103–424, §4(a), added par. (1) and struck out former par. (1) which read as follows: "At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board may 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 such subpoena is necessary for the development of relevant evidence."

Subsec. (e)(1). Pub. L. 103–424, §4(b), which directed the amendment of section 1221(e)(1), without specifying the Code title to be amended, by inserting at end "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.", was executed to subsec. (e)(1) of this section to reflect the probable intent of Congress.

Subsec. (f)(3). Pub. L. 103–424, §4(c), added par. (3).

Subsec. (g). Pub. L. 103–424, §8(b), added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Effective Date

Subchapter effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.

¹ So in original. Probably should be "employee,".

§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.

(Added Pub. L. 101–12, §3(a)(13), Apr. 10, 1989, 103 Stat. 31.)

CHAPTER 13—SPECIAL AUTHORITY

        

Editorial Notes

Amendments

1998—Pub. L. 105–362, title XIII, §1302(b)(2)(A), Nov. 10, 1998, 112 Stat. 3293, struck out item 1308 "Annual reports".

1978—Pub. L. 95–251, §2(c)(1), Mar. 27, 1978, 92 Stat. 183, substituted "Administrative law judges" for "Hearing examiners" in item 1305.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 633(1) (function of Civil Service Commission).	Jan. 16, 1883, ch. 27, §2(1) (function of Civil Service Commission), 22 Stat. 403.

The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 633(2)7 (last 17 words), (3) (less last 10 words).	Jan. 16, 1883, ch. 27, §§2(2)7 (last 17 words), (3) (less last 10 words), 22 Stat. 404.
(b)	5 U.S.C. 851 (1st 76 words), 868 (less proviso).	June 27, 1944, ch. 287, §§2 (1st 76 words), 19, 58 Stat. 387, 391.
(c)	5 U.S.C. 851 (1st 76 words), 860.	June 27, 1944, ch. 287, §§2 (1st 76 words), 11, 58 Stat. 387, 390.
(d)	5 U.S.C. 118k(d) (1st sentence).	July 19, 1940, ch. 640 §4 "Sec. 12(d) (1st sentence)", 54 Stat. 769.

Subsection (a) is based on former section 633(3) (less last 10 words). The regulation-making power conferred by that section covers the power conferred by former section 633(2)7 (last 17 words) which is, therefore, omitted. The requirement of notice is preserved in section 3304. The words "through its members or the examiners" are omitted as unnecessary in view of section 1104. The authority of the President to prescribe rules, based on former section 633(1) is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.

In subsections (b)–(d), the word "rules" is omitted as included in "regulations".

The provisions of the Veterans' Preference Act of 1944 (former sections 851–869) to which the regulation-making authority of subsections (b) and (c) apply are carried into sections 2108, 3305(b), 3306(a)(2), 3308–3320, 3351, 3363, 3364, and 7701, subchapter I of chapter 35, and subchapter II of chapter 75 of this title. The first 76 words of former section 851 are added here to preserve the general statement of policy in the light of which the substantive provisions that formerly comprised the Veterans' Preference Act of 1944 are to be interpreted. See Elder v. Brannan, 241 U.S. 277, 286. In subsection (b), the words "in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia", and in subsection (c) the words "in the excepted service in Executive agencies, permanent or temporary, and in the government of the District of Columbia" are coextensive with and substituted for "in civilian positions in all establishments, agencies, bureaus, administrations, projects, and departments of the Government, permanent or temporary, and in either (a) the classified civil service; (b) the unclassified civil service; (c) any temporary or emergency establishment, agency, bureau, administration, project, and department created by Acts of Congress or Presidential Executive order", in view of the exclusion of positions in the legislative and judicial branches by former section 869.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Subsecs. (a) to (d). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission" and "Office" for "Commission" wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Executive Documents

Executive Order No. 10561

Ex. Ord. No. 10561, Sept. 13, 1954, 19 F.R. 5963, which related to official personnel folders, was revoked by section 2–201 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out as a note under section 1101 of this title.

Executive Order No. 11397

Ex. Ord. No. 11397, Feb. 9, 1968, 33 F.R. 2833, formerly set out as a note under this section, which related to transitional appointments of veterans who served during the Vietnam Era, was revoked by Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, set out as a note under section 3302 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, §906(a)(4), (11), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 633(4).	Jan. 16, 1883, ch. 27, §2(4), 22 Stat. 404.

The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.

In paragraph (2), the words "in respect to the execution of this act" are changed to "concerning the execution of the provisions of this title that relate to the administration of the competitive service" to avoid having to refer in the text to the sections of this title into which the Civil Service Act, the act referred to, is codified. These sections are: 1101, 1102, 1105, 1302(a), 1303, 1307, 1308(a)(1), 2102, 2951, 3302, 3303, 3304(a), (d), 3305(a), 3306, 3318(a), 3319(a), 3321, 7152, 7153, 7321, 7322, and 7352. The words "the provisions of this title that relate to the administration of the competitive service" will include some of the sections derived from the Veterans' Preference Act of 1944 (former sections 851–869). They are based in part on former section 860 (codified in §1302(c)). The authorization in that section to make and enforce regulations for the competitive service would include the authority to investigate and report. The words "and other employees" are substituted for "and its own subordinates, and those in the public service" in view of the definition of "employee" in section 2105.

Standard changes are made to conform with the definition applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted in opening par. "Office of Personnel Management, Merit Systems Protection Board, and Special Counsel" for "Civil Service Commission" and in par. (1) "Office of Personnel Management" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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, and for the cost of audits, investigations, and oversight activities, conducted by the Inspector General of the Office, of the fund and the activities financed by the fund. 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)(A) 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.

(B) Such budget shall include an estimate from the Inspector General of the Office of the amount required to pay the expenses to audit, investigate, and provide other oversight activities with respect to the fund and the activities financed by the fund.

(C) The amount requested by the Inspector General under subparagraph (B) shall not exceed .33 percent of the total budgetary authority requested by the Office under subparagraph (A).

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 91–189, §1, Dec. 30, 1969, 83 Stat. 851; Pub. L. 91–648, title V, §510, Jan. 5, 1971, 84 Stat. 1928; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–60, title II, §203(a)(2), Aug. 15, 1979, 93 Stat. 398; Pub. L. 97–412, §1(a), Jan. 3, 1983, 96 Stat. 2047; Pub. L. 98–224, §5(b)(1), Mar. 2, 1984, 98 Stat. 48; Pub. L. 103–437, §3(a), Nov. 2, 1994, 108 Stat. 4581; Pub. L. 104–66, title II, §2182, Dec. 21, 1995, 109 Stat. 732; Pub. L. 104–208, div. A, title I, §101(f) [title IV, §421], Sept. 30, 1996, 110 Stat. 3009–314, 3009-343; Pub. L. 113–80, §2, Feb. 12, 2014, 128 Stat. 1006.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(b)–(d)	5 U.S.C. 655.	Apr. 5, 1952, ch. 159, §1 (provisos), 66 Stat. 44. July 31, 1953, ch. 283, §9, 67 Stat. 241.
(e)	5 U.S.C. 657.	June 5, 1952, ch. 369, §701 (par. under "Civil Service Commission"), 66 Stat. 107.
(f)	[Uncodified].	Apr. 5, 1952, ch. 159, §4, 66 Stat. 44.
(g)	5 U.S.C. 656.	Apr. 5, 1952, ch. 159, §3, 66 Stat. 44.

Subsection (a) is based on section 1 of the Act of April 5, 1952, as amended, and is added for clarity. In subsection (a), the reference to section 10(b)(5)(B)(i) and (B)(ii) of the Act of August 1, 1946 (60 Stat. 766) is omitted because of the amendment of the Act of April 5, 1952, by the Act of July 31, 1953, ch. 283, 67 Stat. 240, and the reenactment of the provisions of the Act of April 5, 1952, insofar as they relate to the Atomic Energy Commission as section 145 of the Atomic Energy Act of 1954 (68 Stat. 942; 42 U.S.C. 2165). The references to section 1(2) of the Act of May 22, 1947 (61 Stat. 125), section 1 of the joint resolution of May 21, 1947 (61 Stat. 125), and section 110(c) of the Act of April 3, 1948 (62 Stat. 137) are omitted as these Acts were repealed by the Act of Aug. 26, 1954, ch. 937 §542(a) (1), (2), and (4), 68 Stat. 861. Reference to section 510 of the Mutual Security Act of 1951 (65 Stat. 381) is omitted because this section was replaced by section 531 of the Mutual Security Act of 1954 (68 Stat. 859) and the latter was repealed by the Act of Sept. 4, 1961, Pub. L. 87–195, §642(2), 75 Stat. 460.

In subsection (d), the references to section 10(b)(5)(B)(i) and (ii) of the Atomic Energy Act of 1946, section 510 of the Mutual Security Act of 1951, a majority of the members of the Atomic Energy Commission, and the Director of Mutual Security (which was changed to Director of the International Cooperation Administration on authority of section 8 of 1953 Reorg. Plan No. 7, 67 Stat. 641, and Executive Order 10610 of May 9, 1955) are omitted because of the disposition of the two sections as explained with reference to subsection (a).

In subsection (e), the words "There is established" are omitted as executed.

In subsection (g), the reference to statutes other than this section is omitted because nothing in those statutes affect the responsibility in question.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Section 1874(c) of title 42, referred to in subsec. (a)(2), which related to clearance of National Science Foundation personnel, was repealed by Pub. L. 96–516, §21(b)(1), Dec. 12, 1980, 94 Stat. 3010.

Amendments

2014—Subsec. (e)(1). Pub. L. 113–80, §2(1), inserted ", and for the cost of audits, investigations, and oversight activities, conducted by the Inspector General of the Office, of the fund and the activities financed by the fund" before period at end of first sentence.

Subsec. (e)(5). Pub. L. 113–80, §2(2), designated existing provisions as subpar. (A) and added subpars. (B) and (C).

1996—Subsec. (e)(1). Pub. L. 104–208 inserted ", 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" before period at end of first sentence.

1995—Subsec. (e)(6). Pub. L. 104–66 struck out before period at end "at least once every three years".

1994—Subsec. (e)(6). Pub. L. 103–437 substituted "Committee on Governmental Affairs of the Senate and the Committee on Post Office and Civil Service of the House" for "Committees on Post Office and Civil Service of the Senate and House".

1984—Subsec. (e)(1). Pub. L. 98–224 struck out cl. (i) designation and struck out cl. (ii) which provided that participation fees imposed by the President's Commission on Executive Exchange for private sector participation in its Executive Exchange Program be collected and credited to the fund, and be available for the costs of education and related travel of exchanged executives, for printing without regard to section 501 of title 44, and, in such amounts as specified in appropriations Acts, for entertainment expenses. See section 4109(d) of this title.

1983—Subsec. (e)(1). Pub. L. 97–412 designated existing provisions as cl. (i) and added cl. (ii).

1979—Subsec. (a)(1). Pub. L. 96–60 struck out reference to section 1434 of title 22.

1978—Subsecs. (a) to (f). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission" and "Office" for "Commission" wherever appearing.

1971—Subsec. (e). Pub. L. 91–648 struck out in par. (1) "of $4,000,000" after "revolving fund" and inserted in par. (2)(A) ", which appropriations are hereby authorized".

1969—Subsec. (e). Pub. L. 91–189, §1(a), increased the scope of reimbursable services for which the fund may be used, restricted reimbursement to services which were included in the budget estimates submitted to Congress for that fiscal year, inserted a list of components which comprise the fund, specifically listed those items that would be credited directly to the capital fund, required that a budget be prepared by the Commission, and directed the Comptroller General as a result of the activities financed to make recommendations to the committees on Post Office and Civil Service of the Senate and House of Representatives at least once every three years.

Subsec. (f). Pub. L. 91–189, §1(b), authorized an agency to use available appropriations to reimburse the Commission or the Federal Bureau of Investigation for the cost of training and functions performed.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Effective Date of 1983 Amendment

Pub. L. 97–412, §1(b), Jan. 3, 1983, 96 Stat. 2047, provided that: "The authority granted in subsection (a) [amending this section] shall terminate on December 31, 1983."

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–60 effective Oct. 1, 1979, see section 209 of Pub. L. 96–60, set out as a note under section 1471 of Title 22, Foreign Relations and Intercourse.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Abolition of House Committee on Post Office and Civil Service

Committee on Post Office and Civil Service of House of Representatives abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. References to Committee on Post Office and Civil Service treated as referring to Committee on Government Reform and Oversight, see section 1(b) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 90–83, §1(3), Sept. 11, 1967, 81 Stat. 196; Pub. L. 95–251, §2(a)(1), (b)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title VIII, §801(a)(3)(B)(iii), title IX, §906(a)(12), Oct. 13, 1978, 92 Stat. 1221, 1225; Pub. L. 102–378, §2(4), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 105–362, title XIII, §1302(a), Nov. 10, 1998, 112 Stat. 3293.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1010 (5th sentence).	June 11, 1946, ch. 324, §11 (5th sentence), 60 Stat. 244.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

This section amends 5 U.S.C. 1305 to correct a typographical error.

Editorial Notes

Amendments

1998—Pub. L. 105–362 struck out "require reports by agencies, issue reports, including an annual report to Congress," after "may investigate,".

1992—Pub. L. 102–378 substituted "sections 3105" for "section 3105".

1978—Pub. L. 95–454 substituted provisions respecting functions pursuant to specified sections of this title of the Office of Personnel Management and the Merit Systems Protection Board for provisions respecting the functions pursuant to specified sections of this title of the Civil Service Commission.

Pub. L. 95–251 substituted "Administrative law judges" for "Hearing examiners" in section catchline and "administrative law judges" for "hearing examiners" in text.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by section 801(a)(3)(B)(iii) of Pub. L. 95–454 substituting "5372" for "5362" effective on first day of first applicable pay period beginning on or after the 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.

Amendment by section 906(a)(12) of Pub. L. 95–454 respecting functions of the Office and the Board effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–83 effective as of Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

Termination of Advisory Committees

Advisory committees in existence on Jan. 5, 1973, excluding committees composed wholly of full-time officers or employees of the Federal Government, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 1013 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 95–454, title IX, §906(a)(13), Oct. 13, 1978, 92 Stat. 1226.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 634.	Aug. 23, 1912, ch. 350, §1 (last par. under "Civil Service Commission"), 37 Stat. 372.
	[Uncodified].	1949 Reorg. Plan No. 5, §2(c), eff. Aug. 19, 1949, 63 Stat. 1069.

The section is rewritten to reflect expansion of authority of the Commission to include its Chairman under section 2(c) of 1949 Reorg. Plan No. 5.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted provisions respecting powers of the Director of the Office of Personnel Management in administering oaths in matters before the Office for provisions respecting powers of the Chairman of the Civil Service Commission and each Commissioner in administering oaths in matters before the Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§1307. Minutes

The Civil Service Commission shall keep minutes of its proceedings.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 633(3) (last 10 words).	Jan. 16, 1883, ch. 27, §2(3) (last 10 words), 22 Stat. 404.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Executive Documents

Transfer of Functions

Functions vested by statute in United States Civil Service Commission transferred to Director of Office of Personnel Management (except as otherwise specified) by Reorg. Plan No. 2 of 1978, §102, 43 F.R. 36037, 92 Stat. 3783, set out under section 1101 of this title, effective Jan. 1, 1979, as provided by section 1–102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under section 1101 of this title.

[§1308. Repealed. Pub. L. 105–362, title XIII, §1302(b)(1), Nov. 10, 1998, 112 Stat. 3293]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 91–93, title I, §104, Oct. 20, 1969, 83 Stat. 138; Pub. L. 93–156, Nov. 21, 1973, 87 Stat. 623; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, §2(a)(3), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–470, title I, §121, Oct. 19, 1980, 94 Stat. 2241, required annual reports on operation of subchapter III of chapter 83 of this title and chapters 87 and 89 of this title.

CHAPTER 14—AGENCY CHIEF HUMAN CAPITAL OFFICERS

        

§1401. Establishment of agency Chief Human Capital Officers

The head of each agency referred to under paragraphs (1) and (2) of section 901(b) of title 31 shall appoint or designate a Chief Human Capital Officer, who shall—

(1) advise and assist the head of the agency and other agency officials in carrying out the agency's responsibilities for selecting, developing, training, and managing a high-quality, productive workforce in accordance with merit system principles;

(2) implement the rules and regulations of the President and the Office of Personnel Management and the laws governing the civil service within the agency; and

(3) carry out such functions as the primary duty of the Chief Human Capital Officer.

(Added Pub. L. 107–296, title XIII, §1302(a), Nov. 25, 2002, 116 Stat. 2287.)

Statutory Notes and Related Subsidiaries

Effective Date

Chapter effective 180 days after Nov. 25, 2002, see section 1305 of Pub. L. 107–296, set out as an Effective Date of 2002 Amendment note under section 1103 of this title.

Chief Human Capital Officers Council

Pub. L. 107–296, title XIII, §1303, Nov. 25, 2002, 116 Stat. 2288, as amended by Pub. L. 117–81, div. F, title LXVI, §6604, Dec. 27, 2021, 135 Stat. 2441, provided that:

"(a) Establishment.—There is established a Chief Human Capital Officers Council, consisting of—

"(1) the Director of the Office of Personnel Management, who shall act as chairperson of the Council;

"(2) the Deputy Director for Management of the Office of Management and Budget, who shall act as vice chairperson of the Council; and

"(3) the Chief Human Capital Officers of Executive departments and any other members who are designated by the Director of the Office of Personnel Management.

"(b) Functions.—The Chief Human Capital Officers Council shall meet periodically to advise and coordinate the activities of the agencies of its members on such matters as modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations.

"(c) Employee Labor Organizations at Meetings.—The Chief Human Capital Officers Council shall ensure that representatives of Federal employee labor organizations are present at a minimum of 1 meeting of the Council each year. Such representatives shall not be members of the Council.

"(d) Annual Reports.—

"(1) In general.—Each year, the Chief Human Capital Officers Council shall submit to Congress a report that includes the following:

"(A) A description of the activities of the Council.

"(B) A description of employment barriers that prevent the agencies of its members from hiring qualified applicants, including those for digital talent positions, and recommendations for addressing the barriers that would allow such agencies to more effectively hire qualified applicants.

"(2) Public availability.—Not later than 30 days after the date on which the Council submits a report under paragraph (1), the Director of the Office of Personnel Management shall make the report publicly available on the website of the Office of Personnel Management."

§1402. Authority and functions of agency Chief Human Capital Officers

(a) The functions of each Chief Human Capital Officer shall include—

(1) setting the workforce development strategy of the agency;

(2) assessing workforce characteristics and future needs based on the agency's mission and strategic plan;

(3) aligning the agency's human resources policies and programs with organization mission, strategic goals, and performance outcomes;

(4) developing and advocating a culture of continuous learning to attract and retain employees with superior abilities;

(5) identifying best practices and benchmarking studies,¹ and

(6) applying methods for measuring intellectual capital and identifying links of that capital to organizational performance and growth.

(b) In addition to the authority otherwise provided by this section, each agency Chief Human Capital Officer—

(1) shall have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material that—

(A) are the property of the agency or are available to the agency; and

(B) relate to programs and operations with respect to which that agency Chief Human Capital Officer has responsibilities under this chapter; and

(2) may request such information or assistance as may be necessary for carrying out the duties and responsibilities provided by this chapter from any Federal, State, or local governmental entity.

(Added Pub. L. 107–296, title XIII, §1302(a), Nov. 25, 2002, 116 Stat. 2288.)

¹ So in original. The comma probably should be a semicolon.

CHAPTER 15—POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES

        

Editorial Notes

Amendments

1974—Pub. L. 93–443, title IV, §401(b)(2), Oct. 15, 1974, 88 Stat. 1290, substituted "candidacies" for "political activity" in item 1503.

§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, or the executive branch of the District of Columbia, 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—

(i) a State or political subdivision thereof;

(ii) the District of Columbia; or

(iii) a recognized religious, philanthropic, or cultural organization.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 403; Pub. L. 93–443, title IV, §401(c), Oct. 15, 1974, 88 Stat. 1290; Pub. L. 112–230, §3(a), (b), Dec. 28, 2012, 126 Stat. 1616.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(1)	5 U.S.C. 118k–2.	July 19, 1940, ch. 640, §4 "Sec. 19", 54 Stat. 772.
(2), (3)	5 U.S.C. 118k(f).	July 19, 1940, ch. 640, §4 "Sec. 12(f)", 54 Stat. 770.
(4)	5 U.S.C. 118k(a) (1st 41 words), (e).	July 19, 1940, ch. 640, §4 "Sec 12(a) (1st 41 words), (e)", 54 Stat. 767, 770.
	5 U.S.C. 118k–1 (as applicable to 5 U.S.C. 118k).	Oct. 24, 1942, ch. 620 "Sec. 21 (as applicable to §12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, §4, 54 Stat. 767)", 56 Stat. 986.
(5)	5 U.S.C. 118l (as applicable to 5 U.S.C. 118k).	July 19, 1940, ch. 640, §4 "Sec. 15 (as applicable to §12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, §4, 54 Stat. 767)", 54 Stat. 771.

In paragraph (4)(B), the words "or by any Territory or Territorial possession of the United States" are omitted in view of the definition of "State" in paragraph (1).

In paragraph (5), the words "July 19, 1940" are substituted for "at the time this section takes effect".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2012—Par. (2). Pub. L. 112–230, §3(a), inserted ", or the executive branch of the District of Columbia, or an agency or department thereof" before semicolon at end.

Par. (4)(B). Pub. L. 112–230, §3(b), added subpar. (B) and struck out former subpar. (B) which read as follows: "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."

1974—Par. (5). Pub. L. 93–443 struck out par. (5) which defined "an active part in political management or in political campaigns".

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Pub. L. 112–230, §5(a), Dec. 28, 2012, 126 Stat. 1617, provided that: This Act [see Short Title of 2012 Amendment note set out under section 101 of this title] and the amendments made by this Act shall take effect 30 days after the date of enactment of this Act [Dec. 28, 2012]."

Effective Date of 1974 Amendment

Amendment by Pub. L. 93–443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 30101 of Title 52, Voting and Elections.

§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) if the salary of the employee is paid completely, directly or indirectly, by loans or grants made by the United States or a Federal agency, 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, municipality, or the District of Columbia who is not classified under a State, municipal, or the District of Columbia merit or civil-service system; or

(4) an individual holding elective office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 404; Pub. L. 93–443, title IV, §401(a), Oct. 15, 1974, 88 Stat. 1290; Pub. L. 112–230, §§2, 3(c), Dec. 28, 2012, 126 Stat. 1616.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118k(a) (less 1st 41 words).	July 19, 1940, ch. 640, §4 "Sec. 12(a) (less 1st 41 words)", 54 Stat. 767.

In subsection (a), the term "State or local officer or employee", defined in section 1501, is substituted for the first 41 words of former section 118k(a). The words "any part of his salary or compensation" are omitted as included in "anything of value".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2012—Subsec. (a)(3). Pub. L. 112–230, §2, amended par. (3) generally. Prior to amendment, par. (3) read as follows: "be a candidate for elective office."

Subsec. (c)(3). Pub. L. 112–230, §3(c), which directed the substitution of ", municipality, or the District of Columbia' " for " 'or municipality" and ", municipal, or the District of Columbia' " for " 'or municipal", was executed by substituting ", municipality, or the District of Columbia" for "or municipality" and ", municipal, or the District of Columbia" for "or municipal", to reflect the probable intent of Congress.

1974—Subsec. (a)(3). Pub. L. 93–443 substituted "be a candidate for elective office" for "take an active part in political management or in political campaigns".

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–230 effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as a note under section 1501 of this title.

Effective Date of 1974 Amendment

Amendment by Pub. L. 93–443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 30101 of Title 52, Voting and Elections.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 404; Pub. L. 93–443, title IV, §401(b)(1), Oct. 15, 1974, 88 Stat. 1290.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118n (as applicable to 5 U.S.C. 118k(a)).	July 19, 1940, ch. 640, §4 "Sec. 18 (as applicable to §12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, §4, 54 Stat. 767)", 54 Stat. 772.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1974—Pub. L. 93–443 substituted "candidacies" for "political activity" in section catchline and provision permitting nonpartisan candidacies for prior provision permitting political activity in connection with (1) an election and the preceding campaign if none of the candidates was to be nominated or elected at that 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, or (2) a question which was not specifically identified with a National or State political party and deeming questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character as not specifically identified with a National or State political party.

Statutory Notes and Related Subsidiaries

Effective Date of 1974 Amendment

Amendment by Pub. L. 93–443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 30101 of Title 52, Voting and Elections.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, §906(a)(7), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118k(b) (1st and 2d sentences, and 4th through 17th words of 3d sentence).	July 19, 1940, ch. 640 §4 "Sec. 12(b) (1st and 2d sentences, and 4th through 17th words of 3d sentence)", 54 Stat. 768. June 11, 1960, Pub. L. 86–507, §1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted provisions respecting the functions of the Special Counsel and the Merit Systems Protection Board for provisions respecting the functions of the Civil Service Commission.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, §906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118k(b) (3d sentence, less 4th, through 17th words, and 4th sentence).	July 19, 1940, ch. 640, §4 "Sec. 12(b) (3d sentence, less 4th through 17th words, and 4th sentence)", 54 Stat. 768. June 11, 1960, Pub. L. 86–507, §1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Merit Systems Protection Board" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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 (or in the case of the District of Columbia, in the District of Columbia) 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 or 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, §906(a)(6), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 112–230, §3(d), Dec. 28, 2012, 126 Stat. 1616.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118k(b) (less 1st 4 sentences).	July 19, 1940, ch. 640, §4 "Sec. 12(b) (less 1st 4 sentences)", 54 Stat. 768. June 11, 1960, Pub. L. 86–507, §1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2012—Subsec. (a)(2). Pub. L. 112–230 inserted "(or in the case of the District of Columbia, in the District of Columbia)" after "the same State".

1978—Subsec. (a). Pub. L. 95–454 substituted "Merit Systems Protection Board" for "Civil Service Commission" and "Board" for "Commission", respectively, wherever appearing.

Subsecs. (b), (c). Pub. L. 95–454 substituted "Board" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–230 effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as a note under section 1501 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 406; Pub. L. 95–454, title IX, §906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118k(d) (less 1st sentence).	July 19, 1940, ch. 640, §4 "Sec. 12(d) (less 1st sentence)", 54 Stat. 769.

In subsection (a), the word "affirmation" is omitted as included in "oath" on authority of section 1 of title 1, United States Code. The title of the court is changed to conform to title 28.

In subsection (c), the prohibition is restated in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Subsec. (a). Pub. L. 95–454 substituted "Merit Systems Protection Board" and "Board" for "Civil Service Commission" and "Commission", respectively, wherever appearing.

Subsecs. (b), (c). Pub. L. 95–454 substituted "Board" for "Commission" wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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; and 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 406; Pub. L. 95–454, title IX, §906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118k(c).	July 19, 1940, ch. 640, §4 "Sec. 12(c)", 54 Stat. 768.

Sections 346 and 347 of title 28 referred to in former section 118k(c) were repealed by the Act of June 25, 1948, ch. 646, §39, 62 Stat. 862, and are now covered by section 1254 of title 28. The titles of the courts are changed to conform to title 28.

In the reference to filing a written petition, "written" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Merit Systems Protection Board" and "Board" for "Civil Service Commission" and "Commission", respectively, wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

PART III—EMPLOYEES

Subpart A—General Provisions

        

Subpart B—Employment and Retention

        

        

Subpart C—Employee Performance

        

Subpart D—Pay and Allowances

        

Subpart E—Attendance and Leave

        

Subpart F—Labor-Management and Employee Relations

        

Subpart G—Insurance and Annuities

        

Subpart H—Access to Criminal History Record Information

        

Subpart I—Miscellaneous

        

Subpart J—Enhanced Personnel Security Programs

        

Editorial Notes

Amendments

2021—Pub. L. 117–81, div. E, title LIII, §5312(c), Dec. 27, 2021, 135 Stat. 2365, which directed amendment of the analysis at the beginning of title 5 by inserting item for chapter 103, was executed by making the amendment to this analysis to reflect the probable intent of Congress.

2019—Pub. L. 116–92, div. A, title XI, §1122(c), Dec. 20, 2019, 133 Stat. 1608, added item for chapter 92.

2015—Pub. L. 114–113, div. M, title III, §306(a)(2), Dec. 18, 2015, 129 Stat. 2916, added items for subpart J and chapter 110.

Pub. L. 114–47, §2(b), Aug. 7, 2015, 129 Stat. 487, added item for chapter 96.

2011—Pub. L. 112–81, div. A, title XI, §1101(d)(2), Dec. 31, 2011, 125 Stat. 1610, added item for chapter 99 and struck out former item for chapter 99 "Department of Defense National Security Personnel System".

2010—Pub. L. 111–292, §2(b)(1), Dec. 9, 2010, 124 Stat. 3170, added item for chapter 65.

Pub. L. 111–282, §4(c)(3), Oct. 15, 2010, 124 Stat. 3044, added item for chapter 102.

2006—Pub. L. 109–295, title VI, §621(b), Oct. 4, 2006, 120 Stat. 1416, added item for chapter 101.

2004—Pub. L. 108–496, §4, Dec. 23, 2004, 118 Stat. 4010, added items for chapters 89A and 89B.

Pub. L. 108–201, §3(b), Feb. 24, 2004, 118 Stat. 477, added item for chapter 98.

2003—Pub. L. 108–136, div. A, title XI, §§1101(a)(2), 1129(b), Nov. 24, 2003, 117 Stat. 1633, 1645, added items for chapters 54 and 99.

2002—Pub. L. 107–347, title II, §209(c)(3), Dec. 17, 2002, 116 Stat. 2930, added item for chapter 37.

Pub. L. 107–296, title VIII, §841(a)(3), Nov. 25, 2002, 116 Stat. 2233, added item for chapter 97.

Pub. L. 107–123, §8(d)(1)(A), Jan. 16, 2002, 115 Stat. 2399, added item for chapter 48.

2000—Pub. L. 106–398, §1 [[div. A], title X, §1076(f)(1)(B)], Oct. 30, 2000, 114 Stat. 1654, 1654A-282, substituted "and Other Purposes" for "Purposes" in item for chapter 91.

Pub. L. 106–265, title I, §1002(b), Sept. 19, 2000, 114 Stat. 769, added item for chapter 90.

1998—Pub. L. 105–206, title I, §1201(b), July 22, 1998, 112 Stat. 719, added items for subpart I and chapter 95.

1993—Pub. L. 103–89, §3(a)(2), Sept. 30, 1993, 107 Stat. 981, struck out item for chapter 54 "Performance Management and Recognition System".

1986—Pub. L. 99–335, title I, §101(b), June 6, 1986, 100 Stat. 588, added item for chapter 84.

1985—Pub. L. 99–169, title VIII, §801(b), Dec. 4, 1985, 99 Stat. 1010, added items for subpart H and chapter 91.

1984—Pub. L. 98–615, title II, §201(b), Nov. 8, 1984, 98 Stat. 3214, substituted "Performance Management and Recognition System" for "Merit Pay and Cash Awards" in item for chapter 54.

1978—Pub. L. 95–454, title I, §101(b)(1), title II, §203(b), title V, §503(i), title VI, §601(b), title VII, §703(b), title IX, §906(c)(5), Oct. 13, 1978, 92 Stat. 1118, 1134, 1184, 1188, 1217, 1227, added items for chapters 23, 34, 47, 54, and 72, substituted in item for chapter 43 "Appraisal" for "Rating" and in item for chapter 71 "Labor-Management Relations" for "Policies", and inserted in heading of subpart F "Labor-Management and" before "Employee".

¹ Chapter heading amended by Pub. L. 107–296 without corresponding amendment of part analysis.

² So in original. Probably should be capitalized.

³ So in original. The period probably should not appear.

Subpart A—General Provisions

CHAPTER 21—DEFINITIONS

        

Editorial Notes

Amendments

2011—Pub. L. 112–56, title II, §235(a)(2)(B), Nov. 21, 2011, 125 Stat. 723, added item 2108a.

1980—Pub. L. 96–347, §1(d), Sept. 12, 1980, 94 Stat. 1150, substituted "controller; Secretary" for "controller" in item 2109.

1978—Pub. L. 95–454, title IV, §401(e), Oct. 13, 1978, 92 Stat. 1154, added item 2101a.

1972—Pub. L. 92–297, §1(b), May 16, 1972, 86 Stat. 141, added item 2109.

§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, Space Force, 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 90–83, §1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 96–54, §2(a)(4), Aug. 14, 1979, 93 Stat. 381; Pub. L. 116–283, div. A, title IX, §927(a), Jan. 1, 2021, 134 Stat. 3831.)

Historical and Revision Notes

1966 Act

The section is supplied to establish basis of reference to employees in this title.

1967 Act

This section amends various sections [§§2101, 4102, 4109, 5541, 8101] of title 5, United States Code, to reflect 1965 Reorganization Plan No. 2 (79 Stat. 1318), effective July 13, 1965, which consolidated the Coast and Geodetic Survey and the Weather Bureau to form a new agency in the Department of Commerce to be known as the Environmental Science Services Administration.

Editorial Notes

Amendments

2021—Par. (2). Pub. L. 116–283 inserted "Space Force," after "Marine Corps".

1979—Par. (3). Pub. L. 96–54 substituted "National Oceanic and Atmospheric" for "Environmental Science Services".

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Short Title of 1998 Amendment

Pub. L. 105–339, §1, Oct. 31, 1998, 112 Stat. 3182, provided that: "This Act [enacting sections 3330a to 3330c of this title, section 1316a of Title 2, The Congress, section 115 of Title 3, The President, and section 1354 of Title 31, Money and Finance, amending sections 2108, 2302, and 3304 of this title and section 4212 of Title 38, Veterans' Benefits, repealing section 1599c of Title 10, Armed Forces, enacting provisions set out as notes under section 2302 of this title and section 601 of Title 28, Judiciary and Judicial Procedure, and amending provisions set out as a note under section 106 of Title 49, Transportation] may be cited as the 'Veterans Employment Opportunities Act of 1998'."

Short Title of 1994 Amendment

Pub. L. 103–226, §1, Mar. 30, 1994, 108 Stat. 111, provided that: "This Act [amending sections 3381, 4101, 4103, 4105, 4107, 4108, 4113, 4118, 5597, 8351, 8433 to 8435, 8437, 8440a to 8440d of this title and section 1206 of Title 45, Railroads, repealing sections 4106 and 4114 of this title, enacting provisions set out as notes under sections 3101, 3381, 5597, 8331, and 8351 of this title, and amending provisions set out as a note under section 403–4 of Title 50, War and National Defense] may be cited as the 'Federal Workforce Restructuring Act of 1994'."

Short Title of 1990 Amendment

Pub. L. 101–508, title VII, §7202(a), Nov. 5, 1990, 104 Stat. 1388–335, provided that: "This section [amending sections 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under section 2105 of this title] may be cited as the 'Portability of Benefits for Nonappropriated Fund Employees Act of 1990'."

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Coordination of Title VII of Pub. L. 101–508 With Section 909 of Title 2

Pub. L. 101–508, title VII, §7301, Nov. 5, 1990, 104 Stat. 1388–341, provided that: "For purposes of section 202 of the Balanced Budget and Emergency Deficit Reaffirmation Act of 1987 [probably means section 202 of the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. 100–119, which was formerly classified to section 909 of Title 2, The Congress], this title and the amendments made by this title [amending sections 552a, 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8334, 8339, 8342, 8343a, 8347, 8348, 8401, 8420a, 8461, 8901, 8902, 8904, 8906, 8909, and 8910 of this title, enacting provisions set out as notes under this section and sections 552a, 2105, 8334, 8343a, 8348, 8902, 8904, and 8906 of this title, amending provisions set out as notes under sections 8343a and 8906 of this title, and repealing provisions set out as notes under sections 8343a and 8348 of this title] shall be considered an exception under subsection (b) of such section."

§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).

(Added Pub. L. 95–454, title IV, §401(a), Oct. 13, 1978, 92 Stat. 1154.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title.

§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".

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 95–454, title IV, §401(b), Oct. 13, 1978, 92 Stat. 1154.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 638 (less applicability to appointment and promotion).	Jan. 16, 1883, ch. 27, §7 (less applicability to appointment and promotion), 22 Stat. 406.

Subsection (a) is restated in the form of a definition.

Subsection (a)(1) is based on former section 638, which placed positions in the executive branch of the Government generally in the competitive service by the requirement that employment be predicated on passing an examination or being exempted from examination, and section 1 of the Act of Nov. 26, 1940, ch. 919, title I, 54 Stat. 1211 (see table III), which authorized the President, subject to certain exceptions, to place in the classified civil service positions in the Executive departments, independent establishments, and other agencies of the Government. In that Act the word "executive" has been construed to modify "departments", "independent establishments"; and "other agency". This construction is supported by the language of the Act of Jan. 16, 1883, and is embodied in Civil Service Rule I. Acting under this statute, the President has placed all but a comparatively few of the positions covered by the Act of Nov. 26, 1940, in the competitive service. The remainder are covered by the exceptions contained in the Civil Service Rules and Regulations. The authority of the President conferred by the Act of Nov. 26, 1940, has been superseded in part by exceptions created by statutes enacted after that date. The effect of these exceptions and the power conferred on the President by former section 633(2)8 (last sentence) to make exceptions to the Civil Service Rules are preserved by the words "positions which are specifically excepted from the competitive service by or under statute".

In subsection (a)(1)(B), the words "or to pass an examination" are omitted as covered by the exclusion from the "competitive service".

Subsection (a)(2) preserves the exception stated in former section 638 modified to recognize the several statutory exceptions to this exception that have been enacted. The language of former section 638 relative to examination is codified in sections 3304(b) and 3361. The reference to veterans' preference is omitted because the statute referred to, R.S. §1754, was superseded by sections 3 and 21 of the Act of June 18, 1929, ch. 28, 46 Stat. 21. Section 3 of the Act of June 18, 1929, was superseded by the Act of June 27, 1944, ch. 287, 58 Stat. 387, as amended, which is carried into this title. Rights preserved by section 18 of the Act of June 27, 1944, are further preserved by technical section 8. The exception for laborers and workmen was superseded by the Act of Nov. 26, 1940.

Subsection (b) is added because of the provisions in section 3311 of title 39.

Subsection (c) is supplied for conformity inasmuch as the terms are coextensive by definition.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Subsec. (a)(1)(C). Pub. L. 95–454 added cl. (C).

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§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".

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 95–454, title IV, §401(c), Oct. 13, 1978, 92 Stat. 1154.)

Historical and Revision Notes

The section is supplied for convenience. The "excepted service" has come to mean all employees not in the competitive service, for whatever reason.

Editorial Notes

Amendments

1978—Subsec. (a). Pub. L. 95–454 inserted reference to Senior Executive Service.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§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 Regulatory Commission is deemed not an officer for purposes of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 91–375, §6(c)(3), Aug. 12, 1970, 84 Stat. 775; Pub. L. 109–435, title VI, §604(b), Dec. 20, 2006, 120 Stat. 3241.)

Historical and Revision Notes

The section is supplied for convenience.

Editorial Notes

Amendments

2006—Subsec. (b). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission".

1970—Subsec. (a). Pub. L. 91–375, §6(c)(3)(A), (B), designated existing provisions as subsec. (a) and inserted in introductory text "as otherwise provided by this section or" after "except".

Subsec. (b). Pub. L. 91–375, §6(c)(3)(C), added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

§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, Navy Ships Stores Program, 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 Regulatory 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90–486, §4, Aug. 13, 1968, 82 Stat. 757; Pub. L. 91–375, §6(c)(4), Aug. 12, 1970, 84 Stat. 775; Pub. L. 92–392, §2, Aug. 19, 1972, 86 Stat. 573; Pub. L. 95–454, title VII, §703(c)(2), title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1217, 1224; Pub. L. 96–54, §2(a)(5), (6), Aug. 14, 1979, 93 Stat. 381; Pub. L. 99–335, title II, §207(a), June 6, 1986, 100 Stat. 594; Pub. L. 99–638, §2(b)(1), Nov. 10, 1986, 100 Stat. 3536; Pub. L. 101–508, title VII, §7202(b), Nov. 5, 1990, 104 Stat. 1388–335; Pub. L. 103–3, title II, §201(b), Feb. 5, 1993, 107 Stat. 23; Pub. L. 103–424, §7, Oct. 29, 1994, 108 Stat. 4364; Pub. L. 104–201, div. A, title III, §370(b), Sept. 23, 1996, 110 Stat. 2499; Pub. L. 105–85, div. B, title XXVIII, §2871(c)(2), Nov. 18, 1997, 111 Stat. 2015; Pub. L. 109–435, title VI, §604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 113–66, div. A, title VI, §642, Dec. 26, 2013, 127 Stat. 787.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(b)	[Uncodified].	Aug. 5, 1939, ch. 448, §2, 53 Stat. 1210.
	[Uncodified].	Dec. 3, 1945, ch. 510, §2, 59 Stat. 590.
	[Uncodified].	Dec. 28, 1945, ch. 593, §2, 59 Stat. 660.
	[Uncodified].	Dec. 28, 1945, ch. 594, §2, 59 Stat. 660.
	[Uncodified].	July 26, 1946, ch. 675, §2 (last proviso), 60 Stat. 704.
(c)	5 U.S.C. 150k.	June 19, 1952, ch. 444, §1, 66 Stat. 138.
(d)	5 U.S.C. 30r(d).	Aug. 10, 1956, ch. 1041, §29(d), 70A Stat. 632.

Subsection (a) is supplied to avoid the necessity of defining "employee" each time it appears in this title. The subsection is based on a definition worked out independently by the Civil Service Commission and the Department of Labor and in use by both for more than a decade.

In subsection (b), the provisions of the source statutes which relate to credit for prior service and diminution of pay are executed, or, insofar as to be executed preserved by technical section 8.

In subsection (d), the words "officer or" are omitted as included within "employee".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

The Fair Labor Standards Act of 1938, referred to in subsec. (c)(1)(C), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

Amendments

2013—Subsec. (c). Pub. L. 113–66 substituted "Navy Ships Stores Program" for "Army and Air Force Motion Picture Service, Navy Ship's Stores Ashore" in introductory provisions.

2006—Subsec. (e). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission".

1997—Subsec. (b). Pub. L. 105–85 inserted "(if any)" after "Academy dairy".

1996—Subsec. (b). Pub. L. 104–201 inserted "who is" after "An individual" and "and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date" after "Academy dairy,".

1994—Subsec. (f). Pub. L. 103–424 added subsec. (f).

1993—Subsec. (c)(1)(E). Pub. L. 103–3 added subpar. (E).

1990—Subsec. (c)(1). Pub. L. 101–508, §7202(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "laws (other than subchapter IV of chapter 53 of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title, and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or".

Subsec. (c)(2). Pub. L. 101–508, §7202(b)(2), inserted "(except to the extent specifically provided therein)" after "chapter 84".

1986—Subsec. (c)(1). Pub. L. 99–638 inserted "of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title,".

Subsec. (c)(2). Pub. L. 99–335 substituted "chapter 81, chapter 84," for "chapter 81".

1979—Subsec. (a)(1)(F). Pub. L. 96–54, §2(a)(5), substituted "an adjutant" for "the adjutants" and struck out ", United States Code" after "32".

Subsec. (c)(1). Pub. L. 96–54, §2(a)(6), amended subsec. (c)(1) in same manner as amendment by section 703(c)(2) of Pub. L. 95–454. See 1978 Amendment note set out below.

1978—Subsec. (c)(1). Pub. L. 95–454 substituted "7204" for "7154", and "Office of Personnel Management" for "Civil Service Commission". Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of this section, and subsec. (c)(2) purported to amend section 3302(2) of this title. However, the amendments specified by Pub. L. 95–454, §703(c)(1) and (2), were impossible to execute literally. Thus, the amendment by Pub. L. 95–454, §703(c)(2) was executed to this section, and the amendment by section 703(c)(1) was executed to section 3302(2) of this title as the probable intent of Congress.

1972—Subsec. (c)(1). Pub. L. 92–392 substituted "laws (other than subchapter IV of chapter 53 and sections 5550 and 7154 of this title)" for "laws".

1970—Subsec. (e). Pub. L. 91–375 added subsec. (e).

1968—Subsec. (a)(1)(F). Pub. L. 90–486 added subpar. (F).

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–201, div. A, title III, §370(e), Sept. 23, 1996, 110 Stat. 2499, provided that: "The amendments made by this section [amending this section and section 6971 of Title 10, Armed Forces, and repealing section 6970 of Title 10] shall take effect on October 1, 1996."

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–3 effective 6 months after Feb. 5, 1993, see section 405(b)(1) of Pub. L. 103–3, set out as an Effective Date note under section 2601 of Title 29, Labor.

Effective Date of 1990 Amendment

Pub. L. 101–508, title VII, §7202(m), Nov. 5, 1990, 104 Stat. 1388–339, provided that:

"(1) The amendments made by this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title] shall apply with respect to any individual who, on or after January 1, 1987—

"(A) moves without a break in service of more than 3 days from employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard that is described in section 2105(c) of title 5, United States Code, to employment in the Department of Defense or the Coast Guard, respectively, that is not described in such section 2105(c); or

"(B) moves without a break in service from employment in the Department of Defense or the Coast Guard that is not described in such section 2105(c) to employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, respectively, that is described in such section 2105(c).

"(2) The Secretary of Defense, the Secretary of Transportation, the Director of the Office of Personnel Management, and the Executive Director of the Federal Retirement Thrift Investment Board, as applicable, shall take such actions as may be practicable to ensure that each individual who has moved as described under paragraph (1) on or after January 1, 1987, and before the date of enactment of this Act [Nov. 5, 1990], receives the benefit of the amendments made by this section as if such amendments had been in effect at the time such individual so moved. Each such individual who wishes to make an election of retirement coverage under the amendments made by subsection (j) or (k) of this section [amending sections 8331, 8347, 8401, and 8461 of this title] shall complete such election within 180 days after the date of enactment of this Act."

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effective Date note under section 8401 of this title.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1972 Amendment

Amendment by Pub. L. 92–392 effective on first day of first applicable pay period beginning on or after 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92–392, set out as an Effective Date note under section 5341 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–486 effective Jan. 1, 1968, except that no deductions or withholding from salary which result therefrom shall commence before the first day of the first pay period that begins on or after Jan. 1, 1968, see section 11 of Pub. L. 90–486, set out as a note under section 709 of Title 32, National Guard.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Treatment of Individuals Electing To Remain Subject to Their Former Retirement System

Pub. L. 101–508, title VII, §7202(n), Nov. 5, 1990, 104 Stat. 1388–340, as amended by Pub. L. 102–378, §5(a)(2), Oct. 2, 1992, 106 Stat. 1358, provided that:

"(1) For the purpose of this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under this section and section 2101 of this title], the term 'nonappropriated fund instrumentality' means a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in section 2105(c) of title 5, United States Code.

"(2)(A) If an individual makes an election under section 8347(q)(1) of title 5, United States Code, to remain covered by subchapter III of chapter 83 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and contribute to the Thrift Savings Fund such sums as are required for such individual in accordance with section 8351 of such title.

"(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act [Nov. 5, 1990], becomes eligible to make an election under section 8347(q)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2) [set out as a note above], make any election described in section 8432(b)(1)(A) of such title.

"(3)(A) If an individual makes an election under section 8461(n)(1) of title 5, United States Code, to remain covered by chapter 84 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and shall contribute to the Thrift Savings Fund the funds deducted, together with such other sums as are required for such individual under subchapter III of such chapter.

"(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act, becomes eligible to make an election under section 8461(n)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2), make any election described in section 8432(b)(1)(A) of such title.

"(4) If an individual makes an election under section 8347(q)(2) or 8461(n)(2) of title 5, United States Code, to remain covered by a retirement system established for employees described in section 2105(c) of such title, any Government agency thereafter employing such individual shall, in lieu of any deductions or contributions for which it would otherwise be responsible with respect to such individual under chapter 83 or 84 of such title, make such deductions from pay and such contributions as would be required (under the retirement system for nonappropriated fund employees involved) if it were a nonappropriated fund instrumentality. Any such deductions and contributions shall be remitted to the Department of Defense or the Coast Guard, as applicable, for transmission to the appropriate retirement system."

[Amendment by Pub. L. 102–378 to section 7202(n) of Pub. L. 101–508, set out above, effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 102–378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.]

Prohibition of Decrease in Basic Pay Rate of Employees of Nonappropriated Fund Instrumentalities

Amendments by Pub. L. 92–392 not to decrease basic pay rate of subsec. (c) employees in service before effective date of the amendments as to such employees, see section 9(a)(2) of Pub. L. 92–392, set out as a note under section 5343 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 91–405, title II, §204(b), Sept. 22, 1970, 84 Stat. 852; Pub. L. 96–54, §2(a)(7), Aug. 14, 1979, 93 Stat. 381.)

Historical and Revision Notes

The section is supplied to avoid the necessity of defining "Member of Congress" each time the term is used in this title.

Editorial Notes

Amendments

1979—Pub. L. 96–54 substituted "to the House of Representatives" for "from the District of Columbia".

1970—Pub. L. 91–405 included Delegate from District of Columbia.

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–405 effective Sept. 22, 1970, see section 206(b) of Pub. L. 91–405, set out as an Effective Date note under section 25a of Title 2, The Congress.

§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 or employee 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, §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 Office of Congressional Accessibility Services.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90–83, §1(5), Sept. 11, 1967, 81 Stat. 196; Pub. L. 91–510, title IV, §442(a), Oct. 26, 1970, 84 Stat. 1191; Pub. L. 104–186, title II, §215(1), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 110–437, title IV, §422(c), Oct. 20, 2008, 122 Stat. 4997; Pub. L. 111–145, §7(a), Mar. 4, 2010, 124 Stat. 55.)

Historical and Revision Notes

1966 Act

The section is supplied to avoid the necessity of defining "Congressional employee" each time the term is used in this title.

1967 Act

Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
2107(6)	2:126–1.	July 27, 1965, Pub. L. 89–90, §101 (proviso on p. 265), 79 Stat. 265.
2107(8)	5 App.: 2251(c).	Sept. 26, 1966, Pub. L. 89–604, §1(a), 80 Stat. 846.

Paragraph (6), relating to Official Reporters of Debates of the Senate and their employees, is eliminated as unnecessary on authority of the act of July 27, 1965 (2 U.S.C. 126–1). Pursuant to that act, the Official Reporters and their employees became employees of the Senate; accordingly, they are now included within the definition of "Congressional employee" under paragraph (1).

In paragraph (8), based on the act of September 26, 1966 (5 App. U.S.C. 2251(c)), the word "officers" is omitted as included in "employees," and the words "United States" preceding the words "Botanic Garden" are omitted as unnecessary.

Editorial Notes

Amendments

2010—Par. (4). Pub. L. 111–145, inserted "or employee" after "member".

2008—Par. (9). Pub. L. 110–437 amended par. (9) generally. Prior to amendment, par. (9) read as follows: "an employee of the Capitol Guide Service."

1996—Par. (5). Pub. L. 104–186 substituted "Chief Administrative Officer" for "Clerk".

1970—Par. (9). Pub. L. 91—510 added par. (9).

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Pub. L. 111–145, §7(d), Mar. 4, 2010, 124 Stat. 56, provided that: "The amendments made by this section [amending this section and sections 5515, 5531, 5533, and 5537 of this title] shall take effect as though enacted as part of section 1018 of the Legislative Branch Appropriations Act, 2003 (2 U.S.C. 1907)."

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–437 effective first day of first pay period (applicable to employees transferred under section 2241 of Title 2, The Congress) on or after 30 days after Oct. 20, 2008, see section 422(d) of Pub. L. 110–437, set out as a note under section 1301 of Title 2.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–510 effective immediately prior to noon on June. 3, 1971, see section 601(1) of Pub. L. 91–510, set out as a note under section 4301 of Title 2, The Congress.

§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 October 15, 1976, not including service under section 12103(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, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve;

(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; or

(D) 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 during the period beginning on September 11, 2001, and ending on the date prescribed by Presidential proclamation or by law as the last date of Operation Iraqi Freedom;

and, except as provided under section 2108a, who has been discharged or released from active duty in the armed forces under honorable conditions;

(2) "disabled veteran" means an individual who has served on active duty in the armed forces, (except as provided under section 2108a) 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 or section 2108a(c)—

(A) a veteran as defined by paragraph (1)(A) of this section;

(B) a veteran as defined by paragraph (1)(B), (C), or (D) 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 parent of an individual who lost his or her life under honorable conditions while serving in the armed forces during a period named by paragraph (1)(A) of this section, if—

(i) the spouse of that parent is totally and permanently disabled; or

(ii) that parent, when preference is claimed, is unmarried or, if married, legally separated from his or her spouse;

(G) the parent of a service-connected permanently and totally disabled veteran, if—

(i) the spouse of that parent is totally and permanently disabled; or

(ii) that parent, when preference is claimed, is unmarried or, if married, legally separated from his or her spouse; and

(H) a veteran who was discharged or released from a period of active duty by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10);

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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 410; Pub. L. 90–83, §1(6), Sept. 11, 1967, 81 Stat. 196; Pub. L. 90–623, §1(2), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 92–187, §1, Dec. 15, 1971, 85 Stat. 644; Pub. L. 94–502, title VII, §702, Oct. 15, 1976, 90 Stat. 2405; Pub. L. 95–454, title III, §307(a), title IV, §401(d), Oct. 13, 1978, 92 Stat. 1147, 1154; Pub. L. 96–54, §2(a)(8), (9)(A), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–191, §8(a), Feb. 15, 1980, 94 Stat. 33; Pub. L. 97–89, title VIII, §801, Dec. 4, 1981, 95 Stat. 1161; Pub. L. 100–325, §2(a), May 30, 1988, 102 Stat. 581; Pub. L. 102–54, §13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 105–85, div. A, title XI, §1102(a), (c), Nov. 18, 1997, 111 Stat. 1922; Pub. L. 105–339, §4(a), Oct. 31, 1998, 112 Stat. 3185; Pub. L. 109–163, div. A, title V, §515(f)(1), title XI, §§1111, 1112(a), Jan. 6, 2006, 119 Stat. 3236, 3451; Pub. L. 110–317, §8, Aug. 29, 2008, 122 Stat. 3529; Pub. L. 112–56, title II, §235(a)(2)(A), Nov. 21, 2011, 125 Stat. 723; Pub. L. 114–62, §2, Oct. 7, 2015, 129 Stat. 547.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 851 (less 1st 76 words).	June 27, 1944, ch. 287, §2 (less 1st 76 words), 58 Stat. 387.
		Jan. 19, 1948, ch. 1, §1, 62 Stat. 3.
		July 2, 1948, ch. 816, 62 Stat. 1233.
		Aug. 26, 1949, ch. 513, 63 Stat. 666.
		Dec. 27, 1950, ch. 1151, §1, 64 Stat. 1117.
		July 14, 1952, ch. 728, §1, 66 Stat. 626.

In paragraph (2), the words "a military department" are substituted for "the War Department or Navy Department" (appearing in section 2 of the Act of June 27, 1944) because of the definition of "military department" in section 102. The Department of War was designated the Department of the Army by the Act of July 26, 1947, ch. 343, §205, 61 Stat. 501. "Department of the Air Force" is included on authority of the Act of July 26, 1947, ch. 343, §207 (a), (f), 61 Stat. 502.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
2108	5 App.: 851.	Mar. 3, 1966, Pub. L. 89–358, §11, 80 Stat. 28.

Editorial Notes

Amendments

2015—Par. (3)(F), (G). Pub. L. 114–62 added subpars. (F) and (G) and struck out former subpars. (F) and (G) which included in the definition of "preference eligible" certain mothers of individuals who lost their lives under honorable conditions in the armed forces and certain mothers of service-connected permanently and totally disabled veterans.

2011—Par. (1). Pub. L. 112–56, §235(a)(2)(A)(i), in concluding provisions, inserted ", except as provided under section 2108a," before "who has been".

Par. (2). Pub. L. 112–56, §235(a)(2)(A)(ii), inserted "(except as provided under section 2108a)" before "has been separated".

Par. (3). Pub. L. 112–56, §235(a)(2)(A)(iii), in introductory provisions, inserted "or section 2108a(c)" after "paragraph (4) of this section".

2008—Par. (3)(H). Pub. L. 110–317 added subpar. (H).

2006—Par. (1). Pub. L. 109–163, §1112(a), in concluding provisions, substituted "discharged or released from active duty in" for "separated from".

Par. (1)(B). Pub. L. 109–163, §515(f)(1), substituted "Navy Reserve" for "Naval Reserve".

Par. (1)(D). Pub. L. 109–163, §1111(a), added subpar. (D).

Par. (3)(B). Pub. L. 109–163, §1111(b), substituted "paragraph (1)(B), (C), or (D)" for "paragraph (1)(B) or (C)".

1998—Par. (3). Pub. L. 105–339, in concluding provisions, substituted "or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;" for "the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, or the General Accounting Office;".

1997—Par. (1)(B). Pub. L. 105–85, §1102(c), substituted "October 15, 1976," for "the date of enactment of the Veterans' Education and Employment Assistance Act of 1976," and "12103(d) of title 10" for "511(d) of title 10".

Par. (1)(C). Pub. L. 105–85, §1102(a)(1), added subpar. (C).

Par. (3)(B). Pub. L. 105–85, §1102(a)(2), inserted "or (C)" after "paragraph (1)(B)".

1991—Par. (2). Pub. L. 102–54 substituted "Department of Veterans Affairs" for "Veterans' Administration".

1988—Par. (3). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service in concluding provisions.

1981—Par. (3). Pub. L. 97–89 inserted reference to Defense Intelligence Senior Executive Service and Senior Cryptologic Executive Service in concluding provisions.

1980—Par. (3). Pub. L. 96–191 inserted reference to General Accounting Office in concluding provisions.

1979—Par. (3). Pub. L. 96–54, §2(a)(8), inserted provision excepting applicants for, or members of, Senior Executive Service.

Par. (5). Pub. L. 96–54, §2(a)(9)(A), struck out provision excepting applicants for, or members of, Senior Executive Service.

1978—Par. (2). Pub. L. 95–454, §307(a)(1), struck out "and" at end.

Par. (3). Pub. L. 95–454, §307(a)(2), (3), inserted ", except as provided in paragraph (4) of this section" after "means", and substituted a semicolon for the period at end.

Pars. (4), (5). Pub. L. 95–454, §307(a)(4), added pars. (4) and (5) relating to retired members of the armed forces.

Par. (5). Pub. L. 95–454, §401(d), inserted "; but does not include applicants for, or members of, the Senior Executive Service" before the period at end.

1976—Par. (1)(B). Pub. L. 94–502 substituted "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," for "after January 31, 1955,".

1971—Par. (3)(D). Pub. L. 92–187 inserted "or widower" after "unmarried widow".

Par. (3)(E). Pub. L. 92–187 inserted "or husband" after "the wife".

1968—Par. (3)(D). Pub. L. 90–623 inserted "as defined by paragraph (1)(A) of this section" after "veteran".

Statutory Notes and Related Subsidiaries

Effective Date of 2015 Amendment

Pub. L. 114–62, §3, Oct. 7, 2015, 129 Stat. 548, provided that: "The amendment made by this Act [amending this section] shall take effect 90 days after the date of enactment of this Act [Oct. 7, 2015]."

Effective Date of 2008 Amendment

Pub. L. 110–317, §10, Aug. 29, 2008, 122 Stat. 3530, provided that:

"(a) Retroactive Effective Date.—Except as provided in subsection (b) and section 9 [amending section 685 of Title 26, Internal Revenue Code, and enacting provisions set out as a note under section 685 of Title 26], this Act [amending this section, section 8521 of this title, sections 1145, 1146, and 1174 of Title 10, Armed Forces, section 685 of Title 26, section 303a of Title 37, Pay and Allowances of the Uniformed Services, and sections 3011, 3012, 3702, and 4211 of Title 38, Veterans' Benefits, and enacting provisions set out as notes under section 101 of Title 10 and section 685 of Title 26] and the amendments made by this Act shall apply with respect to any sole survivorship discharge granted after September 11, 2001.

"(b) Date of Enactment Effective Date for Certain Amendments.—The amendments made by sections 4, 7, and 8 [amending this section and section 8521 of this title and section 1145 of Title 10] shall apply with respect to any sole survivorship discharge granted after the date of the enactment of this Act [Aug. 29, 2008].

"(c) Sole Survivorship Discharge Defined.—In this section, the term 'sole survivorship discharge' means the separation of a member from the Armed Forces, at the request of the member, pursuant to the Department of Defense policy permitting the early separation of a member who is the only surviving child in a family in which—

"(1) the father or mother or one or more siblings—

"(A) served in the Armed Forces; and

"(B) was killed, died as a result of wounds, accident, or disease, is in a captured or missing in action status, or is permanently 100 percent disabled or hospitalized on a continuing basis (and is not employed gainfully because of the disability or hospitalization); and

"(2) the death, status, or disability did not result from the intentional misconduct or willful neglect of the parent or sibling and was not incurred during a period of unauthorized absence."

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–89 effective Oct. 1, 1981, see section 806 of Pub. L. 97–89, set out as an Effective Date note under section 1621 of Title 10, Armed Forces.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–191 effective Oct. 1, 1980, see section 10(a) of Pub. L. 96–191.

Effective Date of 1979 Amendment

Amendment by section 2(a)(8) of Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Pub. L. 96–54, §2(a)(9)(B), Aug. 14, 1979, 93 Stat. 381, provided that: "The amendment made by subparagraph (A) [amending this section] shall take effect October 1, 1980".

Effective Date of 1978 Amendment

Pub. L. 95–454, title III, §307(a), Oct. 13, 1978, 92 Stat. 1147, provided that the amendment made by that section is effective Oct. 1, 1980.

Amendment by section 401(d) of Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 effective Sept. 11, 1967, for all purposes, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

Savings Provision

Pub. L. 109–163, div. A, title XI, §1112(b), Jan. 6, 2006, 119 Stat. 3451, provided that: "Nothing in the amendment made by subsection (a) [amending this section] may be construed to affect a determination made before the date of enactment of this Act [Jan. 6, 2006] that an individual is a preference eligible (as defined in section 2108(3) of title 5, United States Code)."

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§2108a. Treatment of certain individuals as veterans, disabled veterans, and preference eligibles

(a) Veteran.—

(1) In general.—Except as provided under paragraph (3),¹ an individual shall be treated as a veteran defined under section 2108(1) for purposes of making an appointment in the competitive service, if the individual—

(A) meets the definition of a veteran under section 2108(1), except for the requirement that the individual has been discharged or released from active duty in the armed forces under honorable conditions; and

(B) submits a certification described under paragraph (2) to the Federal officer making the appointment.

(2) Certification.—A certification referred to under paragraph (1) is a certification that the individual is expected to be discharged or released from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification.

(b) Disabled Veteran.—

(1) In general.—Except as provided under paragraph (3),¹ an individual shall be treated as a disabled veteran defined under section 2108(2) for purposes of making an appointment in the competitive service, if the individual—

(A) meets the definition of a disabled veteran under section 2108(2), except for the requirement that the individual has been separated from active duty in the armed forces under honorable conditions; and

(B) submits a certification described under paragraph (2) to the Federal officer making the appointment.

(2) Certification.—A certification referred to under paragraph (1) is a certification that the individual is expected to be separated from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification.

(c) Preference Eligible.—Subsections (a) and (b) shall apply with respect to determining whether an individual is a preference eligible under section 2108(3) for purposes of making an appointment in the competitive service.

(Added Pub. L. 112–56, title II, §235(a)(1), Nov. 21, 2011, 125 Stat. 722.)

¹ So in original. Subsec. does not contain a par. (3).

§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.

(Added Pub. L. 92–297, §1(a), May 16, 1972, 86 Stat. 141; amended Pub. L. 96–347, §1(a), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 99–335, title II, §207(b), June 6, 1986, 100 Stat. 594.)

Editorial Notes

Amendments

1986—Par. (1). Pub. L. 99–335 amended par. (1) generally including within term "air traffic controller" or "controller" references to a flight service station facility and to employment providing preflight, inflight, or airport advisory service to aircraft operators and striking out provision that regulations prescribed by the Secretary be used in determining who is an air traffic controller.

1980—Pub. L. 96–347 substituted "controller; Secretary" for "controller" in section catchline, and in text included employees of the Department of Defense within the meaning of air traffic controller or controller and defined "Secretary" to mean Secretary of Transportation with respect to controllers in the Department of Transportation and Secretary of Defense with respect to controllers in the Department of Defense.

Statutory Notes and Related Subsidiaries

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effective Date note under section 8401 of this title.

Effective Date of 1980 Amendment

Pub. L. 96–347, §3, Sept. 12, 1980, 94 Stat. 1151, provided that: "This Act [amending this section and sections 3307, 3381 to 3385, and 8335 of this title and enacting provisions set out as a note under section 8335 of this title] shall take effect on the later of—

"(1) October 1, 1980, or

"(2) the ninetieth day after the date of the enactment of this Act [Sept. 12, 1980]."

Effective Date

Section effective on 90th day after May 16, 1972, see, section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

CHAPTER 23—MERIT SYSTEM PRINCIPLES

        

Editorial Notes

Amendments

2017—Pub. L. 115–91, div. A, title X, §1097(b)(1)(A), Dec. 12, 2017, 131 Stat. 1616, struck out item 2307 "Information on whistleblower protections".

Pub. L. 115–73, title I, §107(c), Oct. 26, 2017, 131 Stat. 1240, added item 2307.

2012—Pub. L. 112–199, §109(b), Nov. 27, 2012, 126 Stat. 1471, added items 2304 to 2306 and struck out former items 2304 "Responsibility of the Government Accountability Office" and 2305 "Coordination with certain other provisions of law".

2004—Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814, substituted "Government Accountability Office" for "General Accounting Office" in item 2304.

§2301. Merit system principles

(a) This section shall apply to—

(1) an Executive agency; and

(2) the Government Publishing 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.

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978, 92 Stat. 1113; amended Pub. L. 101–474, §5(c), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537.)

Editorial Notes

Amendments

1990—Subsec. (a). Pub. L. 101–474 redesignated par. (3) as (2) and struck out former par. (2) which provided that this section is applicable to Administrative Office of United States Courts.

Statutory Notes and Related Subsidiaries

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in subsec. (a)(2) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date

Chapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

Training for Supervisors

Pub. L. 115–73, title I, §106, Oct. 26, 2017, 131 Stat. 1238, provided that: "In consultation with the Special Counsel and the Inspector General of the agency (or senior ethics official of the agency for an agency without an Inspector General), the head of each agency shall provide training regarding how to respond to complaints alleging a violation of whistleblower protections (as defined in [former] section 2307 of title 5, United States Code, as added by section 107) available to employees of the agency—

"(1) to employees appointed to supervisory positions in the agency who have not previously served as a supervisor; and

"(2) on an annual basis, to all employees of the agency serving in a supervisory position."

[For definitions of "agency" and "employee" as used in section 106 of Pub. L. 115–73, set out above, see section 101 of Pub. L. 115–73, set out as a note under section 1212 of this title.]

Notification and Federal Employee Antidiscrimination and Retaliation

Pub. L. 107–174, May 15, 2002, 116 Stat. 566, as amended by Pub. L. 109–435, title VI, §604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 116–283, div. A, title XI, §§1132–1134(a)(1), (b), 1135–1137, Jan. 1, 2021, 134 Stat. 3900–3903, provided that:

"SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

"(a) Short Title.—This Act may be cited as the 'Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002'.

"(b) Table of Contents.—[Omitted.]

"TITLE I—GENERAL PROVISIONS

"SEC. 101. FINDINGS.

"Congress finds that—

"(1) Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination;

"(2) Congress has heard testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, that point to chronic problems of discrimination and retaliation against Federal employees;

"(3) in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000;

"(4) in October 2000, an Occupational Safety and Health Administration investigation found that the Environmental Protection Agency had retaliated against a senior scientist for disagreeing with that agency on a matter of science and for helping Congress to carry out its oversight responsibilities;

"(5) there have been several recent class action suits based on discrimination brought against Federal agencies, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Administration, the Immigration and Naturalization Service, the United States Marshals Service, the Department of Agriculture, the United States Information Agency, and the Social Security Administration;

"(6) notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law;

"(7) requiring annual reports to Congress on the number and severity of discrimination and whistleblower cases brought against each Federal agency should enable Congress to improve its oversight over compliance by agencies with the law; and

"(8) requiring Federal agencies to pay for any discrimination or whistleblower judgment, award, or settlement should improve agency accountability with respect to discrimination and whistleblower laws.

"SEC. 102. SENSE OF CONGRESS.

"It is the sense of Congress that—

"(1) Federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits, or workforce to pay for such judgments or settlements;

"(2) the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised;

"(3) Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act;

"(4) accountability in the enforcement of the rights of Federal employees is furthered when Federal agencies agree to take appropriate disciplinary action against Federal employees who are found to have intentionally committed discriminatory (including retaliatory) acts;

"(5)(A) accountability is not furthered if Federal agencies react to the increased accountability under this Act for what, by law, the agency is responsible by taking unfounded disciplinary actions against managers or by violating the procedural rights of managers who have been accused of discrimination; and

"(B) Federal agencies should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution and other essential communication skills; and

"(6)(A) Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and

"(B) a Federal agency, particularly if the amount of reimbursement under this Act is large relative to annual appropriations for that agency, may need to extend reimbursement over several years in order to avoid—

"(i) reductions in force;

"(ii) furloughs;

"(iii) other reductions in compensation or benefits for the workforce of the agency; or

"(iv) an adverse effect on the mission of the agency.

"SEC. 103. DEFINITIONS.

"For purposes of this Act—

"(1) the term 'applicant for Federal employment' means an individual applying for employment in or under a Federal agency;

"(2) the term 'basis of alleged discrimination' shall have the meaning given such term under section 303;

"(3) the term 'Federal agency' means an Executive agency (as defined in section 105 of title 5, United States Code), the United States Postal Service, or the Postal Regulatory Commission;

"(4) the term 'Federal employee' means an individual employed in or under a Federal agency;

"(5) the term 'former Federal employee' means an individual formerly employed in or under a Federal agency; and

"(6) the term 'issue of alleged discrimination' shall have the meaning given such term under section 303.

"SEC. 104. EFFECTIVE DATE.

"This Act and the amendments made by this Act shall take effect on the 1st day of the 1st fiscal year beginning more than 180 days after the date of the enactment of this Act [May 15, 2002].

"TITLE II—FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION

"SEC. 201. REIMBURSEMENT REQUIREMENT.

"(a) Applicability.—This section applies with respect to any payment made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code (relating to judgments, awards, and compromise settlements) to any Federal employee, former Federal employee, or applicant for Federal employment, in connection with any proceeding brought by or on behalf of such employee, former employee, or applicant under—

"(1) any provision of law cited in subsection (c); or

"(2) any other provision of law which prohibits any form of discrimination, as identified under rules issued under section 204.

"(b) Requirement.—An amount equal to the amount of each payment described in subsection (a) shall be reimbursed to the fund described in section 1304 of title 31, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, of such fund, or of such account available for the enforcement of any Federal law) available for operating expenses of the Federal agency to which the discriminatory conduct involved is attributable as determined under section 204.

"(c) Scope.—The provisions of law cited in this subsection are the following:

"(1) Section 2302(b) of title 5, United States Code, as applied to discriminatory conduct described in paragraphs (1) and (8), or described in paragraph (9) of such section as applied to discriminatory conduct described in paragraphs (1) and (8), of such section.

"(2) The provisions of law specified in section 2302(d) of title 5, United States Code.

"SEC. 202. NOTIFICATION REQUIREMENT.

"(a) In General.—Written notification of the rights and protections available to Federal employees, former Federal employees, and applicants for Federal employment (as the case may be) in connection with the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) shall be provided to such employees, former employees, and applicants—

"(1) in accordance with otherwise applicable provisions of law; or

"(2) if, or to the extent that, no such notification would otherwise be required, in such time, form, and manner as shall under section 204 be required in order to carry out the requirements of this section.

"(b) Posting on the Internet.—Any written notification under this section shall include, but not be limited to, the posting of the information required under paragraph (1) or (2) (as applicable) of subsection (a) on the Internet site of the Federal agency involved.

"(c) Employee Training.—Each Federal agency shall provide to the employees of such agency training regarding the rights and remedies applicable to such employees under the laws cited in section 201(c).

"(d) Notification of Final Agency Action.—

"(1) In general.—Not later than 90 days after the date on which an event described in paragraph (2) occurs with respect to a finding of discrimination (including retaliation), the head of the Federal agency subject to the finding shall provide notice—

"(A) on the public internet website of the agency, in a clear and prominent location linked directly from the home page of that website;

"(B) stating that a finding of discrimination (including retaliation) has been made; and

"(C) which shall remain posted for not less than 1 year.

"(2) Events described.—An event described in this paragraph is any of the following:

"(A) All appeals of a final action by a Federal agency involving a finding of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) have been exhausted.

"(B) All appeals of a final decision by the Equal Employment Opportunity Commission involving a finding of discrimination (including if the finding included a finding of retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) have been exhausted.

"(C) A court of jurisdiction issues a final judgment involving a finding of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a).

"(3) Contents.—A notification provided under paragraph (1) with respect to a finding of discrimination (including retaliation) shall—

"(A) identify the date on which the finding was made, the date on which each discriminatory act occurred, and the law violated by each such discriminatory act; and

"(B) advise Federal employees of the rights and protections available under the provisions of law covered by paragraphs (1) and (2) of section 201(a).

"SEC. 203. REPORTING REQUIREMENT.

"(a) Annual Report.—Subject to subsection (b), not later than 180 days after the end of each fiscal year, each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives, each committee of Congress with jurisdiction relating to the agency, the Equal Employment Opportunity Commission, and the Attorney General an annual report (in an electronic format prescribed by the Director of the Office of Personnel Management), which shall include, with respect to the fiscal year—

"(1) the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged;

"(2) the status or disposition of cases described in paragraph (1);

"(3) the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggregate amount of such reimbursements attributable to the payment of attorneys' fees, if any;

"(4) the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1);

"(5) the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2));

"(6) a detailed description of—

"(A) the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who—

"(i) discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or

"(ii) committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2); and

"(B) with respect to each of such laws, the number of employees who are disciplined in accordance with such policy and the specific nature of the disciplinary action taken;

"(7) an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity Commission in compliance with part 1614 of title 29 of the Code of Federal Regulations) including—

"(A) an examination of trends;

"(B) causal analysis;

"(C) practical knowledge gained through experience; and

"(D) any actions planned or taken to improve complaint or civil rights programs of the agency; and

"(8) any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.

"(b) First Report.—The 1st report submitted under subsection (a) shall include for each item under subsection (a) data for each of the 5 immediately preceding fiscal years (or, if data are not available for all 5 fiscal years, for each of those 5 fiscal years for which data are available).

"(c) Disciplinary Action Report.—Not later than 120 days after the date on which a Federal agency takes final action, or a Federal agency receives a final decision issued by the Equal Employment Opportunity Commission, involving a finding of discrimination (including retaliation) in violation of a provision of law covered by paragraph (1) or (2) of section 201(a), as applicable, the applicable Federal agency shall submit to the Commission a report stating—

"(1) whether disciplinary action has been proposed against a Federal employee as a result of the violation; and

"(2) the reasons for any disciplinary action proposed under paragraph (1).

"SEC. 204. RULES AND GUIDELINES.

"(a) Issuance of Rules and Guidelines.—The President (or the designee of the President) shall issue—

"(1) rules to carry out this title;

"(2) rules to require that a comprehensive study be conducted in the executive branch to determine the best practices relating to the appropriate disciplinary actions against Federal employees who commit the actions described under clauses (i) and (ii) of section 203(a)(6)(A); and

"(3) based on the results of such study, advisory guidelines incorporating best practices that Federal agencies may follow to take such actions against such employees.

"(b) Agency Notification Regarding Implementation of Guidelines.—Not later than 30 days after the issuance of guidelines under subsection (a), each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a written statement specifying in detail—

"(1) whether such agency has adopted and will fully follow such guidelines;

"(2) if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and

"(3) if such agency will not fully follow such guidelines, the reasons for the decision not to fully follow such guidelines and an explanation of the extent to which such agency will not follow such guidelines.

"SEC. 205. CLARIFICATION OF REMEDIES.

"Consistent with Federal law, nothing in this title shall prevent any Federal employee, former Federal employee, or applicant for Federal employment from exercising any right otherwise available under the laws of the United States.

"SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE [now GOVERNMENT ACCOUNTABILITY OFFICE] ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN DEPARTMENT OF JUSTICE COSTS.

"(a) Study on Exhaustion of Administrative Remedies.—

"(1) Study.—

"(A) In general.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study relating to the effects of eliminating the requirement that Federal employees aggrieved by violations of any of the laws specified under section 201(c) exhaust administrative remedies before filing complaints with the Equal Employment Opportunity Commission.

"(B) Contents.—The study shall include a detailed summary of matters investigated, information collected, and conclusions formulated that lead to determinations of how the elimination of such requirement will—

"(i) expedite handling of allegations of such violations within Federal agencies and will streamline the complaint-filing process;

"(ii) affect the workload of the Commission;

"(iii) affect established alternative dispute resolution procedures in such agencies; and

"(iv) affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.

"(2) Report.—Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a report containing the information required to be included in such study.

"(b) Study on Ascertainment of Certain Costs of the Department of Justice in Defending Discrimination and Whistleblower Cases.—

"(1) Study.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study of the methods that could be used for, and the extent of any administrative burden that would be imposed on, the Department of Justice to ascertain the personnel and administrative costs incurred in defending in each case arising from a proceeding identified under section 201(a)(1) and (2).

"(2) Report.—Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report containing the information required to be included in the study.

"(c) Studies on Statutory Effects on Agency Operations.—

"(1) In general.—Not later than 18 months after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct—

"(A) a study on the effects of section 201 on the operations of Federal agencies; and

"(B) a study on the effects of section 13 of the Contract Disputes Act of 1978 (41 U.S.C. 612) [now 41 U.S.C. 7108] on the operations of Federal agencies.

"(2) Contents.—Each study under paragraph (1) shall include, with respect to the applicable statutes of the study—

"(A) a summary of the number of cases in which a payment was made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code;

"(B) a summary of the length of time Federal agencies used to complete reimbursements of payments described under subparagraph (A); and

"(C) conclusions that assist in making determinations on how the reimbursements of payments described under subparagraph (A) will affect—

"(i) the operations of Federal agencies;

"(ii) funds appropriated on an annual basis;

"(iii) employee relations and other human capital matters;

"(iv) settlements; and

"(v) any other matter determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.

"(3) Reports.—Not later than 90 days after the completion of each study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on each study, respectively, to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Attorney General.

"(d) Study on Administrative and Personnel Costs Incurred by the Department of the Treasury.—

"(1) In general.—Not later than 1 year after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study on the extent of any administrative and personnel costs incurred by the Department of the Treasury to account for payments made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code, as a result of—

"(A) this Act; and

"(B) the Contracts Dispute [Contract Disputes] Act of 1978 (41 U.S.C. 601 note [see 41 U.S.C. 7101 et seq.]; Public Law 95–563).

"(2) Report.—Not later than 90 days after the completion of the study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on the study to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Attorney General.

"SEC. 207. COMPLAINT TRACKING.

"Not later than 1 year after the date of enactment of the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 [Jan. 1, 2021], each Federal agency shall establish a system to track each complaint of discrimination arising under section 2302(b)(1) of title 5, United States Code, and adjudicated through the Equal Employment Opportunity process from the filing of a complaint with the Federal agency to resolution of the complaint, including whether a decision has been made regarding disciplinary action as the result of a finding of discrimination.

"SEC. 208. NOTATION IN PERSONNEL RECORD.

"If a Federal agency takes an adverse action covered under section 7512 of title 5, United States Code, against a Federal employee for an act of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a), the agency shall, after all appeals relating to that action have been exhausted, include a notation of the adverse action and the reason for the action in the personnel record of the employee.

"TITLE III—EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE

"SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.

"(a) In General.—Each Federal agency shall post on its public Web site, in the time, form, and manner prescribed under section 303 (in conformance with the requirements of this section), summary statistical data relating to equal employment opportunity complaints filed with such agency by employees or former employees of, or applicants for employment with, such agency.

"(b) Content Requirements.—The data posted by a Federal agency under this section shall include, for the then current fiscal year, the following:

"(1) The number of complaints filed with such agency in such fiscal year.

"(2) The number of individuals filing those complaints (including as the agent of a class).

"(3) The number of individuals who filed 2 or more of those complaints.

"(4) The number of complaints (described in paragraph (1)) in which each of the various bases of alleged discrimination is alleged.

"(5) The number of complaints (described in paragraph (1)) in which each of the various issues of alleged discrimination is alleged.

"(6) The average length of time, for each step of the process, it is taking such agency to process complaints (taking into account all complaints pending for any length of time in such fiscal year, whether first filed in such fiscal year or earlier). Average times under this paragraph shall be posted—

"(A) for all such complaints,

"(B) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is not requested, and

"(C) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is requested.

"(7) The total number of final agency actions rendered in such fiscal year involving a finding of discrimination and, of that number—

"(A) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(B) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

"(8) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination—

"(A) the number and percentage involving a finding of discrimination based on each of the respective bases of alleged discrimination, and

"(B) of the number specified under subparagraph (A) for each of the respective bases of alleged discrimination—

"(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

"(9) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination—

"(A) the number and percentage involving a finding of discrimination in connection with each of the respective issues of alleged discrimination,

"(B) of the number specified under subparagraph (A) for each of the respective issues of alleged discrimination—

"(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

"(C) with respect to each finding described in subparagraph (A)—

"(i) the date of the finding,

"(ii) the affected Federal agency,

"(iii) the law violated, and

"(iv) whether a decision has been made regarding disciplinary action as a result of the finding.

"(10)(A) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the number that were first filed before the start of the then current fiscal year.

"(B) With respect to those pending complaints that were first filed before the start of the then current fiscal year—

"(i) the number of individuals who filed those complaints, and

"(ii) the number of those complaints which are at the various steps of the complaint process.

"(C) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the total number of complaints with respect to which the agency violated the requirements of section 1614.106(e)(2) of title 29 of the Code of Federal Regulations (as in effect on July 1, 2000, and amended from time to time) by failing to conduct within 180 days of the filing of such complaints an impartial and appropriate investigation of such complaints.

"(11) Data regarding each class action complaint filed against the agency alleging discrimination (including retaliation), including—

"(A) information regarding the date on which each complaint was filed,

"(B) a general summary of the allegations alleged in the complaint,

"(C) an estimate of the total number of plaintiffs joined in the complaint, if known,

"(D) the current status of the complaint, including whether the class has been certified, and

"(E) the case numbers for the civil actions in which discrimination (including retaliation) has been found.

"(c) Timing and Other Requirements.—

"(1) Current year data.—Data posted under this section for the then current fiscal year shall include both—

"(A) interim year-to-date data, updated quarterly, and

"(B) final year-end data.

"(2) Data for prior years.—The data posted by a Federal agency under this section for a fiscal year (both interim and final) shall include, for each item under subsection (b), such agency's corresponding year-end data for each of the 5 immediately preceding fiscal years (or, if not available for all 5 fiscal years, for however many of those 5 fiscal years for which data are available).

"SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

"(a) In General.—The Equal Employment Opportunity Commission shall post on its public Web site, in the time, form, and manner prescribed under section 303 for purposes of this section, summary statistical data relating to—

"(1) hearings requested before an administrative judge of the Commission on complaints described in section 301, and

"(2) appeals filed with the Commission from final agency actions on complaints described in section 301.

"(b) Specific Requirements.—The data posted under this section shall, with respect to the hearings and appeals described in subsection (a), include summary statistical data corresponding to that described in paragraphs (1) through (11) of section 301(b), and shall be subject to the same timing and other requirements as set forth in section 301(c).

"(c) Coordination.—The data required under this section shall be in addition to the data the Commission is required to post under section 301 as an employing Federal agency.

"SEC. 303. RULES.

"The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title.

"TITLE IV—PROCESSING AND REFERRAL

"SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.

"Each Federal agency shall—

"(1) be responsible for the fair and impartial processing and resolution of complaints of employment discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a); and

"(2) establish a model Equal Employment Opportunity Program that—

"(A) is not under the control, either structurally or practically, of the agency's Office of Human Capital or Office of the General Counsel (or the equivalent);

"(B) is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the agency; and

"(C) ensures the efficient and fair resolution of complaints alleging discrimination (including retaliation).

"SEC. 402. NO LIMITATION ON ADVICE OR COUNSEL.

"Nothing in this title shall prevent a Federal agency or a subcomponent of a Federal agency, or the Department of Justice, from providing advice or counsel to employees of that agency (or subcomponent, as applicable) in the resolution of a complaint.

"SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY.

"The head of each Federal agency's Equal Employment Opportunity Program shall report directly to the head of the agency.

"SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.

"(a) EEOC Findings of Discrimination.—

"(1) In general.—Not later than 30 days after the date on which the Equal Employment Opportunity Commission (referred to in this section as the 'Commission') receives, or should have received, a Federal agency report required under section 203(c), the Commission may refer the matter to which the report relates to the Office of Special Counsel if the Commission determines that the Federal agency did not take appropriate action with respect to the finding that is the subject of the report.

"(2) Notifications.—The Commission shall—

"(A) notify the applicable Federal agency if the Commission refers a matter to the Office of Special Counsel under paragraph (1); and

"(B) with respect to a fiscal year, include in the Annual Report of the Federal Workforce of the Commission covering that fiscal year—

"(i) the number of referrals made under paragraph (1) during that fiscal year; and

"(ii) a brief summary of each referral described in clause (i).

"(b) Referrals to Special Counsel.—The Office of Special Counsel shall accept and review a referral from the Commission under subsection (a)(1) for purposes of pursuing disciplinary action under the authority of the Office against a Federal employee who commits an act of discrimination (including retaliation).

"(c) Notification.—The Office of Special Counsel shall notify the Commission and the applicable Federal agency in a case in which—

"(1) the Office of Special Counsel pursues disciplinary action under subsection (b); and

"(2) the Federal agency imposes some form of disciplinary action against a Federal employee who commits an act of discrimination (including retaliation).

"(d) Special Counsel Approval.—A Federal agency may not take disciplinary action against a Federal employee for an alleged act of discrimination (including retaliation) referred by the Commission under this section, except in accordance with the requirements of section 1214(f) of title 5, United States Code."

[Pub. L. 116–283, div. A, title XI, §1134(a)(2), Jan. 1, 2021, 134 Stat. 3901, provided that: "The amendment made by paragraph (1)(C) [amending section 203(a) of Pub. L. 107–174, set out above] shall take effect on the date that is 1 year after the date of enactment of this Act [Jan. 1, 2021]."]

[For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.]

[For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security, and section 599A(c)(1) of Title 28, Judiciary and Judicial Procedure.]

[Pub. L. 116–283, div. A, title XI, §1134(a)(3), Jan. 1, 2021, 134 Stat. 3901, provided that: "Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 [Pub. L. 107–174] (5 U.S.C. 2301 note) [set out above], the report required under such section 203(a) may be submitted in an electronic format, as prescribed by the Director of the Office of Personnel Management, during the period beginning on the date of enactment of this Act [Jan. 1, 2021] and ending on the effective date in paragraph (2) [1 year after the date of enactment of this Act]."]

[Memorandum of President of the United States, July 8, 2003, 68 F.R. 45155, delegated to Director of Office of Personnel Management authority of President under section 204(a) of Public Law 107–174, set out above.]

§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 or under title 38;

(ix) a decision concerning pay, benefits, or awards, or 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) a decision to order psychiatric testing or examination;

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and

(xii) 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;

(C) "agency" means an Executive agency and the Government Publishing Office, but does not include—

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D);

(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(II) 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, provided that the determination be made prior to a personnel action; or

(iii) the Government Accountability Office; and

(D) "disclosure" means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—

(i) any 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.

(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) any 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;

(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) any violation (other than a violation of this section) 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; or

(C) any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is—

(i) not classified; or

(ii) if classified—

(I) has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and

(II) does not reveal intelligence sources and methods.¹

(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—

(i) with regard to remedying a violation of paragraph (8); or

(ii) other than with regard to remedying a violation of paragraph (8);

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

(C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(D) refusing to obey an order that would require the individual to violate a law, rule, or regulation;

(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;

(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;

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement—

(A) does not contain the following statement: "These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."; or

(B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or

(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

(c)(1) In this subsection—

(A) the term "new employee" means an individual—

(i) appointed to a position as an employee on or after the date of enactment of this subsection; and

(ii) who has not previously served as an employee; and

(B) the term "whistleblower protections" means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b).

(2) The head of each agency shall be responsible for—

(A) preventing prohibited personnel practices;

(B) complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and

(C) ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including—

(i) information with respect to whistleblower protections available to new employees during a probationary period;

(ii) the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and

(iii) the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to—

(I) the Special Counsel;

(II) the Inspector General of an agency;

(III) Congress (including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods); or

(IV) another employee of the agency who is designated to receive such a disclosure.

(3) The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed.

(4) The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists.

(5) Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).

(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),¹ 7281(e), and 7802(5) ¹ 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).

(f)(1) A disclosure shall not be excluded from subsection (b)(8) because—

(A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

(B) the disclosure revealed information that had been previously disclosed;

(C) of the employee's or applicant's motive for making the disclosure;

(D) the disclosure was not made in writing;

(E) the disclosure was made while the employee was off duty;

(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or

(G) of the amount of time which has passed since the occurrence of the events described in the disclosure.

(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the "disclosing employee"), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978, 92 Stat. 1114; amended Pub. L. 101–12, §4, Apr. 10, 1989, 103 Stat. 32; Pub. L. 101–474, §5(d), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 102–378, §2(5), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 103–94, §8(c), Oct. 6, 1993, 107 Stat. 1007; Pub. L. 103–359, title V, §501(c), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103–424, §5, Oct. 29, 1994, 108 Stat. 4363; Pub. L. 104–197, title III, §315(b)(2), Sept. 16, 1996, 110 Stat. 2416, Pub. L. 104–201, div. A, title XI, §1122(a)(1), title XVI, §1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L. 105–339, §6(a), (b), (c)(2), Oct. 31, 1998, 112 Stat. 3187, 3188; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, §931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 112–199, title I, §§101(a), (b)(1)(B), (2)(B), (C), 102–104(b)(1), 105, 112, Nov. 27, 2012, 126 Stat. 1465–1468, 1472; Pub. L. 112–277, title V, §505(a), Jan. 14, 2013, 126 Stat. 2478; Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 114–113, div. J, title II, §238, Dec. 18, 2015, 129 Stat. 2700; Pub. L. 115–40, §2, June 14, 2017, 131 Stat. 861; Pub. L. 115–73, title I, §§103, 107(a)(1), Oct. 26, 2017, 131 Stat. 1236, 1238; Pub. L. 115–91, div. A, title X, §1097(b)(1)(B), (c)(1), Dec. 12, 2017, 131 Stat. 1616, 1618; Pub. L. 116–92, div. E, title LVII, §5721, Dec. 20, 2019, 133 Stat. 2175; Pub. L. 116–283, div. A, title XI, §1138, Jan. 1, 2021, 134 Stat. 3905.)

Editorial Notes

References in Text

Section 1308(b) of the Alaska National Interest Lands Conservation Act, referred to in subsec. (e)(1)(C), is classified to section 3198(b) of Title 16, Conservation.

Section 301(c) of the Foreign Service Act of 1980, referred to in subsec. (e)(1)(D), is classified to section 3941(c) of Title 22, Foreign Relations and Intercourse.

Section 106(f) of title 38, referred to in subsec. (e)(1)(E), was enacted subsequent to the enactment of subsec. (e) of this section.

Section 7802(5) of title 38, referred to in subsec. (e)(1)(E), was redesignated section 7802(e) of title 38 by Pub. L. 108–170, title III, §304(b)(3), Dec. 6, 2003, 117 Stat. 2059.

Amendments

2021—Subsec. (b)(13). Pub. L. 116–283 substituted "agreement—" for "agreement", designated remainder of existing provisions as subpar. (A), inserted "or the Office of Special Counsel" after "Inspector General", and added subpar. (B).

2019—Subsec. (b)(8)(C). Pub. L. 116–92, §5721(1), added subpar. (C).

Subsec. (c)(2)(C)(iii)(III). Pub. L. 116–92, §5721(2), inserted "(including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods)" after "Congress".

2017—Subsec. (b)(9)(C). Pub. L. 115–91, §1097(c)(1)(A), inserted "(or any other component responsible for internal investigation or review)" after "Inspector General".

Subsec. (b)(9)(D). Pub. L. 115–40 struck out "for" after "(D)" and inserted ", rule, or regulation" after "a law".

Subsec. (b)(14). Pub. L. 115–73, §103, added par. (14).

Subsecs. (c) to (f). Pub. L. 115–91, §1097(b)(1)(B), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.

Pub. L. 115–73, §107(a)(1), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c) which read as follows: "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, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. 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."

Subsec. (f)(1)(F), (G). Pub. L. 115–91, §1097(c)(1)(B)(i), added subpar. (F) and redesignated former subpar. (F) as (G).

Subsec. (f)(2). Pub. L. 115–91, §1097(c)(1)(B)(ii), added par. (2) and struck out former par. (2) which read as follows: "If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure."

2015—Subsec. (a)(2)(A)(viii). Pub. L. 114–113 inserted "or under title 38" after "chapter 43 of this title".

2013—Subsec. (a)(2)(C)(ii). Pub. L. 112–277 added cl. (ii) and struck out former cl. (ii) which read as follows:

"(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

"(II) 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, provided that the determination be made prior to a personnel action; or".

2012—Subsec. (a)(2)(A)(xi), (xii). Pub. L. 112–199, §104(a), added cl. (xi) and redesignated former cl. (xi) as (xii).

Subsec. (a)(2)(C)(i). Pub. L. 112–199, §101(b)(1)(B), inserted "or section 2302(b)(9)(A)(i), (B), (C), or (D)" after "(b)(8)".

Subsec. (a)(2)(C)(ii). Pub. L. 112–199, §105, added cl. (ii) and struck out former cl. (ii) which read as follows: "the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence 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".

Subsec. (a)(2)(D). Pub. L. 112–199, §102, added subpar. (D).

Subsec. (b). Pub. L. 112–199, §103, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: "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."

Subsec. (b)(8)(A)(i). Pub. L. 112–199, §101(a)(1), substituted "any violation" for "a violation".

Subsec. (b)(8)(B)(i). Pub. L. 112–199, §101(a)(2), substituted "any violation (other than a violation of this section)" for "a violation".

Subsec. (b)(9)(A). Pub. L. 112–199, §101(b)(2)(B)(i), added subpar. (A) and struck out former subpar. (A) read as follows: "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;".

Subsec. (b)(9)(B). Pub. L. 112–199, §101(b)(2)(B)(ii), inserted "(i) or (ii)" after "subparagraph (A)".

Subsec. (b)(13). Pub. L. 112–199, §104(b)(1), added par. (13).

Subsec. (c). Pub. L. 112–199, §112, inserted ", including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures" after "chapter 12 of this title".

Subsec. (f). Pub. L. 112–199, §101(b)(2)(C), added subsec. (f).

2008—Subsec. (a)(2)(C)(ii). Pub. L. 110–417 substituted "National Geospatial-Intelligence Agency" for "National Imagery and Mapping Agency".

2004—Subsec. (a)(2)(C)(iii). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

1998—Subsec. (a)(1). Pub. L. 105–339, §6(c)(2), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "For purposes of this title, 'prohibited personnel practice' means the following:

"(A) Any action described in subsection (b) of this section.

"(B) Any action or failure to act that is designated as a prohibited personnel action under section 1599c(a) of title 10."

Subsec. (b)(10) to (12). Pub. L. 105–339, §6(a), struck out "or" at end of par. (10), added par. (11), and redesignated former par. (11) as (12).

Subsec. (e). Pub. L. 105–339, §6(b), added subsec. (e).

1996—Subsec. (a)(1). Pub. L. 104–201, §1615(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "For the purpose of this title, 'prohibited personnel practice' means any action described in subsection (b) of this section."

Subsec. (a)(2)(C)(ii). Pub. L. 104–201, §1122(a)(1), substituted "National Imagery and Mapping Agency" for "Central Imagery Office".

Subsec. (b)(2). Pub. L. 104–197 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "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 except as provided under section 3303(f);".

1994—Subsec. (a)(2)(A). Pub. L. 103–424, §5(a)(3), in concluding provisions, inserted before semicolon ", 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".

Subsec. (a)(2)(A)(x), (xi). Pub. L. 103–424, §5(a)(1), (2), added cls. (x) and (xi) and struck out former cl. (x) which read as follows: "any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level;".

Subsec. (a)(2)(B). Pub. L. 103–424, §5(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: " 'covered position' means 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—

"(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

"(ii) any position 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."

Subsec. (a)(2)(C)(i). Pub. L. 103–424, §5(c), inserted before semicolon ", except in the case of an alleged prohibited personnel practice described under subsection (b)(8)".

Subsec. (a)(2)(C)(ii). Pub. L. 103–359 inserted "the Central Imagery Office," after "Defense Intelligence Agency,".

Subsec. (c). Pub. L. 103–424, §5(d), inserted before period at end of first sentence ", 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".

1993—Subsec. (b)(2). Pub. L. 103–94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "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;".

1992—Subsec. (b)(8)(B). Pub. L. 102–378 substituted "Special Counsel" for "Special Counsel of the Merit Systems Protection Board".

1990—Subsec. (a)(2)(C). Pub. L. 101–474 struck out ", the Administrative Office of the United States Courts," after "means an Executive agency".

1989—Subsec. (b)(8). Pub. L. 101–12, §4(a), in introductory provision inserted ", or threaten to take or fail to take," after "fail to" and substituted "because of" for "as a reprisal for", in subpar. (A) substituted "any disclosure" for "a disclosure", in subpar. (A)(ii) inserted "gross" before "mismanagement", in subpar. (B) substituted "any disclosure" for "a disclosure", and in subpar. (B)(ii) inserted "gross" before "mismanagement".

Subsec. (b)(9). Pub. L. 101–12, §4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: "take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;".

Statutory Notes and Related Subsidiaries

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in subsec. (a)(2)(C) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Effective Date of 1996 Amendment

Amendment by section 1122(a)(1) of Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

Pub. L. 104–197, title III, §315(c), Sept. 16, 1996, 110 Stat. 2416, provided that: "This section [amending this section and section 3303 of this title] shall take effect 30 days after the date of the enactment of this Act [Sept. 16, 1996]."

Effective Date of 1993 Amendment; Savings Provision

Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Savings Provision

Pub. L. 112–199, title II, §201, Nov. 27, 2012, 126 Stat. 1475, provided that: "Nothing in this Act [see section 1 of Pub. L. 112–199, set out as a Short Title of 2012 Amendment note under section 101 of this title] shall be construed to imply any limitation on any protections afforded by any other provision of law to employees and applicants."

Pub. L. 105–339, §6(d), Oct. 31, 1998, 112 Stat. 3188, provided that: "This section [amending this section and repealing section 1599c of Title 10, Armed Forces] shall be treated as if it had never been enacted for purposes of any personnel action (within the meaning of section 2302 of title 5, United States Code) preceding the date of enactment of this Act [Oct. 31, 1998]."

Agency Websites

Pub. L. 112–199, title I, §104(b)(2), Nov. 27, 2012, 126 Stat. 1467, provided that: "Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions."

Nondisclosure Policy, Form, or Agreement in Effect Before the Effective Date

Pub. L. 112–199, title I, §104(b)(3), Nov. 27, 2012, 126 Stat. 1467, provided that: "With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) for implementation or enforcement—

"(A) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

"(B) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection [set out as a note above]."

Disclosure of Censorship Related to Research, Analysis, or Technical Information

Pub. L. 112–199, title I, §110, Nov. 27, 2012, 126 Stat. 1471, as amended by Pub. L. 115–73, title I, §107(a)(2)(C), Oct. 26, 2017, 131 Stat. 1239; Pub. L. 115–91, div. A, title X, §1097(b)(3)(C), Dec. 12, 2017, 131 Stat. 1618, provided that:

"(a) Definitions.—In this subsection—

"(1) the term 'agency' has the meaning given under section 2302(a)(2)(C) of title 5, United States Code;

"(2) the term 'applicant' means an applicant for a covered position;

"(3) the term 'censorship related to research, analysis, or technical information' means any effort to distort, misrepresent, or suppress research, analysis, or technical information;

"(4) the term 'covered position' has the meaning given under section 2302(a)(2)(B) of title 5, United States Code;

"(5) the term 'employee' means an employee in a covered position in an agency; and

"(6) the term 'disclosure' has the meaning given under section 2302(a)(2)(D) of title 5, United States Code.

"(b) Protected Disclosure.—

"(1) In general.—Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—

"(A) shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if—

"(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

     "(I) any violation of 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; and

"(ii) such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and

"(B) shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if—

"(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

     "(I) any violation of 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; and

"(ii) the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods.

"(2) Disclosures not excluded.—A disclosure shall not be excluded from paragraph (1) for any reason described under section 2302(f)(1) or (2) of title 5, United States Code.

"(3) Rule of construction.—Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information."

Nondisclosure Policies, Forms, and Agreements

Pub. L. 112–199, title I, §115, Nov. 27, 2012, 126 Stat. 1472, provided that:

"(a) In General.—

"(1) Requirement.—Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: 'These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.'.

"(2) Agency websites.—Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.

"(3) Enforceability.—

"(A) In general.—Any nondisclosure policy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

"(B) Nondisclosure policy, form, or agreement in effect before the effective date.—With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under paragraph (1) for implementation or enforcement—

"(i) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

"(ii) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2).

"(b) Persons Other Than Government Employees.—Notwithstanding subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods."

Executive Documents

Federal Benefits and Non-Discrimination

Memorandum of President of the United States, June 17, 2009, 74 F.R. 29393, provided:

Memorandum for the Heads of Executive Departments and Agencies

Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners. Leading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex. Executive departments and agencies, however, may only provide benefits on that basis if they have legal authorization to do so. My Administration is not authorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Administration, in consultation with the Secretary of State, who oversees our Foreign Service employees, and the Director of the Office of Personnel Management, who oversees human resource management for our civil service employees, has identified areas in which statutory authority exists to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex. Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and the brightest employees.

I hereby request the following:

Section 1. Extension of Identified Benefits. The Secretary of State and the Director of the Office of Personnel Management shall, in consultation with the Department of Justice, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.

Sec. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the Office of Personnel Management, who, in consultation with the Department of Justice, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.

Sec. 3. Promoting Compliance with Existing Law Requiring Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The Office of Personnel Management shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) Authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) Functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 5. Publication. The Director of the Office of Personnel Management is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Extension of Benefits to Same-Sex Domestic Partners of Federal Employees

Memorandum of President of the United States, June 2, 2010, 75 F.R. 32247, provided:

Memorandum for the Heads of Executive Departments and Agencies

For far too long, many of our Government's hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. That is why, last June, I directed the heads of executive departments and agencies (agencies), in consultation with the Office of Personnel Management (OPM), to conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families. Although legislative action is necessary to provide full equality to LGBT Federal employees, the agencies have identified a number of benefits that can be extended under existing law. OPM, in consultation with the Department of Justice, has provided me with a report recommending that all of the identified benefits be extended.

Accordingly, I hereby direct the following:

Section 1. Immediate Actions To Extend Benefits. Agencies should immediately take the following actions, consistent with existing law, in order to extend benefits to the same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees:

(a) The Director of OPM should take appropriate action to:

(i) clarify that the children of employees' same-sex domestic partners fall within the definition of "child" for purposes of Federal child-care subsidies, and, where appropriate, for child-care services;

(ii) clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as "family members";

(iii) issue a proposed rule that would clarify that employees' same-sex domestic partners qualify as "family members" for purposes of noncompetitive appointments made pursuant to Executive Order 12721 of July 30, 1990;

(iv) issue a proposed rule that would add a Federal retiree's same-sex domestic partner to the list of individuals presumed to have an insurable interest in the employee pursuant to 5 U.S.C. 8339(k)(1), 8420;

(v) clarify that under appropriate circumstances, employees' same-sex domestic partners and their children qualify as dependents for purposes of evacuation payments made under 5 U.S.C. 5522–5523; Folio: 1632 [sic]

(vi) amend its guidance on implementing President Clinton's April 11, 1997, memorandum to heads of executive departments and agencies on "Expanded Family and Medical Leave Policies" to specify that the 24 hours of unpaid leave made available to Federal employees in connection with (i) school and early childhood educational activities; (ii) routine family medical purposes; and (iii) elderly relatives' health or care needs, may be used to meet the needs of an employee's same-sex domestic partner or the same-sex domestic partner's children; and

(vii) clarify that employees' same-sex domestic partners qualify as dependents for purposes of calculating the extra allowance payable under 5 U.S.C. 5942a to assist employees stationed on Johnston Island, subject to any limitations applicable to spouses.

(b) The Administrator of General Services should take appropriate action to amend the definitions of "immediate family" and "dependent" appearing in the Federal Travel Regulations, 41 C.F.R. Chs. 300–304, to include same-sex domestic partners and their children, so that employees and their domestic partners and children can obtain the full benefits available under applicable law, including certain travel, relocation, and subsistence payments.

(c) All agencies offering any of the benefits specified by OPM in implementing guidance under section 3 of this memorandum, including credit union membership, access to fitness facilities, and access to planning and counseling services, should take all appropriate action to provide the same level of benefits that is provided to employees' spouses and their children to employees' same-sex domestic partners and their children.

(d) All agencies with authority to provide benefits to employees outside of the context of title 5, United States Code should take all appropriate actions to ensure that the benefits being provided to employees' spouses and their children are also being provided, at an equivalent level wherever permitted by law, to their employees' same-sex domestic partners and their children.

Sec. 2. Continuing Obligation To Provide New Benefits. In the future, all agencies that provide new benefits to the spouses of Federal employees and their children should, to the extent permitted by law, also provide them to the same-sex domestic partners of their employees and those same-sex domestic partners' children. This section applies to appropriated and nonappropriated fund instrumentalities of such agencies.

Sec. 3. Monitoring and Guidance. The Director of OPM shall monitor compliance with this memorandum, and may instruct agencies to provide the Director with reports on the status of their compliance, and prescribe the form Folio: 1633 [sic] and manner of such reports. The Director of OPM shall also issue guidance to ensure consistent and appropriate implementation.

Sec. 4. Reporting. By April 1, 2011, and annually thereafter, the Director of OPM shall provide the President with a report on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.

Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:

(i) authority granted by law or Executive Order to an agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 6. Publication. The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

¹ So in original. The period probably should be a semicolon.

¹ See References in Text note below.

§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 an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—

(1) made—

(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency;

(B) to the Inspector General;

(C) to the Office of Professional Responsibility of the Department of Justice;

(D) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

(E) to the Inspection Division of the Federal Bureau of Investigation;

(F) as described in section 7211;

(G) to the Office of Special Counsel; or

(H) to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and

(2) which the employee or applicant reasonably believes evidences—

(A) any 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.

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, policymaking, 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.

(d)(1) An employee of the Federal Bureau of Investigation who makes an allegation of a reprisal under regulations promulgated under this section may appeal a final determination or corrective action order by the Bureau under those regulations to the Merit Systems Protection Board pursuant to section 1221.

(2) If no final determination or corrective action order has been made or issued for an allegation described in paragraph (1) before the expiration of the 180-day period beginning on the date on which the allegation is received by the Federal Bureau of Investigation, the employee described in that paragraph may seek corrective action directly from the Merit Systems Protection Board pursuant to section 1221.

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978, 92 Stat. 1117; amended Pub. L. 101–12, §9(a)(1), Apr. 10, 1989, 103 Stat. 34; Pub. L. 114–302, §2, Dec. 16, 2016, 130 Stat. 1516; Pub. L. 117–263, div. E, title LIII, §5304(a), Dec. 23, 2022, 136 Stat. 3250.)

Editorial Notes

Amendments

2022—Subsec. (d). Pub. L. 117–263 added subsec. (d).

2016—Subsec. (a). Pub. L. 114–302 substituted "an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—" for "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—" in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) and (2) which read as follows:

"(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".

1989—Subsec. (c). Pub. L. 101–12 substituted "applicable provisions of sections 1214 and 1221" for "the provisions of section 1206".

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Whistleblower Protections for Federal Bureau of Investigation Contractors

Pub. L. 115–118, title I, §110(b), Jan. 19, 2018, 132 Stat. 16, provided that:

"(1) In general.—Any employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, 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 a contractor employee as a reprisal for a disclosure of information—

"(A) made—

"(i) to a supervisor in the direct chain of command of the contractor employee;

"(ii) to the Inspector General;

"(iii) to the Office of Professional Responsibility of the Department of Justice;

"(iv) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

"(v) to the Inspection Division of the Federal Bureau of Investigation;

"(vi) to the Office of Special Counsel; or

"(vii) to an employee designated by any officer, employee, office, or division described in clauses (i) through (vii) for the purpose of receiving such disclosures; and

"(B) which the contractor employee reasonably believes evidences—

"(i) any violation of any law, rule, or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or

"(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

"(2) Actions by request.—A personnel action under paragraph (1) is prohibited even if the action is undertaken at the request of an official of the Federal Bureau of Investigation, unless the request takes the form of a nondiscretionary directive and is within the authority of the official making the request.

"(3) Regulations.—The Attorney General shall prescribe regulations to ensure that a personnel action described in paragraph (1) shall not be taken against a contractor employee of the Federal Bureau of Investigation as a reprisal for any disclosure of information described in subparagraph (A) of such paragraph.

"(4) Enforcement.—The President shall provide for the enforcement of this subsection.

"(5) Definitions.—In this subsection:

"(A) The term 'contractor employee' means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation.

"(B) The term 'personnel action' means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of title 5, United States Code, with respect to a contractor employee."

Executive Documents

Delegation of Responsibilities Concerning FBI Employees Under the Civil Service Reform Act of 1978

Memorandum of President of the United States, Apr. 14, 1997, 62 F.R. 23123, provided:

Memorandum for the Attorney General

By the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Attorney General the functions concerning employees of the Federal Bureau of Investigation vested in the President by section 101(a) of the Civil Service Reform Act of 1978 (Public Law 95–454), as amended by the Whistleblower Protection Act of 1989 (Public Law 101–12), and codified at section 2303(c) of title 5, United States Code, and direct the Attorney General to establish appropriate processes within the Department of Justice to carry out these functions. Not later than March 1 of each year, the Attorney General shall provide a report to the President stating the number of allegations of reprisal received during the preceding calendar year, the disposition of each allegation resolved during the preceding calendar year, and the number of unresolved allegations pending as of the end of the calendar year.

All of the functions vested in the President by section 2303(c) of title 5, United States Code, and delegated to the Attorney General, may be redelegated, as appropriate, provided that such functions may not be redelegated to the Federal Bureau of Investigation.

You are authorized and directed to publish this memorandum in the Federal Register.

William J. Clinton.      

§2304. Prohibited personnel practices affecting the Transportation Security Administration

(a) In General.—Notwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by—

(1) the provisions of section 2302(b)(1), (8), and (9);

(2) any provision of law implementing section 2302(b)(1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and

(3) any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2).

(b) Rule of Construction.—Nothing in this section shall be construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might otherwise be entitled under law.

(Added Pub. L. 112–199, title I, §109(a)(2), Nov. 27, 2012, 126 Stat. 1470.)

Editorial Notes

Prior Provisions

A prior section 2304 was renumbered section 2305 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 112–199, title I, §109(c), Nov. 27, 2012, 126 Stat. 1471, provided that: "The amendments made by this section [enacting this section and renumbering sections 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title] shall take effect on the date of enactment of this section [Nov. 27, 2012]."

§2305. Responsibility of the Government Accountability Office

If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the Government Accountability 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.

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978, 92 Stat. 1118, §2304; amended Pub. L. 102–378, §2(6), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 104–66, title II, §2181(e), Dec. 21, 1995, 109 Stat. 732; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; renumbered §2305, Pub. L. 112–199, title I, §109(a)(1), Nov. 27, 2012, 126 Stat. 1470.)

Editorial Notes

Prior Provisions

A prior section 2305 was renumbered section 2306 of this title.

Amendments

2012—Pub. L. 112–199 renumbered section 2304 of this title as this section.

2004—Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in section catchline and text.

1995—Pub. L. 104–66 struck out subsec. (a) designation before "If requested by" and struck out subsec. (b) which read as follows: "The General Accounting Office shall prepare and submit an annual report to the President and the Congress on the activities of the Merit Systems Protection Board and the Office of Personnel Management. The report shall include a description of—

"(1) significant actions taken by the Board to carry out its functions under this title; and

"(2) significant actions of the Office of Personnel Management, including an analysis of whether or not the actions of the Office are in accord with merit system principles and free from prohibited personnel practices."

1992—Subsec. (b). Pub. L. 102–378 substituted "The" for "the" at beginning of first sentence.

§2306. 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),¹ the Central Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following),¹ 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),¹ 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).

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978, 92 Stat. 1118, §2305; renumbered §2306, Pub. L. 112–199, title I, §109(a)(1), Nov. 27, 2012, 126 Stat. 1470.)

Editorial Notes

References in Text

The National Security Act of 1947, referred to in text, is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§3001 et seq.) of Title 50. Section 102 of the Act was repealed by Pub. L. 104–293, title VIII, §805(a), Oct. 11, 1996, 110 Stat. 3477, another section 102 was repealed by Pub. L. 108–458, title I, §§1011(a), 1097(a), Dec. 17, 2004, 118 Stat. 3643, 3698, and subsequently another section 102, as added by Pub. L. 108–458, title I, §1011(a), Dec. 17, 2004, 118 Stat. 3644, was classified to section 403 of Title 50 prior to editorial reclassification to section 3023 of Title 50. For complete classification of this Act to the Code, see Tables.

The Central Intelligence Agency Act of 1949, referred to in text, is act June 20, 1949, ch. 227, 63 Stat. 208, which was formerly classified generally to section 403a et seq. of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified generally to chapter 46 (§3501 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.

The Act entitled "An Act to provide certain administrative authorities for the National Security Agency, and for other purposes", approved May 29, 1959, referred to in text, is Pub. L. 86–36, May 29, 1959, 73 Stat. 63, which was formerly set out as a note under section 402 of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified generally to chapter 47 (§3601 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.

The Act entitled "An Act to amend the Internal Security Act of 1950", approved March 26, 1964, referred to in text, is act Sept. 23, 1950, ch. 1024, title III, as added Mar. 26, 1964, Pub. L. 88–290, 78 Stat. 168, which is classified principally to subchapter III (§831 et seq.) of chapter 23 of Title 50. For complete classification of this Act to the Code, see Tables.

Amendments

2012—Pub. L. 112–199 renumbered section 2305 of this title as this section.

¹ See References in Text note below.

[§2307. Repealed. Pub. L. 115–91, div. A, title X, §1097(b)(1)(A), Dec. 12, 2017, 131 Stat. 1616]

Section, added Pub. L. 115–73, title I, §107(b), Oct. 26, 2017, 131 Stat. 1239, related to information on whistleblower protections and agency responsibilities.

CHAPTER 29—COMMISSIONS, OATHS, RECORDS, AND REPORTS

SUBCHAPTER I—COMMISSIONS, OATHS, AND RECORDS

        

SUBCHAPTER II—REPORTS

        

Editorial Notes

Amendments

1978—Pub. L. 95–454, title IX, §906(a)(16), Oct. 13, 1978, 92 Stat. 1226, substituted "Office of Personnel Management" for "Civil Service Commission" in item 2951.

SUBCHAPTER I—COMMISSIONS, OATHS, AND RECORDS

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 411.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 10.	R.S. §1773.

The words "confirmed by" are substituted for "advised and consented to".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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, the Secretary of Homeland Security, 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 411; Pub. L. 94–183, §2(3), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 109–241, title IX, §902(a)(2), July 11, 2006, 120 Stat. 566.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	4 U.S.C. 42 (as applicable to civil commissions).	[None.]
(b)	5 U.S.C. 11.	Mar. 3, 1875, ch. 131, §14, 18 Stat. 420.
		Mar. 28, 1896, ch. 73, 29 Stat. 75.
		Mar. 3, 1905, ch. 1422, 33 Stat. 990.
(c)	5 U.S.C. 12.	Aug. 8, 1888, ch. 786, 25 Stat. 387.

In subsection (a), the words "Except as provided by subsections (b) and (c) of this section," are added on authority of former sections 11 and 12, which are codified in subsections (b) and (c) of this section. The words "the commission of an officer" are substituted for "all civil commissions for officers of the United States" because of the definition of "officer" in section 2104. The words "by the President" are coextensive with and substituted for "by the President, by and with the advice and consent of the Senate, or by the President alone".

In subsection (b), the words "officer in the civil service or uniformed services" are substituted for "officer" because of the definition of "officer" in section 2104. The words "direction and" are omitted as included within "the control". The words "the Secretary of Defense" are added on authority of the Acts of July 26, 1947, ch. 343, §305(a), 61 Stat. 508, and Aug. 10, 1949, ch. 412, §12(g), 63 Stat. 591. The words "the Secretary of a military department" are substituted for "the Secretary of War, the Secretary of the Navy" (appearing in the Act of Mar. 28, 1896) because of the definition of "military department" in section 102. The title of the Secretary of War was changed to Secretary of the Army by the Act of July 26, 1947, ch. 343, §205, 61 Stat. 501. "Secretary of the Air Force" is included on authority of the Act of July 26, 1947, ch. 343, §207(a), (f), 61 Stat. 502. The words "Secretary of Commerce" are substituted for "Secretary of Commerce and Labor" on authority of the Act of Mar. 4, 1913, ch. 141, §1, 37 Stat. 736. The words "under the departmental seal" are substituted for "and the departmental seal affixed thereto". The words "any laws to the contrary notwithstanding" are omitted as unnecessary. The last sentence of section 14 of the Act of Mar. 3, 1875, is omitted as executed.

In subsection (c), the words "and shall be" and "any laws to the contrary notwithstanding" are omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2006—Subsec. (b). Pub. L. 109–241 inserted "the Secretary of Homeland Security," after "the Secretary of the Interior,".

1975—Subsec. (b). Pub. L. 94–183 struck out "the Postmaster General," after "under the control of".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 411.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 18.	R.S. §1758.
(b)	5 U.S.C. 16a(a) (less 1st 9 words after last comma).	June 26, 1943, ch. 145, §206 (less 1st 9 words after last comma), 57 Stat. 196.
(c)	5 U.S.C. 16a(b).	Sept. 30, 1961, Pub. L. 87–332 (par. under "General Provision"), 75 Stat. 743.
	5 U.S.C. 92a.	July 3, 1926, ch. 752, 44 Stat. 830.

In subsection (b), the words "On and after June 26, 1943" are omitted as executed, and the word "officer" is omitted as included in "employee". The words "Executive agency" are coextensive with and substituted for "executive departments or independent establishments, including any agency the majority of the stock of which is owned by the Government of the United States" because of the definition of "Executive agency" in section 105. The words "or the Secretary of a military department with respect to an employee of his department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301. The words "of the Federal Government" and "and to have the same force and effect as oaths administered by officers having seals" are omitted as unnecessary.

In subsection (c), the word "Constitution" is omitted because "laws", as used in this title, encompasses the Constitution. In subsection (c)(1), the words "of the United States" are omitted as unnecessary. In subsection (c)(2), the words "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" are coextensive with and substituted for "notaries public duly appointed in any State, District, or Territory of the United States, by clerks and prothonotaries of courts of record of any such State, District, or Territory, by the deputies of such clerks and prothonotaries, and by all magistrates authorized by the laws of or pertaining to any such State, District, or Territory to administer oaths".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 16a(a) (1st 9 words after last comma).	June 26, 1943, ch. 145, §206 (1st 9 words after last comma), 57 Stat. 196.
		Sept. 30, 1961, Pub. L. 87–332 (so much of par. under "General Provision" as inserted "(a)"), 75 Stat. 743.
	5 U.S.C. 20.	Aug. 29, 1890, ch. 820, §1 (2d sentence under "Fourth Auditor's Office"), 26 Stat. 371.

The section is restated to combine former sections 16a(a) (1st 9 words after last comma) and 20. The prohibition is restated in positive form. The words "officer" and "clerk" are omitted as included in "employee". Reference to oaths taken on promotion is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 17b.	Aug. 14, 1937, ch. 624, 50 Stat. 640. Nov. 22, 1943, ch. 303, 57 Stat. 591.
(b)	5 U.S.C. 17c.	Mar. 28, 1955, ch. 17, 69 Stat. 14.

In subsection (a), the word "civilian" is omitted as unnecessary because of the definition of "employee" in section 2105. The words "Executive agency" are coextensive with and substituted for "executive departments and independent establishments of the United States" because of the definition of "Executive agency" in section 105. The words "the Secretary of a military department with respect to an employee of his department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 21.	R.S. §1759.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER II—REPORTS

§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; and

(E) removal; and

(2) the Office keep records of these actions.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412; Pub. L. 95–454, title IX, §906(a)(2), (3), (16), Oct. 13, 1978, 92 Stat. 1224, 1226.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 633(2)8 (less last sentence).	Jan. 16, 1883, ch. 27, §2(2)8 (less last sentence), 22 Stat. 404.

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302.

In paragraph (1), the word "authority" is substituted for "power". The words "or employment" are omitted as included within "appointment".

In paragraph (1)(B), the words "separation during probation" are substituted for "of the rejection of any such person after probation". The words "rejection . . . after probation" refer to a rejection, i.e., separation, after a portion of the probationary period has been served but before the end of the probationary period. This is so because an individual can be rejected only during the probationary period. After he has completed the probationary period, he can be removed only under procedures governing removals from the competitive service, and removals of this nature are covered by paragraph (E).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454, §906(a)(16), substituted "Office of Personnel Management" for "Civil Service Commission" in section catchline.

Pars. (1), (2). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission" and "Office" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 106.	R.S. §195.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101.

The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, 201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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 Government Accountability Office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 642a.	Jan. 16, 1883, ch. 27, §11; added July 25, 1956, ch. 730, §1, 70 Stat. 652.

In subsection (a), the words, "Executive agency" are substituted for "department, agency, or independent establishment of the executive branch of the Federal Government (including any corporation wholly owned by the United States)" in view of the definition of "Executive agency" in section 105. The exception of "a Government controlled corporation" is subsection (b) (2) is added to preserve the application to corporations wholly owned by the United States.

The exception of "the General Accounting Office" in subsection (b)(3) is added to preserve application to the executive branch.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2004—Subsec. (b)(3). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413; Pub. L. 103–437, §3(b), Nov. 2, 1994, 108 Stat. 4581.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 105a.	May 29, 1928, ch. 901, §2, 45 Stat. 996.

The words "Executive agency" are substituted for "executive department and independent establishment" in view of the definition of "Executive agency" in section 105.

The words "Committee on Government Operations of the House of Representatives" are substituted for "Committee on Expenditures in the Executive Departments of the House of Representatives" on authority of H. Res. 647 of the 82d Congress, adopted July 3, 1952.

The words "Committee on Government Operations of the Senate" are substituted for "Committee on Expenditures in the Executive Departments of the Senate" on authority of S. Res. 280 of the 82d Congress, adopted Mar. 3, 1952.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1994—Pub. L. 103–437 substituted "Committee on Governmental Affairs of the Senate" for "Committee on Government Operations of the Senate".

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Subpart B—Employment and Retention

CHAPTER 31—AUTHORITY FOR EMPLOYMENT

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

        

        

        

SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE

        

SUBCHAPTER III—THE FEDERAL BUREAU OF INVESTIGATION AND DRUG ENFORCEMENT ADMINISTRATION SENIOR EXECUTIVE SERVICE

        

SUBCHAPTER IV—TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE ORDER

        

SUBCHAPTER V—PRESIDENTIAL INNOVATION FELLOWS PROGRAM

        

Editorial Notes

Amendments

2018—Pub. L. 115–232, div. A, title XI, §1108(b), Aug. 13, 2018, 132 Stat. 2009, added items 3115 and 3116.

2017—Pub. L. 115–1, §2(b), Jan. 20, 2017, 131 Stat. 5, added subchapter V heading and items 3171 and 3172.

2011—Pub. L. 112–81, div. A, title XI, §1109(b), Dec. 31, 2011, 125 Stat. 1615, added item 3111a.

2010—Pub. L. 111–203, title IX, §929G(b), July 21, 2010, 124 Stat. 1856, added item 3114 and struck out former item 3114 "Appointment of accountants, economists, and examiners by the Securities and Exchange Commission".

2003—Pub. L. 108–44, §2(b), July 3, 2003, 117 Stat. 843, added item 3114.

2000—Pub. L. 106–398, §1 [[div. A], title XI, §1101(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-310, added subchapter IV heading and item 3161.

1997—Pub. L. 105–61, title VI, §638(b), Oct. 10, 1997, 111 Stat. 1317, added item 3113.

1995—Pub. L. 104–66, title II, §2181(a)(2), Dec. 21, 1995, 109 Stat. 732, struck out item 3135 "Biennial report".

1988—Pub. L. 100–325, §1(b), May 30, 1988, 102 Stat. 581, added subchapter III heading and items 3151 and 3152.

1980—Pub. L. 96–523, §1(b), Dec. 12, 1980, 94 Stat. 3040, substituted "personal assistants for handicapped employees, including blind and" for "reading assistants for blind employees and interpreting assistants for" in item 3102.

1978—Pub. L. 95–454, title III, §§301(b), 302(b)(1), 307(b)(3), title IV, §402(c), Oct. 13, 1978, 92 Stat. 1145, 1146, 1148, 1160, added heading for subchapter I, substituted "reading assistants for blind employees and interpreting assistants for deaf employees" for "readers for blind employees" in item 3102, and added items 3111, 3112, heading for subchapter II, and items 3131 to 3136.

Pub. L. 95–251, §2(c)(2), Mar. 27, 1978, 92 Stat. 184, substituted "administrative law judges" for "hearing examiners" in item 3105.

1967—Pub. L. 90–206, title II, §221(b), Dec. 16, 1967, 81 Stat. 640, added item 3110.

¹ So in original. Does not conform to section catchline.

² So in original. Probably should be followed by a period.

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

Editorial Notes

Amendments

1979—Pub. L. 96–54, §2(a)(10), Aug. 14, 1979, 93 Stat. 381, added heading for subchapter I.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 414.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 43.	R.S. §169. June 26, 1930, ch. 618, 46 Stat. 817.
	5 U.S.C. 514d (2d par.).	Sept. 21, 1944, ch. 412, §709, 58 Stat. 743.

The authorization is restated to conform to the style of this title. The word "Executive agency" are substituted for "executive department, independent establishment" in view of the definitions in sections 103, 104, and 105. The source statute (an act to authorize the appointment of employees in the executive branch etc.) applied to the entire executive branch, and government corporations as well as other agencies in the executive branch were included within the words "independent establishment". The words "or a military department" are inserted to preserve the application of the source statute. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source statute for this subsection, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301. The words "for services in the District of Columbia or elsewhere" are eliminated as surplusage. The reference to chapter 51 is substituted for the reference to the Classification Act of 1923 because the Act of Oct. 28, 1949, ch. 782, §1106(a), 63 Stat. 972, amended the section to refer to the Classification Act of 1949, which is carried into this title. The proviso in former section 43 and former section 514d (2d par.) are omitted as superseded by former section 22a, which is carried into section 302. The last sentence of the Act of June 26, 1930, is omitted as executed.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Statutory Notes and Related Subsidiaries

Reports on Political Appointees Appointed to Nonpolitical Permanent Positions

Pub. L. 114–136, §4, Mar. 18, 2016, 130 Stat. 305, provided that:

"(a) Definitions.—In this section—

"(1) the term 'agency' has the meaning given the term 'Executive agency' in section 105 of title 5, United States Code;

"(2) the term 'covered civil service position' means a position in the civil service (as defined in section 2101 of title 5, United States Code) that is not—

"(A) a temporary position; or

"(B) a political position;

"(3) the term 'former political appointee' means an individual who—

"(A) is not serving in an appointment to a political position; and

"(B) served as a political appointee during the 5-year period ending on the date of the request for an appointment to a covered civil service position in any agency;

"(4) the term 'political appointee' means an individual serving in an appointment to a political position; and

"(5) the term 'political position' means—

"(A) a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule);

"(B) a noncareer appointment in the Senior Executive Service, as defined under paragraph (7) of section 3132(a) of title 5, United States Code; or

"(C) a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations.

"(b) Reporting on Current or Recent Political Appointees Appointed to Covered Civil Service Positions.—

"(1) Annual report.—Except as provided in paragraph (2), the Director of the Office of Personnel Management shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives an annual report regarding requests by agencies to appoint political appointees or former political appointees to covered civil service positions. Each report shall cover one calendar year and shall—

"(A) for each request by an agency that a political appointee be appointed to a covered civil service position during the period covered by the report, provide—

"(i) the date on which the request was received by the Office of Personnel Management;

"(ii) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

"(iii) the date on which the individual was first appointed to a political position in the agency in which the individual is serving as a political appointee;

"(iv) the grade and rate of basic pay for the individual as a political appointee;

"(v) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

"(vi) whether the Office of Personnel Management approved or denied the request; and

"(vii) the date on which the individual was appointed to a covered civil service position, if applicable; and

"(B) for each request by an agency that a former political appointee be appointed to a covered civil service position during the period covered by the report, provide—

"(i) the date on which the request was received by the Office of Personnel Management;

"(ii) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

"(iii) the date on which the individual was first appointed to any political position;

"(iv) the grade and rate of basic pay for the individual as a political appointee;

"(v) the date on which the individual ceased to serve in a political position;

"(vi) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

"(vii) whether the Office of Personnel Management approved or denied the request; and

"(viii) the date on which the individual was first appointed to a covered civil service position, if applicable.

"(2) Quarterly report in certain years.—In the last year of the term of a President, or, if applicable, the last year of the second consecutive term of a President, the report required under paragraph (1) shall be submitted quarterly and shall cover each quarter of the year, except that the last quarterly report shall also cover January 1 through 20 of the following year.

"(c) Names and Titles of Certain Appointees.—If determined appropriate by the Director of the Office of Personnel Management, a report submitted under subsection (b) may exclude the name or title of a political appointee or former political appointee—

"(1) who—

"(A) was requested to be appointed to a covered civil service position; and

"(B) was not appointed to a covered civil service position; or

"(2) relating to whom a request to be appointed to a covered civil service position is pending at the end of the period covered by that report."

Reduction of Federal Full-Time Equivalent Positions

Pub. L. 103–226, §5, Mar. 30, 1994, 108 Stat. 115, as amended by Pub. L. 103–329, title VI, §631, Sept. 30, 1994, 108 Stat. 2424; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814, provided that:

"(a) Definition.—For the purpose of this section, the term 'agency' means an Executive agency (as defined by section 105 of title 5, United States Code), but does not include the Government Accountability Office.

"(b) Limitations on Full-Time Equivalent Positions.—The President, through the Office of Management and Budget (in consultation with the Office of Personnel Management), shall ensure that the total number of full-time equivalent positions in all agencies shall not exceed—

"(1) 2,084,600 during fiscal year 1994;

"(2) 2,043,300 during fiscal year 1995;

"(3) 2,003,300 during fiscal year 1996;

"(4) 1,963,300 during fiscal year 1997;

"(5) 1,922,300 during fiscal year 1998; and

"(6) 1,882,300 during fiscal year 1999.

"(c) Monitoring and Notification.—The Office of Management and Budget, after consultation with the Office of Personnel Management, shall—

"(1) continuously monitor all agencies and make a determination on the first date of each quarter of each applicable fiscal year of whether the requirements under subsection (b) are met; and

"(2) notify the President and the Congress on the first date of each quarter of each applicable fiscal year of any determination that any requirement of subsection (b) is not met.

"(d) Compliance.—If, at any time during a fiscal year, the Office of Management and Budget notifies the President and the Congress that any requirement under subsection (b) is not met, no agency may hire any employee for any position in such agency until the Office of Management and Budget notifies the President and the Congress that the total number of full-time equivalent positions for all agencies equals or is less than the applicable number required under subsection (b).

"(e) Waiver.—

"(1) Emergencies.—Any provision of this section may be waived upon a determination by the President that—

"(A) the existence of a state of war or other national security concern so requires; or

"(B) the existence of an extraordinary emergency threatening life, health, safety, property, or the environment so requires.

"(2) Agency efficiency or critical mission.—

"(A) Subsection (d) may be waived, in the case of a particular position or category of positions in an agency, upon a determination of the President that the efficiency of the agency or the performance of a critical agency mission so requires.

"(B) Whenever the President grants a waiver pursuant to subparagraph (A), the President shall take all necessary actions to ensure that the overall limitations set forth in subsection (b) are not exceeded.

"(f) Employment Backfill Prevention.—

"(1) In general.—The total number of funded employee positions in all agencies (excluding the Department of Defense and the Central Intelligence Agency) shall be reduced by one position for each vacancy created by the separation of any employee who has received, or is due to receive, a voluntary separation incentive payment under section 3(a)–(e) [5 U.S.C. 5597 note]. For purposes of this subsection, positions and vacancies shall be counted on a full-time-equivalent basis.

"(2) Related restriction.—No funds budgeted for and appropriated by any Act for salaries or expenses of positions eliminated under this subsection may be used for any purpose other than authorized separation costs.

"(3) Applicability of backfill prevention provisions to agencies otherwise exempted from fte reduction.—

"(A) In general.—If any agency is otherwise exempted by any law from the limitations on full-time equivalent positions or the restrictions on hiring established by this section—

"(i) paragraph (1) shall apply to vacancies created in such agency; and

"(ii) the reductions required pursuant to clause (i) shall be made in the number of funded employee positions in such agency.

"(B) Waiver authority.—In the case of a particular position in an agency, subparagraph (A) may be waived upon a determination by the head of the agency that the performance of a critical agency mission requires the waiver.

"(C) Relation to other law.—No law may be construed as suspending or modifying this paragraph unless such law specifically amends this paragraph.

"(g) Limitation on Procurement of Service Contracts.—The President shall take appropriate action to ensure that there is no increase in the procurement of service contracts by reason of the enactment of this Act [see Tables for classification], except in cases in which a cost comparison demonstrates such contracts would be to the financial advantage of the Federal Government."

Limitation on Number of Civilian Employees in Executive Branch

Pub. L. 95–454, title III, §311, Oct. 13, 1978, 92 Stat. 1153, which provided that the total number of civilian employees in the executive branch, on Sept. 30, 1979, on Sept. 30, 1980, and Sept. 30, 1981, shall not exceed the number of such employees on Sept. 30, 1977, terminated by its own terms on Jan. 31, 1981.

Pub. L. 91–47, title V, §503, July 22, 1969, 83 Stat. 83, repealed section 201 of Pub. L. 90–364, title II, June 28, 1968, 82 Stat. 270, which provided for limitation on the number of civilian officers and employees in the executive branch and which was formerly set out under this section.

Citizenship Requirement for Employees Compensated From Appropriated Funds

Pub. L. 118–47, div. B, title VII, §704, Mar. 23, 2024, 138 Stat. 573, provided that: "Unless otherwise specified in law during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); (3) is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; or (4) is a person who owes allegiance to the United States: Provided, That for purposes of this section, affidavits signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his or her status are being complied with: Provided further, That for purposes of paragraphs (2) and (3) such affidavits shall be submitted prior to employment and updated thereafter as necessary: Provided further, That any person making a false affidavit shall be guilty of a felony, and upon conviction, shall be fined no more than $4,000 or imprisoned for not more than 1 year, or both: Provided further, That the above penal clause shall be in addition to, and not in substitution for, any other provisions of existing law: Provided further, That any payment made to any officer or employee contrary to the provisions of this section shall be recoverable in action by the Federal Government: Provided further, That this section shall not apply to any person who is an officer or employee of the Government of the United States on the date of enactment of this Act [Mar. 23, 2024], or to international broadcasters employed by the Broadcasting Board of Governors [now the United States Agency for Global Media], or to temporary employment of translators, or to temporary employment in the field service (not to exceed 60 days) as a result of emergencies: Provided further, That this section does not apply to the employment as Wildland firefighters for not more than 120 days of nonresident aliens employed by the Department of the Interior or the USDA Forest Service pursuant to an agreement with another country."

Similar provisions to those in the Citizenship Requirement for Employees Compensated From Appropriated Funds note above were contained in the following prior appropriation acts:

Pub. L. 117–328, div. E, title VII, §704, Dec. 29, 2022, 136 Stat. 4705.

Pub. L. 117–103, div. E, title VII, §704, Mar. 15, 2022, 136 Stat. 293.

Pub. L. 116–260, div. E, title VII, §704, Dec. 27, 2020, 134 Stat. 1430.

Pub. L. 116–93, div. C, title VII, §704, Dec. 20, 2019, 133 Stat. 2484.

Pub. L. 116–6, div. D, title VII, §704, Feb. 15, 2019, 133 Stat. 187.

Pub. L. 115–141, div. E, title VII, §704, Mar. 23, 2018, 132 Stat. 588.

Pub. L. 115–31, div. E, title VII, §704, May 5, 2017, 131 Stat. 377.

Pub. L. 114–113, div. E, title VII, §704, Dec. 18, 2015, 129 Stat. 2473.

Pub. L. 113–235, div. E, title VII, §§704, 750, Dec. 16, 2014, 128 Stat. 2379, 2392.

Pub. L. 113–76, div. E, title VII, §§704, 744, Jan. 17, 2014, 128 Stat. 231, 243.

Pub. L. 112–74, div. C, title VII, §704, Dec. 23, 2011, 125 Stat. 929.

Pub. L. 111–117, div. C, title VII, §704, Dec. 16, 2009, 123 Stat. 3205.

Pub. L. 111–8, div. D, title VII, §704, Mar. 11, 2009, 123 Stat. 680.

Pub. L. 110–161, div. D, title VII, §705, Dec. 26, 2007, 121 Stat. 2019.

Pub. L. 109–115, div. A, title VIII, §805, Nov. 30, 2005, 119 Stat. 2496.

Pub. L. 108–447, div. H, title VI, §605, Dec. 8, 2004, 118 Stat. 3273.

Pub. L. 108–199, div. F, title VI, §605, Jan. 23, 2004, 118 Stat. 350.

Pub. L. 108–7, div. J, title VI, §605, Feb. 20, 2003, 117 Stat. 464.

Pub. L. 107–67, title VI, §605, Nov. 12, 2001, 115 Stat. 545, as amended by Pub. L. 108–188, title I, §110, Dec. 17, 2003, 117 Stat. 2757.

Pub. L. 106–554, §1(a)(3) [title VI, §605], Dec. 21, 2000, 114 Stat. 2763, 2763A-155.

Pub. L. 106–58, title VI, §605, Sept. 29, 1999, 113 Stat. 466.

Pub. L. 105–277, div. A, §101(h) [title VI, §606], Oct. 21, 1998, 112 Stat. 2681–480, 2681-513.

Pub. L. 105–61, title VI, §606, Oct. 10, 1997, 111 Stat. 1309.

Pub. L. 104–208, div. A, title I, §101(f) [title VI, §606], Sept. 30, 1996, 110 Stat. 3009–314, 3009-354.

Pub. L. 104–52, title VI, §606, Nov. 19, 1995, 109 Stat. 497.

Pub. L. 103–329, title VI, §606, Sept. 30, 1994, 108 Stat. 2416.

Pub. L. 103–123, title VI, §606, Oct. 28, 1993, 107 Stat. 1259.

Pub. L. 102–393, title VI, §607, Oct. 6, 1992, 106 Stat. 1766.

Pub. L. 102–141, title VI, §607, Oct. 28, 1991, 105 Stat. 868.

Pub. L. 101–509, title VI, §603, Nov. 5, 1990, 104 Stat. 1471.

Pub. L. 101–136, title VI, §603, Nov. 3, 1989, 103 Stat. 816.

Pub. L. 100–440, title VI, §603, Sept. 22, 1988, 102 Stat. 1751.

Pub. L. 100–202, §101(m) [title VI, §603], Dec. 22, 1987, 101 Stat. 1329–390, 1329-419.

Pub. L. 99–500, §101(m) [title VI, §603], Oct. 18, 1986, 100 Stat. 1783–308, 1783-328, and Pub. L. 99–591, §101(m) [title VI, §603], Oct. 30, 1986, 100 Stat. 3341–308, 3341-328.

Pub. L. 99–190, title I, §101(h) [H.R. 3036, title VI, §603], Dec. 19, 1985, 99 Stat. 1291.

Pub. L. 98–473, title I, §101(j) [H.R. 5798, title VI, §604], Oct. 12, 1984, 98 Stat. 1963.

Pub. L. 98–151, §101(f) [H.R. 4139, title VI, §603], Nov. 14, 1983, 97 Stat. 973.

Pub. L. 97–377, title I, §101(a) [incorporating H.R. 4121, title VI, §603, for FY 1982], Dec. 21, 1982, 96 Stat. 1830.

Pub. L. 97–92, §101(a) [H.R. 4121, title VI, §603], Dec. 15, 1981, 95 Stat. 1183.

Pub. L. 96–536, §101(a) [incorporating Pub. L. 96–74, title VI, §602], Dec. 16, 1980, 94 Stat. 3166.

Pub. L. 96–74, title VI, §602, Sept. 29, 1979, 93 Stat. 574.

Pub. L. 95–429, title VI, §602, Oct. 10, 1978, 92 Stat. 1015.

Pub. L. 95–81, title VI, §602, July 31, 1977, 91 Stat. 354.

Pub. L. 94–419, title VII, §750, Sept. 22, 1976, 90 Stat. 1299.

Pub. L. 94–363, title VI, §602, July 14, 1976, 90 Stat. 977.

Pub. L. 94–212, title VII, §753, Feb. 9, 1976, 90 Stat. 177.

Pub. L. 94–91, title VI, §602, Aug. 9, 1975, 89 Stat. 458.

Pub. L. 93–381, title VI, §602, Aug. 21, 1974, 88 Stat. 630.

Pub. L. 93–143, title VI, §602, Oct. 30, 1973, 87 Stat. 524.

Pub. L. 92–351, title VI, §602, July 13, 1972, 86 Stat. 487.

Pub. L. 92–49, title VI, §602, July 9, 1971, 85 Stat. 122.

Pub. L. 91–439, title V, §502, Oct. 7, 1970, 84 Stat. 902.

Pub. L. 91–144, title V, §502, Dec. 11, 1969, 83 Stat. 336.

Pub. L. 90–479, title V, §502, Aug. 12, 1968, 82 Stat. 717.

Pub. L. 90–147, title V, §502, Nov. 20, 1967, 81 Stat. 483.

Pub. L. 89–689, title V, §502, Oct. 15, 1966, 80 Stat. 1014.

Pub. L. 89–299, title V, §502, Oct. 28, 1965, 79 Stat. 1108.

Pub. L. 88–511, title V, §502, Aug. 30, 1964, 78 Stat. 693.

Pub. L. 88–257, title V, §502, Dec. 31, 1963, 77 Stat. 855.

Pub. L. 87–880, title V, §502, Oct. 24, 1962, 76 Stat. 1227.

Pub. L. 87–125, title V, §502, Aug. 3, 1961, 75 Stat. 282.

Pub. L. 86–642, title II, §202, July 12, 1960, 74 Stat. 476.

Pub. L. 86–79, title II, §202, July 8, 1959, 73 Stat. 165.

Pub. L. 85–468, title II, §202, June 25, 1958, 72 Stat. 224.

Pub. L. 85–48, title II, §202, June 5, 1957, 71 Stat. 53.

June 13, 1956, ch. 385, title II, §202, 70 Stat. 280.

June 29, 1955, ch. 226, title II, §202, 69 Stat. 195.

Aug. 26, 1954, ch. 935, Ch. XIII, §1302, 68 Stat. 828.

Aug. 7, 1953, ch. 340, Ch. XIII, §1302, 67 Stat. 435.

July 15, 1952, ch. 758, Ch. XIV, §1402, 66 Stat. 659.

Nov. 1, 1951, ch. 664, Ch. XIII, §1302, 65 Stat. 755.

Sept. 6, 1950, ch. 897, Ch. XII, §1202, 64 Stat. 763.

Aug. 24, 1949, ch. 506, title III, §302, 63 Stat. 661.

Apr. 20, 1948, ch. 219, title II, §202, 62 Stat. 193.

July 30, 1947, ch. 359, title II, §202, 61 Stat. 608.

Mar. 28, 1946, ch. 113, title II, §206, 60 Stat. 80.

May 3, 1945, ch. 106, title II, §206, 59 Stat. 132.

June 27, 1944, ch. 286, title II, §205, 58 Stat. 385.

June 26, 1943, ch. 145, title II, §205, 57 Stat. 196.

Citizenship requirement for permanent officers and employees of Census Bureau, see section 22 of Title 13, Census.

Exceptions to citizenship requirement for—

Department of Defense personnel, see section 1584 of Title 10, Armed Forces.

Department of State employees, see sections 2669, 2672 of Title 22, Foreign Relations and Intercourse.

Department of the Navy personnel, see section 7473 of Title 10.

Library of Congress positions, see section 169 of Title 2, The Congress.

National Aeronautics and Space Administration employees, see section 20113 of Title 51, National and Commercial Space Programs.

Employment of Personnel During National Emergency Proclaimed on Dec. 16, 1950

Section 1310 of act Nov. 1, 1951, ch. 664, Ch. XIII, 65 Stat. 757, as amended June 5, 1952, ch. 369, Ch. XIII, §1302, 66 Stat. 122; Sept. 1, 1954, ch. 1208, title VI, §602, 68 Stat. 1115; Oct. 11, 1962, Pub. L. 87–793, §717(b), 76 Stat. 858; Aug. 6, 1965, Pub. L. 89–114, 79 Stat. 448; Oct. 11, 1967, Pub. L. 90–105, §3, 81 Stat. 274; Apr. 21, 1976, Pub. L. 94–273, §4(5), 90 Stat. 377, provided that, upon the enactment of this Act [Nov. 1, 1951] and until termination of the national emergency proclaimed by the President on Dec. 16, 1950, agencies shall use their authority to require initial appointment be made on other than a permanent basis to limit the number of permanent employees, the Civil Service Commission facilitate the transfer of Federal employees from nondefense to defense activities with reemployment rights and make use of its authority to prohibit excessively rapid promotions, and agencies review certain positions annually and report to Congressional committees. All powers and authorities under section 1310 of act Nov. 1, 1951, as amended, terminated 2 years from Sept. 14, 1976, pursuant to Pub. L. 94–412, title I, §101, Sept. 14, 1976, 90 Stat. 1255 (50 U.S.C. 1601).

Executive Documents

Ex. Ord. No. 12839. Reduction of 100,000 Federal Positions

Ex. Ord. No. 12839, Feb. 10, 1993, 58 F.R. 8515, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, section 3301 of title 5, United States Code, and section 1111 of title 31, United States Code, it is hereby ordered as follows:

Section 1. Limits on Hiring Civilian Personnel. Each executive department or agency with over 100 employees shall eliminate not less than 4 percent of its civilian personnel positions (measured on a full-time equivalent (FTE) basis) over the next 3 fiscal years. The positions shall be vacated through attrition or early out programs established at the discretion of the department and agency heads. At least 10 percent of the reductions shall come from the Senior Executive Service, GS–15 and GS–14 levels or equivalent.

Sec. 2. Coverage. This order applies to all executive branch departments and agencies with over 100 employees (measured on a FTE basis).

Sec. 3. Target Dates. Each department and agency shall achieve 25 percent of its total reductions by the end of fiscal year 1993, 62.5 percent by the end of fiscal year 1994, and 100 percent by the end of fiscal year 1995.

Sec. 4. Implementation. The Director of the Office of Management and Budget shall issue detailed instructions regarding the implementation of this order, including exemptions necessary for the delivery of essential services and compliance with applicable law.

Sec. 5. Independent Agencies. All independent regulatory commissions and agencies are requested to comply with the provisions of this order.

William J. Clinton.      

Freeze on Hiring of Federal Civilian Employees

Memorandum of the President of the United States, dated Jan. 20, 1981, 46 F.R. 9907, provided for a freeze on the hiring of Federal civilian employees in the executive branch.

§3102. Employment of personal assistants for handicapped employees, including blind and deaf employees

(a) For the purpose of this section—

(1) "agency" means—

(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); ¹ 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 1986 (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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 414; Pub. L. 90–623, §1(3), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95–454, title III, §302(a), (b)(2), Oct. 13, 1978, 92 Stat. 1145, 1146; Pub. L. 96–54, §2(a)(11), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–523, §1(a), Dec. 12, 1980, 94 Stat. 3039; Pub. L. 97–258, §3(a)(3), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 106–518, title III, §311, Nov. 13, 2000, 114 Stat. 2421; Pub. L. 106–553, §1(a)(2) [title III, §307], Dec. 21, 2000, 114 Stat. 2762, 2762A-86.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 43a.	Aug. 29, 1962, Pub. L. 87–614, 76 Stat. 408.

In subsection (a)(1), the word "agency" is substituted for "department". The words "Executive agency" are coextensive with and substituted for "each executive department of the Federal Government, each agency or independent establishment in the executive branch of such Government, each corporation wholly owned or controlled by such Government, and the General Accounting Office" in view of the definition of "Executive agency" in section 105.

In subsection (a)(3), the words "individual employed" are substituted for "employee" so as to include individuals employed by the government of the District of Columbia who are not employees as defined by section 2105.

In subsection (b), the word "may" is substituted for "is authorized" and the words "in his discretion" are omitted as unnecessary in view of the permissive nature of the authority. The words "in the provisions of this title governing appointment in the competitive service" are substituted for "the civil service rules". The words "section 209 of title 18" are substituted for "section 1914 of title 18" on authority of the Act of Oct. 24, 1962, Pub. L. 87–849, §2, 76 Stat. 1126.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2000—Subsec. (a)(1)(C). Pub. L. 106–518 and Pub. L. 106–553 amended par. (1) identically, adding subpar. (C).

1986—Subsec. (a)(3). Pub. L. 99–514 substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954".

1982—Subsec. (b)(1)(C). Pub. L. 97–258 substituted "section 1342 of title 31" for "section 3679(b) of the Revised Statutes (31 U.S.C. 665(b))".

1980—Pub. L. 96–523 amended section generally and, among other changes, in section catchline substituted "personal assistants for handicapped employees, including blind and" for "reading assistants for blind employees and interpreting assistants for", in subsec. (a) substituted applicability to handicapped employees for applicability to blind and deaf employees omitted applicability to the government of the District of Columbia, in subsec. (b) substituted applicability to personal assistants for applicability to reading and interpreting assistants for blind and deaf employees, respectively, redesignated former subsec. (d) as (c) and made changes in phraseology, added subsec. (d), and redesignated former subsec. (c) as (e) and made changes in phraseology.

1979—Subsec. (a)(2). Pub. L. 96–54 substituted "Mayor" for "Commissioner".

1978—Pub. L. 95–454, §302(b)(2), substituted "reading assistants for blind employees and interpreting assistants for deaf employees" for "readers for blind employees" in section catchline.

Subsec. (a)(4), (5). Pub. L. 95–454, §302(a)(1), added par. (4) and redesignated former par. (4) as (5).

Subsec. (b). Pub. L. 95–454, §302(a)(2), inserted provisions respecting applicability to employment and compensation for interpreting assistant or assistants for deaf employees.

Subsec. (c). Pub. L. 95–454, §302(a)(3), inserted "or deaf" after "blind".

Subsec. (d). Pub. L. 95–454, §302(a)(4), added subsec. (d).

1968—Subsec. (a)(2). Pub. L. 90–623 substituted "Commissioner" for "Board of Commissioners".

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Pub. L. 96–523, §3, Dec. 12, 1980, 94 Stat. 3040, provided that: "The amendments made by this Act [amending this section, section 7 of the Federal Advisory Committee Act, formerly set out in the Appendix to this title, section 604 of Title 28, Judiciary and Judicial Procedure, and section 410 of Title 39, Postal Service] shall take effect sixty days after the date of the enactment of this Act [Dec. 12, 1980]."

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

¹ So in original. Probably should be "(29 U.S.C. 791);".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 46.	Aug. 5, 1882, ch. 389, §4 (less 255th through 316th words), 22 Stat. 255. Sept. 23, 1950, ch. 1010, §7, 64 Stat. 986.
	5 U.S.C. 47 (so much as relates to removal).	Aug. 23, 1912, ch. 350, §5 (so much as relates to removal), 37 Stat. 414.

The words "civil officer, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee" are omitted as obsolete language and "individual" is substituted therefor. The words "in the civil service" are added to preserve the application of former section 46 to civilian employees. The words "or subordinate bureaus or offices thereof" are omitted as surplusage. The words "and at the rate of pay usual and proper for the services" are omitted as surplusage since all pay rates are governed by statute.

All after the 75th words of section 4 of the Act of Aug. 5, 1882, as amended by section 7(b) of the Act of Sept. 23, 1950, except the 255th through 316th words, are omitted as executed. The 255th through 296th words are scheduled for repeal as superseded (see Table II–b), and the 297th through 316th words are codified in section 5501. The Act of Aug. 15, 1876, ch. 287, §5, 19 Stat. 169, cited as authority for former section 46 was repealed by section 7(a) of the Act of Sept. 23, 1950.

In the last sentence, the word "removed" is substituted for "summarily removed" because of the provisions of the Lloyd-LaFollette Act, 37 Stat. 555, as amended, and the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, which are carried into this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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 and publishes in such form as the Director may determine (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 subsection (a) of this section, 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415; Pub. L. 90–83, §1(7), Sept. 11, 1967, 81 Stat. 196; Pub. L. 91–375, §6(c)(5), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–454, title IV, §414(a)(2)(B), (C), title VIII, §801(a)(3)(C), Oct. 13, 1978, 92 Stat. 1178, 1221; Pub. L. 99–386, title I, §101(b), Aug. 22, 1986, 100 Stat. 821; Pub. L. 102–378, §2(7), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 110–372, §2(c)(1), Oct. 8, 2008, 122 Stat. 4044.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 1161 (less 2d sentence of (g)).	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 1", 75 Stat. 789. Oct. 11, 1962, Pub. L. 87–793, §1001(a)(2) "(g) (less 2d sentence)", 76 Stat. 863.
(b)	5 U.S.C. 1162(c).	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 2(c)", 75 Stat. 790.
(c)	5 U.S.C. 1163.	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 3", 75 Stat. 790.

In subsection (a), the authority to fix pay is omitted and carried into section 5361.

In subsection (b), the words "subsequent to February 1, 1958" appearing in former section 1162(c) are omitted as obsolete.

The Act of Aug. 1, 1947, ch. 433, 61 Stat. 715, as amended by the following Acts is omitted from the derivation and repealed (see Table II) as superseded by the Act of Oct. 4, 1961, Pub. L. 87–367, §202, 75 Stat. 789, which is carried into this section and sections 3325 and 5361:

June 24, 1948, ch. 624, 62 Stat. 604.

July 13, 1949, ch. 332, 63 Stat. 410.

July 31, 1956, ch. 804 §501(a), 70 Stat. 761.

Aug. 10, 1956, ch. 1041, §28, 70A Stat. 631.

June 20, 1958, Pub. L. 85–462, §12(a)–(d), 72 Stat. 213A.

Sept. 23, 1959, Pub. L. 86–370, §4, 73 Stat. 651.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
3104(a)(5)	5 App.: 1161(e).	July 5, 1966, Pub. L. 89–492 §5, 80 Stat. 262.

The amendment to 5 U.S.C. 3104(a)(5) reflects Public Law 89–492, section 5.

The other amendments to 5 U.S.C. 3104 are based on section 302 of the act of July 20, 1958, Public Law 85–568 (72 Stat. 433), 42 U.S.C. 2453, and transfer plan, effective March 15, 1960, 25 Federal Register 2151, section (2)(a)(2), (b) of which in effect transferred from the Department of Defense to the National Aeronautics and Space Administration 12 of the 450 scientific and professional positions authorized by section 2 of Public Law 86–377 (10 U.S.C. 1581). Provisions relating to the date for reporting to Congress are based on 10 U.S.C. 1582.

Editorial Notes

References in Text

The General Schedule, referred to in subsec. (a), is set out under section 5332 of this title.

Amendments

2008—Subsec. (a). Pub. L. 110–372 substituted "prescribes and publishes in such form as the Director may determine" for "prescribes".

1992—Subsec. (a). Pub. L. 102–378 struck out "(not to exceed 517)" after "positions" in first sentence and amended second sentence generally, substituting provisions authorizing establishment of positions by Director and by agency action for provisions specifying that only Director may establish positions.

1986—Pub. L. 99–386 struck out subsec. (b) relating to reports to Congress, redesignated pars. (1), (2), and (3) of subsec. (a) as subsecs. (a), (b), and (c), respectively, and substituted "subsection (a) of this section" for "paragraph (1) of this subsection" wherever appearing in subsecs. (b) and (c) as redesignated.

1978—Subsec. (a). Pub. L. 95–454, §414(a)(2)(B), substituted provisions authorizing the Director to establish the maximum number of scientific or professional positions, excepting Senior Executive Service positions, and authorizing the Librarian to establish not more than 8 such positions for provisions authorizing the head of certain named agencies to establish a specified number of scientific or professional positions.

Subsec. (b). Pub. L. 95–454, §414(a)(2)(B), (C), struck out subsec. (b), redesignated subsec. (c) as (b), and substituted in subsec. (b), as redesignated, "to fix under section 5361 of this title the pay for positions established under this section" for "to establish and fix the pay of positions under this section and section 5361 of this title".

Pub. L. 95–454, §801(a)(3)(C), substituted in subsec. (b), as redesignated, "section 5371 of this title" for "section 5361 of this title".

Subsec. (c). Pub. L. 95–454, §414(a)(2)(C)(i), redesignated subsec. (c) as (b).

1970—Subsec. (a)(5). Pub. L. 91–375 repealed provision for employment in Post Office Department in scientific or professional positions of not more than 6 qualified individuals.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1978 Amendment

Amendment by section 801(a)(3)(C) of Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.

Amendment by section 414(a)(2)(B), (C) of Pub. L. 95–454 effective 180 days after Oct. 13, 1978, see section 415(a)(3) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Retention Pay for Employees Subject to a Reduction in Pay Upon Termination of Bureau's Personnel Management Demonstration Project

Pub. L. 114–113, div. B, title II, §206, Dec. 18, 2015, 129 Stat. 2312, provided that: "Funds appropriated by this or any other Act, with respect to any fiscal year, under the heading 'Bureau of Alcohol, Tobacco, Firearms and Explosives, Salaries and Expenses' shall be available for retention pay for any employee who would otherwise be subject to a reduction in pay upon termination of the Bureau's Personnel Management Demonstration Project (as transferred to the Attorney General by section 1115 of the Homeland Security Act of 2002, Public Law 107–296 (28 U.S.C. 599B)): Provided, That such retention pay shall comply with section 5363 of title 5, United States Code, and related Office of Personnel Management regulations, except as provided in this section: Provided further, That such retention pay shall be paid at the employee's rate of pay immediately prior to the termination of the demonstration project and shall not be subject to the limitation set forth in section 5304(g)(1) of title 5, United States Code, and related regulations."

Experimental Personnel Program for Scientific and Technical Personnel

Pub. L. 105–261, div. A, title XI, §1101, Oct. 17, 1998, 112 Stat. 2139, as amended by Pub. L. 106–65, div. A, title X, §1067(3), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106–398, §1 [[div. A] title X, §1087(d)(6), title XI, §1113], Oct. 30, 2000, 114 Stat. 1654, 1654A-293, 1654A-314; Pub. L. 108–136, div. A, title IX, §921(g), title XI, §1116, Nov. 24, 2003, 117 Stat. 1570, 1636; Pub. L. 109–364, div. A, title XI, §1103, Oct. 17, 2006, 120 Stat. 2408; Pub. L. 110–181, div. A, title XI, §1108, Jan. 28, 2008, 122 Stat. 358; Pub. L. 111–84, div. A, title XI, §1104, Oct. 28, 2009, 123 Stat. 2485; Pub. L. 112–81, div. A, title XI, §1110, Dec. 31, 2011, 125 Stat. 1615; Pub. L. 112–239, div. A, title X, §1076(c)(2)(A)(vi), title XI, §1102(a), Jan. 2, 2013, 126 Stat. 1950, 1973; Pub. L. 113–291, div. A, title XI, §1104, Dec. 19, 2014, 128 Stat. 3525; Pub. L. 114–92, div. A, title X, §§1075(b), 1081(b)(5), Nov. 25, 2015, 129 Stat. 997, 1001, allowed Secretary of Defense, from Oct. 17, 1998, to Sept. 30, 2019, to carry out a program of experimental use of special personnel management authority to facilitate recruitment of eminent experts in science or engineering for certain research and development projects, prior to repeal by Pub. L. 114–328, div. A, title XI, §1121(b), Dec. 23, 2016, 130 Stat. 2452. See section 4092 of Title 10, Armed Forces.

FBI Personnel Management System for Non-Special Agent Employees; Secretary of the Treasury

Pub. L. 113–235, div. B, title II, §206, Dec. 16, 2014, 128 Stat. 2197, provided that: "The Attorney General is authorized to extend through September 30, 2015, the Personnel Management Demonstration Project transferred to the Attorney General pursuant to [former] section 1115 of the Homeland Security Act of 2002 (Public Law 107–296; 28 U.S.C. 599B) without limitation on the number of employees or the positions covered."

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 113–76, div. B, title II, §206, Jan. 17, 2014, 128 Stat. 67.

Pub. L. 113–6, div. B, title II, §206, Mar. 26, 2013, 127 Stat. 257.

Pub. L. 112–55, div. B, title II, §206, Nov. 18, 2011, 125 Stat. 619.

Pub. L. 111–117, div. B, title II, §206, Dec. 16, 2009, 123 Stat. 3139.

Pub. L. 111–8, div. B, title II, §206, Mar. 11, 2009, 123 Stat. 585.

Pub. L. 110–161, div. B, title II, §206, Dec. 26, 2007, 121 Stat. 1913.

Pub. L. 109–108, title I, §106, Nov. 22, 2005, 119 Stat. 2304.

Pub. L. 108–447, div. B, title I, §109, Dec. 8, 2004, 118 Stat. 2868.

Pub. L. 105–119, title I, §122, Nov. 26, 1997, 111 Stat. 2469, as amended by Pub. L. 105–277, div. C, title I, §102, Oct. 21, 1998, 112 Stat. 2681–585; Pub. L. 107–67, title I, §120, Nov. 12, 2001, 115 Stat. 525; Pub. L. 108–7, div. J, title I, §119, Feb. 20, 2003, 117 Stat. 439; Pub. L. 108–199, div. F, title II, §216, Jan. 23, 2004, 118 Stat. 320; Pub. L. 108–447, div. H, title II, §216, Dec. 8, 2004, 118 Stat. 3241; Pub. L. 109–115, div. A, title II, §216, Nov. 30, 2005, 119 Stat. 2439; Pub. L. 110–161, div. D, title I, §115, Dec. 26, 2007, 121 Stat. 1978; Pub. L. 111–8, div. D, title I, §113, Mar. 11, 2009, 123 Stat. 637; Pub. L. 111–117, div. C, title I, §113, Dec. 16, 2009, 123 Stat. 3166; Pub. L. 112–74, div. C, title I, §111, Dec. 23, 2011, 125 Stat. 890, provided that during 3-year period beginning on Nov. 26, 1997, Director of the Federal Bureau of Investigation could, with approval of Attorney General, establish personnel management system providing for compensation and performance management of not more than 3,000 non-Special Agent employees to fill critical scientific, technical, engineering, intelligence analyst, language translator, and medical positions in Federal Bureau of Investigation, further authorized Secretary of the Treasury to establish, for period of 14 years from Oct. 21, 1998, personnel management demonstration project providing for compensation and performance management of not more than combined total of 950 employees who fill critical scientific, technical, engineering, intelligence analyst, language translator, and medical positions in Bureau of Alcohol, Tobacco and Firearms, and further provided for submittal of reports to Congress and termination of authority to establish demonstration project on Nov. 26, 2000.

[Personnel management demonstration project transferred to Attorney General for continued use by Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and Secretary of the Treasury for continued use by Tax and Trade Bureau, see section 599B of Title 28, Judiciary and Judicial Procedure.]

Termination of Authority To Establish Scientific or Professional Positions Outside the General Schedule

Pub. L. 95–454, title IV, §414(a)(2)(A), Oct. 13, 1978, 92 Stat. 1177, provided that: "Notwithstanding any other provision of law (other than section 3104 of title 5, United States Code), the authority granted to an agency (as defined in section 5102(a)(1) of such title 5) to establish scientific or professional positions outside of the General Schedule is hereby terminated."

Pub. L. 95–454, title IV, §415(a)(3), Oct. 13, 1978, 92 Stat. 1179, provided that the provisions of section 414(a)(2)(A) take effect 180 days after Oct. 13, 1978.

Limitations on Executive Positions Not To Apply to Individuals Occupying Those Positions on October 12, 1978

Pub. L. 95–454, title IV, §414(a)(3), Oct. 13, 1978, 92 Stat. 1178, provided that:

"(A) The provisions of paragraphs (1) and (2) of this subsection [amending sections 3104 and 5108 of this title] shall not apply with respect to any position so long as the individual occupying such position on the day before the date of the enactment of this Act [Oct. 13, 1978] continues to occupy such position.

"(B) The Director—

"(i) in establishing under section 5108 of title 5, United States Code, the maximum number of positions which may be placed in GS–16, 17, and 18 of the General Schedule, and

"(ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established,

shall take into account positions to which subparagraph (A) of this paragraph applies."

[Pub. L. 95–454, title IV, §415(a)(3), Oct. 13, 1978, 92 Stat. 1179, provided that the provisions of section 414(a)(3) are effective 180 days after Oct. 13, 1978.]

[References in laws to rates of pay for GS–16, 17, or 18, or to maximum rates of pay under General Schedule, to be considered references to rates payable under specified sections of this title, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of this title.]

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415; Pub. L. 95–251, §2(a)(1), (b)(2), (d)(1), Mar. 27, 1978, 92 Stat. 183, 184.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1010 (1st sentence).	June 11, 1946, ch. 324, §11 (1st sentence), 60 Stat. 244.

The words "Subject to the civil service" are omitted as unnecessary inasmuch as appointments are made subject to the civil service laws unless specifically excepted. The words "and other laws not inconsistent with this chapter" are omitted as unnecessary because of the organization of this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–251 substituted references to administrative law judges for references to hearing examiners in section catchline and wherever appearing in text.

Statutory Notes and Related Subsidiaries

Hearing Examiners Appointed for Indian Probate Work

Hearing examiners appointed for Indian probate work pursuant to former section 372–1 of Title 25, Indians, having met qualifications required for appointment pursuant to this section, deemed to have been appointed pursuant to this section, see section 12(b) of Pub. L. 101–301, set out as a Savings Provision note under former section 372–1 of Title 25.

References to Hearing Examiner Deemed References to Administrative Law Judge

Pub. L. 95–251, §3, Mar. 27, 1978, 92 Stat. 184, provided that: "Any reference in any law, regulation, or order to a hearing examiner appointed under section 3105 of title 5, United States Code, shall be deemed to be a reference to an administrative law judge."

Executive Documents

Hearing Examiners Employed by Department of Agriculture

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Agriculture not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, §1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Commerce

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Commerce not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Commerce by 1950 Reorg. Plan No. 5, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the Interior

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of the Interior not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Interior by 1950 Reorg. Plan No. 3, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, transferred set out in the Appendix to this title.

Hearing Examiners Employed by Department of Justice

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Justice not included in functions of officers, agencies, and employees of that Department transferred to Attorney General by 1950 Reorg. Plan No. 2, §1, eff. May 24, 1950, 15 F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.

Hearing Examiners Employed by Department of Labor

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of Labor not included in functions of officers, agencies, and employees of Department transferred to Secretary of Labor by 1950 Reorg. Plan No. 6, §1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the Treasury

Functions vested by section 551 et seq. of this title in hearing examiners employed by Department of the Treasury not included in functions of officers, agencies, and employees of Department transferred to Secretary of the Treasury by 1950 Reorg. Plan No. 26, §1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 49.	R.S. §189. Sept. 2, 1958, Pub. L. 85–861, §7(a), 72 Stat. 1555.
	5 U.S.C. 314.	R.S. §365. Sept. 2, 1958, Pub. L. 85–861, §7(b), 72 Stat. 1555.

Sections 189 and 365 of the Revised Statutes, as amended, are combined and the section is revised to express the effect of the law since department heads have long employed, with the approval of Congress, attorneys to advise them in the conduct of their official duties. The law which concentrates the authority for the conduct of litigation in the Department of Justice is codified in section 516 of title 28 by this bill.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to R.S. §189 is coextensive with the definition of "Executive department" in section 101. The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

R.S. §189 was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 1, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§3107. Employment of publicity experts; restrictions

Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 416.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 54.	Oct. 22, 1913, ch. 32, §1 (last par. under "Interstate Commerce Commission"), 38 Stat. 212.

The prohibition is restated in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89– 554, Sept. 6, 1966, 80 Stat. 416.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 53.	Mar. 3, 1893, ch. 208 (5th par. under "Public Buildings"), 27 Stat. 591.

The prohibition is restated in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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 6101(b) to (d) 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 416; Pub. L. 95–454, title IV, §402(b), Oct. 13, 1978, 92 Stat. 1160; Pub. L. 97–258, §3(a)(4), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 100–325, §2(b), May 30, 1988, 102 Stat. 581; Pub. L. 102–378, §2(8), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 111–350, §5(a)(4), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 55a.	Aug. 2, 1946, ch. 744, §15, 60 Stat. 810.

In subsection (a), the definitions of "agency" and "appropriation" are added on authority of the Act of Aug. 2, 1946, ch. 744, §18, 60 Stat. 811.

In subsection (b), the words "the provisions of this title governing appointment in the competitive service" are substituted for "the civil-service laws". The words "chapter 51 and subchapter III of chapter 53 of this title" are substituted for the reference to the classification laws which originally meant the Classification Act of 1923, as amended. Exception from the Classification Act of 1949 is based on sections 202(27) and 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 956, 972.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2011—Subsec. (b)(3). Pub. L. 111–350 substituted "section 6101(b) to (d) of title 41" for "section 5 of title 41".

1992—Subsecs. (d), (e). Pub. L. 102–378 added subsecs. (d) and (e).

1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

1982—Subsec. (a)(2). Pub. L. 97–258 substituted "section 9104" for "section 849".

1978—Subsec. (c). Pub. L. 95–454 added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Limitation on Consulting Services

Pub. L. 113–76, div. G, title IV, §401, Jan. 17, 2014, 128 Stat. 337, provided that: "In fiscal year 2014 and thereafter, the expenditure of any appropriation under this Act [div. G of Pub. L. 113–76, see Tables for classification] or any subsequent Act appropriating funds for departments and agencies funded in this Act, for any consulting service through procurement contract, pursuant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order issued pursuant to existing law."

Appropriations Relating to Labor, Health and Human Services, and Education; Public Disclosure of Consulting Service Through Procurement Contract

Pub. L. 102–394, title V, §501, Oct. 6, 1992, 106 Stat. 1825, provided that: "The expenditure of any appropriation under this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts for any consulting service through procurement contract, pursuant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order issued pursuant to existing law."

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 102–170, title V, §501, Nov. 26, 1991, 105 Stat. 1140.

Pub. L. 101–517, title V, §501, Nov. 5, 1990, 104 Stat. 2220.

Pub. L. 101–166, title V, §501, Nov. 21, 1989, 103 Stat. 1189.

Pub. L. 100–202, §101(h) [title V, §501], Dec. 22, 1987, 101 Stat. 1329–256, 1329-287.

Pub. L. 99–500, §101(i) [H.R. 5233, title V, §501], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, §101(i) [H.R. 5233, title V, §501], Oct. 30, 1986, 100 Stat. 3341–287.

Pub. L. 99–178, title V, §501, Dec. 12, 1985, 99 Stat. 1132.

Pub. L. 98–619, title V, §501, Nov. 8, 1984, 98 Stat. 3332.

Pub. L. 98–139, title V, §501, Oct. 31, 1983, 97 Stat. 898.

Pub. L. 97–377, title I, §101(e)(1) [title V, §501], Dec. 21, 1982, 96 Stat. 1878, 1904.

Availability of Appropriations for Services

Pub. L. 102–394, title V, §503, Oct. 6, 1992, 106 Stat. 1825, provided that: "Appropriations contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts, available for salaries and expenses, shall be available for services as authorized by 5 U.S.C. 3109 but at rates for individuals not to exceed the per diem rate equivalent to the maximum rate payable for senior-level positions under 5 U.S.C. 5376."

[For reference to maximum rate under section 5376 of this title, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under section 5376 of this title.]

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 102–170, title V, §503, Nov. 26, 1991, 105 Stat. 1140.

Pub. L. 101–517, title V, §503, Nov. 5, 1990, 104 Stat. 2221.

Pub. L. 101–166, title V, §503, Nov. 21, 1989, 103 Stat. 1189.

Pub. L. 100–202, §101(h) [title V, §503], Dec. 22, 1987, 101 Stat. 1329–256, 1329-287.

Pub. L. 99–500, §101(i) [H.R. 5233, title V, §503], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, §101(i) [H.R. 5233, title V, §503], Oct. 30, 1986, 100 Stat. 3341–287.

Pub. L. 99–178, title V, §503, Dec. 12, 1985, 99 Stat. 1132.

Pub. L. 98–619, title V, §503, Nov. 8, 1984, 98 Stat. 3333.

Pub. L. 98–139, title V, §503, Oct. 31, 1983, 97 Stat. 899.

Pub. L. 97–377, title I, §101(e)(1) [title V, §503], Dec. 21, 1982, 96 Stat. 1878, 1904.

Appropriations Relating to Energy and Water Development; Public Disclosure of Consulting Service Through Procurement Contract

Pub. L. 102–377, title V, §504, Oct. 2, 1992, 106 Stat. 1342, provided that: "The expenditure of any appropriation under this Act or subsequent Energy and Water Development Appropriations Acts for any consulting service through procurement contract, pursuant to section 3109 of title 5, United States Code, hereafter shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law."

Executive Documents

Ex. Ord. No. 13433. Protecting American Taxpayers From Payment of Contingency Fees

Ex. Ord. No. 13433, May 16, 2007, 72 F.R. 28441, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. To help ensure the integrity and effective supervision of the legal and expert witness services provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance of performance of the services, except when otherwise required by law.

Sec. 2. Duties of Agency Heads. (a) Heads of agencies shall implement within their respective agencies the policy set forth in section 1, consistent with such instructions as the Attorney General may prescribe.

(b) After the date of this order, no agency shall enter into a contingency fee agreement for legal or expert witness services addressed by section 1 of this order, unless the Attorney General has determined that the agency's entry into the agreement is required by law.

(c) Within 90 days after the date of this order, the head of each agency shall notify the Attorney General and the Director of the Office of Management and Budget of any contingency fee agreements for services addressed by section 1 of this order that are in effect as of the date of this order.

Sec. 3. Definitions. For purposes of this order:

(a) The term "agency" means an executive agency as defined in section 105 of title 5, United States Code, and the United States Postal Service and the Postal Regulatory Commission, but shall exclude the Government Accountability Office and elements of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 as amended (50 U.S.C. 401a(4)) [now 50 U.S.C. 3003(4)][)].

(b) The term "contingency fee agreement" means a contract or other agreement to provide services under which the amount or the payment of the fee for the services is contingent in whole or in part on the outcome of the matter for which the services were obtained. The term does not include:

(i) qualified tax collection contracts defined in section 6306 of title 26, United States Code, and

(ii) contracts described in sections 3711 and 3718 of title 31, United States Code.

Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(c) This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.

George W. Bush.      

§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.

(Added Pub. L. 90–206, title II, §221(a), Dec. 16, 1967, 81 Stat. 640; amended Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Editorial Notes

Amendments

1978—Subsec. (d). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Pub. L. 90–206, title II, §220(a)(1), Dec. 16, 1967, 81 Stat. 639, provided, except as otherwise expressly provided, that: "This section [enacting provisions set out as a note under section 8704 of this title] and sections 201 [enacting provisions set out as Short Title note under section 5332 of this title], 207 [amending section 5303 of this title], 212 [enacting provisions set out as a note under section 5303 of this title], 218 [enacting provisions set out as a note under section 5332 of this title], 221 [enacting this section and provisions set out as a note under this section], 224(a) and (b) [amending sections 4101 and 8339 of this title], and 225 [enacting sections 351–361 of Title 2, The Congress] shall become effective on the date of enactment of this title [Dec. 16, 1967]."

Retroactive Effect

Pub. L. 90–206, title II, §221(c), Dec. 16, 1967, 81 Stat. 641, provided that: "The amendments made by this section [enacting this section] do not apply to an appointment, employment, advancement, or promotion made or advocated by a public official of any individual who is a relative of the public official if, prior to the effective date of this section [see Effective Date note above], the individual was appointed by the public official, or received an appointment advocated by the public official, and is serving under the appointment on such effective date."

[Section 221(c) of Pub. L. 90–206 effective Dec. 16, 1967, see section 220(a)(1) of Pub. L. 90–206, set out as an Effective Date note above.]

§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 section 7905 (relating to commuting by means other than single-occupancy motor vehicles), chapter 81 (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.

(d) Notwithstanding section 1342 of title 31, the head of an agency may accept voluntary service for the United States under chapter 37 of this title and regulations of the Office of Personnel Management.

(e)(1) For purposes of this section the term "agency" shall include the Architect of the Capitol. With respect to the Architect of the Capitol, the authority granted to the Office of Personnel Management under this section shall be exercised by the Architect of the Capitol.

(2) In this section, the term "agency" includes the Congressional Budget Office, except that in the case of the Congressional Budget Office—

(A) any student who provides voluntary service in accordance with this section shall be considered an employee of the Congressional Budget Office for purposes of section 203 of the Congressional Budget Act of 1974 (relating to the level of confidentiality of budget data); and

(B) the authority granted to the Office of Personnel Management under this section shall be exercised by the Director of the Congressional Budget Office.

(Added Pub. L. 95–454, title III, §301(a), Oct. 13, 1978, 92 Stat. 1144; amended Pub. L. 97–258, §3(a)(5), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 97–437, Jan. 8, 1983, 96 Stat. 2285; Pub. L. 107–296, title XIII, §1314(b), Nov. 25, 2002, 116 Stat. 2296; Pub. L. 107–347, title II, §209(g)(1)(A), Dec. 17, 2002, 116 Stat. 2931; Pub. L. 111–68, div. A, title I, §1303(a), Oct. 1, 2009, 123 Stat. 2034; Pub. L. 113–76, div. I, title I, §1201(a), Jan. 17, 2014, 128 Stat. 426.)

Editorial Notes

References in Text

Section 203 of the Congressional Budget Act of 1974, referred to in subsec. (e)(2)(A), is classified to section 603 of Title 2, The Congress.

Amendments

2014—Subsec. (e). Pub. L. 113–76 designated existing provisions as par. (1) and added par. (2).

2009—Subsec. (e). Pub. L. 111–68 added subsec. (e).

2002—Subsec. (c)(1). Pub. L. 107–296 substituted "section 7905 (relating to commuting by means other than single-occupancy motor vehicles), chapter 81" for "chapter 81 of this title".

Subsec. (d). Pub. L. 107–347 added subsec. (d).

1983—Subsec. (c)(1). Pub. L. 97–437, §1(1), substituted "(c)(1) Except as provided in par. (2), any" for "(c) Any".

Subsec. (c)(2). Pub. L. 97–437, §1(2), added par. (2).

1982—Subsec. (b). Pub. L. 97–258 substituted "section 1342 of title 31" for "section 3679(b) of the Revised Statutes (31 U.S.C. 665(b))".

Statutory Notes and Related Subsidiaries

Effective Date of 2014 Amendment

Pub. L. 113–76, div. I, title I, §1201(b), Jan. 17, 2014, 128 Stat. 426, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to fiscal year 2014 and each succeeding fiscal year."

Effective Date of 2002 Amendments

Amendment by Pub. L. 107–347 effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as an Effective Date note under section 3601 of Title 44, Public Printing and Documents.

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date

Section effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§3111a. Federal internship programs

(a) Internship Coordinator.—The head of each agency operating an internship program shall appoint an individual within such agency to serve as an internship coordinator.

(b) Online Information.—

(1) Agencies.—The Office of Personnel Management shall make publicly available on the Internet—

(A) the name and contact information of the internship coordinator for each agency; and

(B) information regarding application procedures and deadlines for each internship program.

(2) Office of personnel management.—The Office of Personnel Management shall make publicly available on the Internet links to the websites where the information described in paragraph (1) is displayed.

(c) Definitions.—For purposes of this section—

(1) the term "internship program" means—

(A) a volunteer service program under section 3111(b);

(B) an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585);

(C) a program operated by a nongovernment organization for the purpose of providing paid internships in agencies under a written agreement that is similar to an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585); or

(D) a program that—

(i) is similar to an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585); and

(ii) is authorized under another statutory provision of law;

(2) the term "intern" means an individual participating in an internship program; and

(3) the term "agency" means an Executive agency.

(Added Pub. L. 112–81, div. A, title XI, §1109(a), Dec. 31, 2011, 125 Stat. 1614.)

Editorial Notes

References in Text

Executive Order 13562, referred to in subsec. (c)(1), is set out as a note under section 3301 of this title.

Statutory Notes and Related Subsidiaries

Regulations

Pub. L. 112–81, div. A, title XI, §1109(c), Dec. 31, 2011, 125 Stat. 1615, provided that: "The Office of Personnel Management may prescribe regulations to carry out the amendment made by subsection (a) [enacting this section]."

§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.

(Added Pub. L. 95–454, title III, §307(b)(1), Oct. 13, 1978, 92 Stat. 1147.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§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)).

(Added Pub. L. 105–61, title VI, §638(a), Oct. 10, 1997, 111 Stat. 1316.)

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 105–61, title VI, §638(c), Oct. 10, 1997, 111 Stat. 1317, provided that: "This section [enacting this section] shall apply during fiscal year 1998 and each fiscal year thereafter."

§3114. Appointment of candidates to certain positions in the competitive service by the Securities and Exchange Commission

(a) Applicability.—This section applies with respect to any position of accountant, economist, and securities compliance examiner at the Commission that is in the competitive service, and any position at the Commission in the competitive service that requires specialized knowledge of financial and capital market formation or regulation, financial market structures or surveillance, or information technology.

(b) Appointment Authority.—

(1) In general.—The Commission may appoint candidates to any position described in subsection (a)—

(A) in accordance with the statutes, rules, and regulations governing appointments in the excepted service; and

(B) notwithstanding any statutes, rules, and regulations governing appointments in the competitive service.

(2) Rule of construction.—The appointment of a candidate to a position under authority of this subsection shall not be considered to cause such position to be converted from the competitive service to the excepted service.

(c) Reports.—No later than 90 days after the end of fiscal year 2003 (for fiscal year 2003) and 90 days after the end of fiscal year 2005 (for fiscal years 2004 and 2005), the Commission shall submit a report with respect to its exercise of the authority granted by subsection (b) during such fiscal years to the Committee on Government Reform and the Committee on Financial Services of the House of Representatives and the Committee on Governmental Affairs and the Committee on Banking, Housing, and Urban Affairs of the Senate. Such reports shall describe the changes in the hiring process authorized by such subsection, including relevant information related to—

(1) the quality of candidates;

(2) the procedures used by the Commission to select candidates through the streamlined hiring process;

(3) the numbers, types, and grades of employees hired under the authority;

(4) any benefits or shortcomings associated with the use of the authority;

(5) the effect of the exercise of the authority on the hiring of veterans and other demographic groups; and

(6) the way in which managers were trained in the administration of the streamlined hiring system.

(d) Commission Defined.—For purposes of this section, the term "Commission" means the Securities and Exchange Commission.

(Added Pub. L. 108–44, §2(a), July 3, 2003, 117 Stat. 842; amended Pub. L. 111–203, title IX, §929G(a), July 21, 2010, 124 Stat. 1855.)

Editorial Notes

Amendments

2010—Pub. L. 111–203 substituted "Appointment of candidates to certain positions in the competitive service by the Securities and Exchange Commission" for "Appointment of accountants, economists, and examiners by the Securities and Exchange Commission" in section catchline, added subsec. (a), and struck out former subsec. (a). Prior to amendment, text read as follows: "This section applies with respect to any position of accountant, economist, and securities compliance examiner at the Commission that is in the competitive service."

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

§3115. Expedited hiring authority for college graduates; competitive service

(a) Definitions.—In this section:

(1) Director.—The term "Director" means the Director of the Office of Personnel Management.

(2) Institution of higher education.—The term "institution of higher education" has the meaning given the term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(b) Appointment.—

(1) In general.—The head of an agency may appoint, without regard to any provision of sections 3309 through 3319 and 3330, a qualified individual to a position in the competitive service classified in a professional or administrative occupational category at the GS–11 level, or an equivalent level, or below.

(2) Restrictions.—An appointment under paragraph (1) shall be made in accordance with regulations prescribed by the Director.

(c) Qualifications for Appointment.—The head of an agency may make an appointment under subsection (b) only if the individual being appointed—

(1) has received a baccalaureate or graduate degree from an institution of higher education;

(2) applies for the position—

(A) not later than 2 years after the date on which the individual being appointed received the degree described in paragraph (1); or

(B) in the case of an individual who has completed a period of not less than 4 years of obligated service in a uniformed service, not later than 2 years after the date of the discharge or release of the individual from that service; and

(3) meets each minimum qualification standard prescribed by the Director for the position to which the individual is being appointed.

(d) Public Notice and Advertising.—

(1) In general.—The head of an agency making an appointment under subsection (b) shall publicly advertise positions under this section.

(2) Requirements.—In carrying out paragraph (1), the head of an agency shall—

(A) adhere to merit system principles;

(B) advertise positions in a manner that provides for diverse and qualified applicants; and

(C) ensure potential applicants have appropriate information relevant to the positions available.

(e) Limitation on Appointments.—

(1) In general.—Except as provided in paragraph (2), the total number of employees that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of individuals that the agency head appointed during the previous fiscal year to a position in the competitive service classified in a professional or administrative occupational category, at the GS–11 level, or an equivalent level, or below, under a competitive examining procedure.

(2) Exceptions.—Under a regulation prescribed under subsection (f), the Director may establish a lower limit on the number of individuals that may be appointed under paragraph (1) of this subsection during a fiscal year based on any factor the Director considers appropriate.

(f) Regulations.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administration of this section.

(g) Reporting.—

(1) In general.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to—

(A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and

(B) the Director that contains data that the Director considers necessary for the Director to assess the impact and effectiveness of the authority described in subparagraph (A).

(2) Content.—The head of an agency shall include in each report under paragraph (1)—

(A) the total number of individuals appointed by the agency under this section, as well as the number of such individuals who are—

(i) minorities or members of other underrepresented groups; or

(ii) veterans;

(B) recruitment sources;

(C) the total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service classified in a professional or administrative occupational category at the GS–11 level, or an equivalent level, or below; and

(D) any additional data specified by the Director.

(h) Special Provision Regarding the Department of Defense.—

(1) Authority.—Nothing in this section shall preclude the Secretary of Defense from exercising any authority to appoint a recent graduate under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute.

(2) Regulations.—Any regulations prescribed by the Director for the administration of this section shall not apply to the Department of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates.

(Added Pub. L. 115–232, div. A, title XI, §1108(a), Aug. 13, 2018, 132 Stat. 2006.)

Editorial Notes

References in Text

GS–11, referred to in subsecs. (b)(1), (e)(1), and (g)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title.

The date of enactment of this section, referred to in subsecs. (f) and (g)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018.

Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (h), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces.

§3116. Expedited hiring authority for post-secondary students; competitive service

(a) Definitions.—In this section:

(1) Director.—The term "Director" means the Director of the Office of Personnel Management.

(2) Institution of higher education.—The term "institution of higher education" has the meaning given the term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(3) Student.—The term "student" means an individual enrolled or accepted for enrollment in an institution of higher education who is pursuing a baccalaureate or graduate degree on at least a part-time basis as determined by the institution of higher education.

(b) Appointment.—

(1) In general.—The head of an agency may make a time-limited appointment of a student, without regard to any provision of sections 3309 through 3319 and 3330, to a position in the competitive service at the GS–11 level, or an equivalent level, or below for which the student is qualified.

(2) Restrictions.—An appointment under paragraph (1) shall be made in accordance with regulations prescribed by the Director.

(c) Public Notice.—

(1) In general.—The head of an agency making an appointment under subsection (b) shall publicly advertise positions available under this section.

(2) Requirements.—In carrying out paragraph (1), the head of an agency shall—

(A) adhere to merit system principles;

(B) advertise positions in a manner that provides for diverse and qualified applicants; and

(C) ensure potential applicants have appropriate information relevant to the positions available.

(d) Limitation on Appointments.—

(1) In general.—Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of students that the agency head appointed during the previous fiscal year to a position at the GS–11 level, or an equivalent level, or below.

(2) Exceptions.—Under a regulation prescribed under subsection (g), the Director may establish a lower limit on the number of students that may be appointed under paragraph (1) of this subsection during a fiscal year based on any factor the Director considers appropriate.

(e) Conversion.—The head of an agency may, without regard to any provision of chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, convert a student serving in an appointment under subsection (b) to a permanent appointment in the competitive service within the agency without further competition if the student—

(1) has completed the course of study leading to the baccalaureate or graduate degree;

(2) has completed not less than 640 hours of current continuous employment in an appointment under subsection (b); and

(3) meets the qualification standards for the position to which the student will be converted.

(f) Termination.—The head of an agency shall, without regard to any provision of chapter 35 or 75, terminate the appointment of a student appointed under subsection (b) upon completion of the designated academic course of study unless the student is selected for conversion under subsection (e).

(g) Regulations.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administration of this section.

(h) Reporting.—

(1) In general.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to—

(A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and

(B) the Director that contains data that the Director considers necessary for the Director to assess the impact and effectiveness of the authority described in subparagraph (A).

(2) Content.—The head of an agency shall include in each report under paragraph (1)—

(A) the total number of individuals appointed by the agency under this section, as well as the number of such individuals who are—

(i) minorities or members of other underrepresented groups; or

(ii) veterans;

(B) recruitment sources;

(C) the total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below; and

(D) any additional data specified by the Director.

(i) Special Provision Regarding the Department of Defense.—

(1) Authority.—Nothing in this section shall preclude the Secretary of Defense from exercising any authority to appoint a post-secondary student under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute.

(2) Regulations.—Any regulations prescribed by the Director for the administration of this section shall not apply to the Department of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates.

(Added Pub. L. 115–232, div. A, title XI, §1108(a), Aug. 13, 2018, 132 Stat. 2007; amended Pub. L. 116–92, div. A, title XI, §1115, Dec. 20, 2019, 133 Stat. 1604.)

Editorial Notes

References in Text

GS–11, referred to in subsecs. (b)(1), (d)(1), and (h)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title.

The date of enactment of this section, referred to in subsecs. (g) and (h)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018.

Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (i), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces.

Amendments

2019—Subsec. (d)(1). Pub. L. 116–92 amended par. (1) generally. Prior to amendment, text read as follows: "Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of students that the agency head appointed during the previous fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below."

SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE

§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.

(Added Pub. L. 95–454, title IV, §402(a), Oct. 13, 1978, 92 Stat. 1154.)

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 95–454, title IV, §415, Oct. 13, 1978, 92 Stat. 1179, provided that:

"(a)(1) The provisions of this title, other than sections 413 and 414(a) [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title, and enacting provisions set out as a note under section 5311 of this title], shall take effect 9 months after the date of the enactment of this Act [Oct. 13, 1978].

"(2) The provisions of section 413 of this title [set out as a note under section 3133 of this title] shall take effect on the date of the enactment of this Act [Oct. 13, 1978].

"(3) The provisions of section 414(a) of this title [amending sections 3104 and 5108 of this title and enacting provisions set out as notes under sections 3104 and 5108 of this title] shall take effect 180 days after the date of the enactment of this Act [Oct. 13, 1978].

"(b)(1) The amendments made by sections 401 through 412 of this title [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title] shall continue to have effect unless, during the first period of 60 calendar days of continuous session of the Congress beginning after 5 years after the effective date of such amendments, a concurrent resolution is introduced and adopted by the Congress disapproving the continuation of the Senior Executive Service. Such amendments shall cease to have effect on the first day of the first fiscal year beginning after the date of the adoption of such concurrent resolution.

"(2) The continuity of a session is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.

"(3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j), and (k) of section 5305 of title 5, United States Code, shall apply with respect to any concurrent resolution referred to in paragraph (1) of this subsection, except that for the purpose of this paragraph the reference in such subsection (e) to 10 calendar days shall be considered a reference to 30 calendar days.

"(4) During the 5-year period referred to in paragraph (1) of this subsection, the Director of the Office of Personnel Management shall include in each report required under section 3135 of title 5, United States Code (as added by this title) an evaluation of the effectiveness of the Senior Executive Service and the manner in which such Service is administered."

Congressional Findings Respecting Continuation of Senior Executive Service

Pub. L. 98–615, title III, §301, Nov. 8, 1984, 98 Stat. 3217, provided that: "The Congress finds that the Senior Executive Service should be continued indefinitely."

Executive Documents

Ex. Ord. No. 13714. Strengthening the Senior Executive Service

Ex. Ord. No. 13714, Dec. 15, 2015, 80 F.R. 79225, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to strengthen the recruitment, hiring, and development of the Federal Government's senior executives; I hereby order as follows:

Section 1. Policy. It is in the national interest to facilitate career executive continuity between administrations; to increase senior leadership attention to, and involvement in, executive recruitment; to reduce unnecessary burdens on applicants for executive positions; and to efficiently document demonstrated executive experience. Furthermore, it is imperative to periodically explore and promote new selection methods that effectively and efficiently identify the most capable and talented candidates for executive leadership positions to enhance the breadth and diversity of experiences among our Federal executives; to better support, recognize, and reward our executives, especially our top performers; and to strengthen executive accountability, all while maintaining a system that is focused on the public interest and free from improper political influence. An important aspect of strengthening our Senior Executive Service (SES) members is valuing the work they do every day, rewarding excellence, professionalism, and outstanding achievement through special act awards, Presidential Rank Awards, and other non-monetary and honorary awards. Consistent with the requirements of Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-Wide Initiative to Promote Diversity and Inclusion in the Federal Workforce), and with merit-based principles, this order continues to support executive departments and agencies (agencies) to develop and implement a comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of the recruitment, hiring, retention, and development of their SES cadre. Pursuing these goals will significantly improve the Federal Government's ability to serve the American people. Unless otherwise noted, this order applies to career members of the SES.

Section 2 of this order establishes, under the President's Management Council (PMC), a Subcommittee to advise the Office of Personnel Management (OPM), the PMC, and the President on senior executive matters, help monitor execution of an important set of executive reforms contained in section 3 of this order, and help keep the Federal Government's executive management practices current and effective. In order to identify and maximize the use of best practices, requirements in sections [sic] 3(b)(i)–(iv) of this order will be implemented in three phases, with Phase I consisting of seven agencies, which will execute those reforms in fiscal year (FY) 2016; Phase II consisting of seven agencies, which will execute those reforms in FY 2017; and Phase III consisting of all other agencies, which will execute those reforms in FY 2018.

Sec. 2. Establishment of PMC Subcommittee to Strengthen the Senior Executive Service. There is established the PMC Subcommittee to Strengthen the Senior Executive Service (Subcommittee) to inform and support Government-wide priorities for improved management of senior executives identified by the Deputy Director for Management of the Office of Management and Budget (OMB) in consultation with the Director of OPM. The Subcommittee shall consist of five members of the PMC: the Deputy Director for Management of OMB, the Director of OPM, and three other members of the PMC. The Subcommittee will be advised by at least two career members of the SES to be determined by the members of the Subcommittee, and shall collaborate with the Chief Human Capital Officers Council. Expressions of interest to serve on the Subcommittee will be solicited, and final selections will be made by the Deputy Director for Management of OMB in consultation with the Director of OPM. The Subcommittee will advise OPM, members of the PMC, and the President on ways to strengthen and improve the SES workforce, as outlined in this order. In addition, it will identify any Government-wide obstacles it perceives to executive management, assist OPM in facilitating career executive continuity between administrations, and facilitate communication among the SES cadre.

Sec. 3. Requirements. Under the direction, or, in the case of sections 3(a)(i) and 3(b)(ii) of this order, the guidance, of the Director of OPM, and in consultation with OMB and the PMC Subcommittee, agencies shall undertake the following actions:

(a) Actions for Immediate Government-wide Implementation.

(i) Starting in FY 2017, agencies should limit their aggregate spending on agency performance awards for SES and Senior Level (SL) and Senior Scientific or Professional (ST) employees to 7.5 percent of aggregate SES and SL/ST salaries respectively. OMB and OPM shall undertake a review of, and revise as appropriate, their current guidance regarding aggregate spending on such awards. In addition, agencies should allocate awards in a manner that provides meaningfully greater rewards to top performers. Within 120 days of the date of this order, OPM shall issue, as appropriate, additional guidance regarding the distribution of such awards.

(ii) The heads of agencies with SES positions that supervise General Schedule (GS) employees shall implement policies, as permitted by and consistent with applicable law and regulation, for initial pay setting and pay adjustments, as appropriate, for career SES appointees to result in compensation exceeding the rates of pay, including locality pay, of their subordinate GS employees. Similar policies shall be implemented by heads of agencies for Senior Professional (i.e., SL or ST) employees that supervise GS employees. Such policies and practices support, recognize, and reward agency executives, especially top performers, in a manner commensurate with their roles, responsibilities, and contributions, and may increase the competitiveness of SES positions with comparable positions outside of Government.

(iii) Within 90 days of the date of this order, OPM shall evaluate the current Qualifications Review Board (QRB) process and issue guidance to agencies about materials that would be acceptable for QRB consideration and that will serve as an alternative or replacement to the current lengthy essay requirement for QRB submission, which may deter qualified applicants for SES positions or put an additional burden on human resources staff. The guidance shall also advise agencies about ways to streamline their initial application requirements for SES positions, including evaluation of options, such as allowing individuals to apply by only submitting a resume-based application and any additional materials necessary to determine relevant qualifications, consistent with the new QRB submission requirements.

(iv) Within 120 days of OPM issuing the guidance described in section 3(a)(iii) of this order, the heads of agencies with SES positions shall examine the agency's career SES hiring process and make changes to the process to make it more efficient, effective, and less burdensome for all participants. Agencies shall simplify the initial application requirements for SES positions consistent with the guidance issued in section 3(a)(iii) of this order, and should only request critically necessary technical qualifications, with the goal of minimizing requirements that may deter qualified applicants from applying. Agencies shall also monitor time to hire of SES positions, and identify appropriate process improvements or other changes that can help reduce time to hire while ensuring high quality of hires.

(v) By May 31, 2016, the heads of agencies with 20 or more SES positions shall develop and submit to OPM a 2-year plan to increase the number of SES members who are rotating to improve talent development, mission delivery and collaboration. While agency specific targets will not be required, this order establishes a Government-wide goal of 15 percent of SES members rotating for a minimum of 120 days (including to different departments, agencies, subcomponents, functional areas, sectors, and non-federal partners) during FY 2017, and thereafter, in order to ensure the mobility of the corps while also maintaining stability of operations. Within 45 days of the date of this order, OPM shall issue guidance for implementation of section 3(a)(v) of this order. OPM shall evaluate the percentages set forth in this subsection on an ongoing basis and make adjustments as necessary and appropriate. These plans shall take into consideration the policy priorities of the agency, agency needs and rules in the context of administration transitions, needs identified in agency hiring plans and succession plans, the development opportunities listed in individuals' Executive Development Plans (EDP), and the Federal Government's interest in cultivating generalist executives with broad and diverse experiences who can lead a variety of organizations. These plans shall build on existing succession management processes and those established in section 3(b)(i) of this order to ensure high potential and top performers have an opportunity to cycle through rotations. These plans shall also incorporate, as appropriate, flexibilities agencies have such as the Intergovernmental Personnel Act (implemented in 5 CFR part 334) to encourage SES members to pursue temporary assignments to State and local governments, colleges and universities, tribal governments, and other eligible organizations, and to better understand the impact of the Federal Government's work on those it serves. Finally, these plans shall include an assessment of the degree to which these rotation assignments achieve the desired goals for the individual and agency.

(b) Actions for Phased Implementation. Under the direction, or, in the case of section 3(b)(ii) of this order, the guidance, of the Director of OPM, in consultation with OMB and the PMC Subcommittee, the reforms listed in sections [sic] 3(b)(i)–(iv) of this order shall be implemented by agencies on the following schedule: the Secretaries of Defense, Energy, Health and Human Services, Housing and Urban Development, and Veterans Affairs; the Administrator of General Services; and the Director of OPM shall implement these reforms by September 30, 2016; the Secretaries of Agriculture, Education, Labor, and Transportation, and the Administrators of the National Aeronautics and Space Administration, the Environmental Protection Agency, and the Small Business Administration shall implement these reforms by September 30, 2017; the Secretaries of State, the Treasury, the Interior, Commerce, and Homeland Security, the Attorney General, and the Administrator of the U.S. Agency for International Development, as well as the Directors of OMB and the National Science Foundation, shall implement these reforms by September 30, 2018. By October 1 of each year, OPM shall issue additional guidance after each phase of implementation that reflects lessons learned and any adjustments to these reforms based on the agencies that have implemented them. By the respective date specified above, the heads of agencies shall:

(i) Establish an annual talent management and succession planning process to assess the development needs of all SES members, and SL and ST employees as appropriate, to inform readiness decisions about hiring, career development, and executive reassignments and rotations. These assessments shall include input from each executive, as well as the executive's supervisor, and shall be used to recommend development activities and inform the organization's succession planning, decisions about duty assignments, and agency hiring plans;

(ii) Proactively recruit individuals for vacant SES positions and regularly review those recruitment efforts at the Deputy Secretary (or direct designee) level on at least a quarterly basis, consistent with existing rules and regulations. Establish a mechanism to track, and raise for appropriate senior-level attention, information about each position that agencies are seeking to fill, including, at a minimum, source of the recruitment, number, quality and diversity (as available) of applicants, source of applicants (subcomponent, agency or non-government), and timeliness of the hiring process. Use the talent management and succession planning process described in section 3(b)(i) of this order and agency hiring plans to inform these recruitment efforts; and develop a tailored outreach strategy for proactive recruitment for key strategic positions;

(iii) Require supervisors of executives in their agency to work with their subordinate executives to update EDPs for each executive required by 5 CFR part 412.401, to include at least one developmental activity annually and at least one leadership assessment involving employee feedback (for example, 360 degree-type reviews) every 3 years to inform each executive's developmental needs. In addition, non-career SES and equivalent appointees should also have one leadership assessment during their first 2 years, and additional assessments every 3 years thereafter; and

(iv) Establish a formal Executive Onboarding Program informed by OPM's Enhanced Executive Onboarding Model and Government-Wide Executive Onboarding Framework, which shall provide critical support and guidance to executives through their first year of service in new positions, consistent with guidance to be issued by OPM no later than 60 days after the date of this order. Onboarding shall be provided for career and non-career SES, SL and ST employees, and SES-equivalent positions.

Sec. 4. Additional Implementation Considerations. (a) Actions for Agencies with SES-Equivalent Positions. Certain agencies have independent authorities enabling them to establish positions that are equivalent to SES or Senior Professional positions, or an executive personnel system that includes such positions. Whether the positions or employment systems are established in title 5 (for example, FBI/DEA SES) or in other titles of the United States Code (for example, Senior Foreign Service, Defense Intelligence SES, Senior National Intelligence Service), the agency head shall determine the extent to which the agency implements policies and processes to support objectives identified in sections 3(a) and 3(b) of this order for such positions consistent with the agency's authorities and purposes for which the law provides them, with such consultation with the Director of OPM, OMB, and the PMC Subcommittee as the agency may require.

(b) Agency Status and Reporting. Within 45 days of the date of this order, OPM will issue guidance, concurrent with guidance in section 3(a)(v) of this order, that defines regular reporting on the status of each agency's implementation of the provisions in this order.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

§3132. Definitions and exclusions

(a) For the purpose of this subchapter—

(1) "agency" means an Executive agency, except a Government corporation and the Government Accountability 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 Office of the Director of National Intelligence, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10, and, as determined by the President, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities;

(C) the Federal Election Commission or the Election Assistance Commission;

(D) the Office of the Comptroller of the Currency, the Office of Thrift Supervision,,¹ the Resolution Trust Corporation, the Farm Credit Administration, the Federal Housing Finance Agency, the National Credit Union Administration, the Bureau of Consumer Financial Protection, and the Office of Financial Research;

(E) the Securities and Exchange Commission; or

(F) the Commodity Futures Trading Commission;

(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;

(ii) an administrative law judge position under section 3105 of this title;

(iii) any position established as a qualified position in the excepted service by the Secretary of Homeland Security under section 226 ² of the Homeland Security Act of 2002; or

(iv) any position established as a qualified position in the excepted service by the Secretary of Defense under section 1599f of title 10;

(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.

(Added Pub. L. 95–454, title IV, §402(a), Oct. 13, 1978, 92 Stat. 1155; amended Pub. L. 96–54, §2(a)(12), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–187, title II, §203, Jan. 8, 1980, 93 Stat. 1368; Pub. L. 100–325, §2(c), May 30, 1988, 102 Stat. 581; Pub. L. 101–73, title VII, §742(c), Aug. 9, 1989, 103 Stat. 437; Pub. L. 101–509, title V, §529 [title I, §101(b)(9)(A)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 101–624, title XVIII, §1841, Nov. 28, 1990, 104 Stat. 3835; Pub. L. 102–496, title IV, §402(b), Oct. 24, 1992, 106 Stat. 3184; Pub. L. 102–550, title XIII, §1351(b), Oct. 28, 1992, 106 Stat. 3969; Pub. L. 103–359, title V, §501(d), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, §1122(a)(1), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 107–123, §8(d)(1)(B), Jan. 16, 2002, 115 Stat. 2399; Pub. L. 107–171, title X, §10702(c)(1), May 13, 2002, 116 Stat. 517; Pub. L. 107–252, title VIII, §811(b), Oct. 29, 2002, 116 Stat. 1727; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–289, div. A, title I, §1161(g)(2), July 30, 2008, 122 Stat. 2781; Pub. L. 110–417, [div. A], title IX, §931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 111–203, title I, §152(d)(4), July 21, 2010, 124 Stat. 1414; Pub. L. 112–277, title V, §505(b), Jan. 14, 2013, 126 Stat. 2478; Pub. L. 113–277, §3(b), Dec. 18, 2014, 128 Stat. 3008; Pub. L. 114–92, div. A, title XI, §1107(b), Nov. 25, 2015, 129 Stat. 1027.)

Editorial Notes

References in Text

Level IV or V of the Executive Schedule, referred to in subsec. (a)(2), are set out in sections 5315 and 5316 of this title.

Section 226 of the Homeland Security Act of 2002, referred to in cl. (iii) of concluding provisions of subsec. (a)(2), probably means the section 226 of Pub. L. 107–296 as added by Pub. L. 113–277, §3(a), Dec. 18, 2014, 128 Stat. 3005, which was renumbered section 2208 of Pub. L. 107–296 by Pub. L. 115–278, §2(g)(2)(I), Nov. 16, 2018, 132 Stat. 4178, and is classified to section 658 of Title 6, Domestic Security.

The date of the enactment of the Civil Service Reform Act of 1978, referred to in subsec. (b)(3), is the date of the enactment of Pub. L. 95–454, which was approved Oct. 13, 1978.

Amendments

2015—Subsec. (a)(2). Pub. L. 114–92 added cl. (iv) of concluding provisions.

2014—Subsec. (a)(2). Pub. L. 113–277 added cl. (iii) of concluding provisions.

2013—Subsec. (a)(1)(B). Pub. L. 112–277 inserted "the Office of the Director of National Intelligence," after "the Central Intelligence Agency,".

2010—Subsec. (a)(1)(D). Pub. L. 111–203 substituted "the National Credit Union Administration, the Bureau of Consumer Financial Protection, and the Office of Financial Research;" for "and the National Credit Union Administration;".

2008—Subsec. (a)(1)(B). Pub. L. 110–417 substituted "National Geospatial-Intelligence Agency" for "National Imagery and Mapping Agency".

Pub. L. 110–289, §1161(g)(2)(A), substituted ", and" for ",, and".

Subsec. (a)(1)(D). Pub. L. 110–289, §1161(g)(2)(B), struck out "the Federal Housing Finance Board" after "the Office of Thrift Supervision,", substituted "the Federal Housing Finance Agency" for "the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development", and struck out "or or" at end.

Subsec. (a)(1)(E), (F). Pub. L. 110–289, §1161(g)(2)(C), (D), inserted "or" at end of subpar. (E), relating to Securities and Exchange Commission, and redesignated subpar. (E), relating to Commodity Futures Trading Commission, as (F).

2004—Subsec. (a)(1). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions.

2002—Subsec. (a)(1)(C). Pub. L. 107–252, §811(b), inserted "or the Election Assistance Commission" after "Commission".

Pub. L. 107–171, §10702(c)(1)(A), which directed amendment by striking "or" at the end, could not be executed because the word "or" did not appear at the end. See below.

Pub. L. 107–123, §8(d)(1)(B)(i), struck out "or" at end.

Subsec. (a)(1)(D). Pub. L. 107–171, §10702(c)(1)(B), inserted "or" at end.

Pub. L. 107–123, §8(d)(1)(B)(ii), inserted "or" at end.

Subsec. (a)(1)(E). Pub. L. 107–171, §10702(c)(1)(C), added subpar. (E) relating to Commodity Futures Trading Commission.

Pub. L. 107–123, §8(d)(1)(B)(iii), added subpar. (E) relating to the Securities and Exchange Commission.

1996—Subsec. (a)(1)(B). Pub. L. 104–201 substituted "National Imagery and Mapping Agency" for "Central Imagery Office".

1994—Subsec. (a)(1)(B). Pub. L. 103–359 inserted "the Central Imagery Office," after "Defense Intelligence Agency,".

1992—Subsec. (a)(1)(B). Pub. L. 102–496 inserted ", Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10," after "National Security Agency".

Subsec. (a)(1)(D). Pub. L. 102–550 inserted "the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development," after "Farm Credit Administration,".

1990—Subsec. (a)(1)(D). Pub. L. 101–624 inserted reference to Farm Credit Administration.

Subsec. (a)(2). Pub. L. 101–509 substituted "classified above GS–15 pursuant to section 5108" for "in GS–16, 17, or 18 of the General Schedule".

1989—Subsec. (a)(1)(D). Pub. L. 101–73 added subpar. (D).

1988—Subsec. (a)(1)(B). Pub. L. 100–325, §2(c)(1), inserted reference to Drug Enforcement Administration.

Subsec. (a)(2)(iii). Pub. L. 100–235, §2(c)(2), struck out cl. (iii) which read as follows: "any position in the Drug Enforcement Administration which is excluded from the competitive service under section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108 note; 90 Stat. 2425);".

1980—Subsec. (a)(1)(C). Pub. L. 96–187 added subpar. (C).

1979—Subsec. (a)(1)(B). Pub. L. 96–54 inserted "and," after "Security Agency,".

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

Effective Date of 2008 Amendment

Pub. L. 110–289, div. A , title I, §1163, July 30, 2008, 122 Stat. 2782, provided that: "Except as otherwise specifically provided in this title [see Tables for classification], this title and the amendments made by this title shall take effect on, and shall apply beginning on, the date of enactment of this Act [July 30, 2008]."

Effective Date of 2002 Amendments

Amendment by Pub. L. 107–252 effective upon appointment of all members of the Election Assistance Commission under section 20923 of Title 52, Voting and Elections, see section 21134(a) of Title 52.

Amendment by Pub. L. 107–123 effective Oct. 1, 2001, see section 11 of Pub. L. 107–123, set out as a note under section 78ee of Title 15, Commerce and Trade.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–187 effective on Jan. 8, 1980, see section 301(a) of Pub. L. 96–187, set out as a note under section 30101 of Title 52, Voting and Elections.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

Construction

Pub. L. 112–166, §2(hh), Aug. 10, 2012, 126 Stat. 1290, provided that: "Notwithstanding section 3132(a)(2) of title 5, United States Code, removal of Senate confirmation for any position in this section shall not—

"(1) result in any such position being placed in the Senior Executive Service; or

"(2) alter compensation for any such position under the Executive Schedule or other applicable compensation provisions of law."

¹ So in original.

² So in original. See References in Text note below.

§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. Beginning in 2023, the number of such positions authorized under the preceding sentence for the Department of Defense may not exceed the limitation provided in section 1109 of the National Defense Authorization Act for Fiscal Year 2017.

(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.

(Added Pub. L. 95–454, title IV, §402(a), Oct. 13, 1978, 92 Stat. 1158; amended Pub. L. 114–328, div. A, title XI, §1109(c), Dec. 23, 2016, 130 Stat. 2449.)

Editorial Notes

References in Text

Section 1109 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (c), is section 1109 of Pub. L. 114–328, set out as a note below.

Section 413 of the Civil Service Reform Act of 1978, referred to in subsec. (e)(1), is section 413 of Pub. L. 95–454, set out as a note below.

The date of such Act, referred to in subsec. (e)(1), probably means Oct. 13, 1978, the date of the enactment of the Civil Service Reform Act of 1978.

Amendments

2016—Subsec. (c). Pub. L. 114–328 inserted at end "Beginning in 2023, the number of such positions authorized under the preceding sentence for the Department of Defense may not exceed the limitation provided in section 1109 of the National Defense Authorization Act for Fiscal Year 2017."

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

Limitation on Number of DOD SES Positions

Pub. L. 114–328, div. A, title XI, §1109, Dec. 23, 2016, 130 Stat. 2449, as amended by Pub. L. 118–31, div. A, title XI, §1115, Dec. 22, 2023, 137 Stat. 433, provided that:

"(a) Limitation on Number of DOD SES Positions.—

"(1) In general.—Not later than December 31, 2022, the total number of Senior Executive Service positions authorized under section 3133 of title 5, United States Code, for the Department of Defense may not exceed 1,260.

"(2) Highly qualified experts.—Of the total number of positions authorized under paragraph (1), not more than 200 of such positions may be occupied by an individual appointed under the authority provided in section 9903 of such title.

"(3) Exception.—The limitation under this subsection shall not apply to positions described in this subsection that are fully funded through amounts appropriated to an agency other than the Department of Defense.

"(b) Plan to Achieve Required Limitation.—

"(1) In general.—The Secretary of Defense shall develop a plan to achieve the limitation required by subsection (a) that includes—

"(A) the distribution of Senior Executive Service positions across the Office of the Secretary of Defense, the Joint Staff, the Military Departments, the Defense Agencies and Field Activities, the unified and specified combatant commands, and other key elements of the Department of Defense;

"(B) the by-year reductions to Senior Executive Service positions consistent with the distribution required under subparagraph (A); and

"(C) recommendations for any legislative action that may be necessary for personnel management and shaping authorities to achieve the required limitation.

"(2) Submission of plan.—Not less than one year after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the plan developed under paragraph (1).

"(3) Progress reports.—The Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives semi-annual progress report briefings describing and assessing the progress of the Secretary in implementing the plan developed under paragraph (1).

"(c) Conforming Amendment.—[Amended section 3133(c) of this title.]

"(d) Definition of Senior Executive Service Position.—In this section, the term 'Senior Executive Service position' has the meaning given such term in section 3132(a)(2) of title 5, United States Code."

Conversion to Senior Executive Service

Pub. L. 95–454, title IV, §413, Oct. 13, 1978, 92 Stat. 1175, provided that:

"(a) For the purpose of this section, 'agency', 'Senior Executive Service position', 'career appointee', 'career reserved position', 'limited term appointee', 'noncareer appointee', and 'general position' have the meanings set forth in section 3132(a) of title 5, United States Code (as added by this title) and 'Senior Executive Service' has the meaning set forth in section 2101a of such title 5 (as added by this title).

"(b)(1) Under the guidance of the Office of Personnel Management, each agency shall—

"(A) designate those positions which it considers should be Senior Executive Service positions and designate which of those positions it considers should be career reserved positions; and

"(B) submit to the Office a written request for—

"(i) a specific number of Senior Executive Service positions; and

"(ii) authority to employ a specific number of noncareer appointees.

"(2) The Office of Personnel Management shall review the designations and requests of each agency under paragraph (1) of this subsection, and shall establish interim authorizations in accordance with sections 3133 and 3134 of title 5, United States Code (as added by this Act), and shall publish the titles of the authorized positions in the Federal Register.

"(c)(1) Each employee serving in a position at the time it is designated as a Senior Executive Service position under subsection (b) of this section shall elect to—

"(A) decline conversion and be appointed to a position under such employee's current type of appointment and pay system, retaining the grade, seniority, and other rights and benefits associated with such type of appointment and pay system; or

"(B) accept conversion and be appointed to a Senior Executive Service position in accordance with the provisions of subsections (d), (e), (f), (g), and (h) of this section.

The appointment of an employee in an agency because of an election under subparagraph (A) of this paragraph shall not result in the separation or reduction in grade of any other employee in such agency.

"(2) Any employee in a position which has been designated a Senior Executive Service position under this section shall be notified in writing of such designation, the election required under paragraph (1) of this subsection, and the provisions of subsections (d), (e), (f), (g), and (h) of this section. The employee shall be given 90 days from the date of such notification to make the election under paragraph (1) of this subsection.

"(d) Each employee who has elected to accept conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under—

"(1) a career or career-conditional appointment; or

"(2) a similar type of appointment in an excepted service position, as determined by the Office;

in a position which is designated as a Senior Executive Service position shall be appointed as a career appointee to such Senior Executive Service position without regard to section 3393(b)–(e) of title 5, United States Code (as added by this title).

"(e) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under an excepted appointment in a position which is not designated a career reserved position in the Senior Executive Service, but is—

"(1) a position in Schedule C of subpart C of part 213 of title 5, Code of Federal Regulations;

"(2) a position filled by noncareer executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations; or

"(3) a position in the Executive Schedule under subchapter II of chapter 53 of title 5, United States Code [section 5311 et seq. of this title], other than a career Executive Schedule position;

shall be appointed as a noncareer appointee to a Senior Executive Service position.

"(f) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a career reserved position under subsection (b) of this section shall be appointed as a noncareer appointee to an appropriate general position in the Senior Executive Service or shall be separated.

"(g) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a Senior Executive Service position and who has reinstatement eligibility to a position in the competitive service, may, on request to the Office, be appointed as a career appointee to a Senior Executive Service position. The name of, and basis for reinstatement eligibility for, each employee appointed as a career appointee under this subsection shall be published in the Federal Register.

"(h) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under a limited executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations, shall—

"(1) be appointed as a limited term appointee to a Senior Executive Service position if the position then held by such employee will terminate within 3 years of the date of such appointment;

"(2) be appointed as a noncareer appointee to a Senior Executive Service position if the position then held by such employee is designated as a general position; or

"(3) be appointed as a noncareer appointee to a general position if the position then held by such employee is designated as a career reserved position.

"(i) The rate of basic pay for any employee appointed to a Senior Executive Service position under this section shall be greater than or equal to the rate of basic pay payable for the position held by such employee at the time of such appointment.

"(j) Any employee who is aggrieved by any action by any agency under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of title 5, United States Code (as added by this title). An agency shall take any corrective action which the Board orders in its decision on an appeal under this subsection.

"(k) The Office shall prescribe regulations to carry out the purpose of this section."

[Pub. L. 95–454, title IV, §415(a)(2), Oct. 13, 1978, 92 Stat. 1179, provided that section 413 [set out above] is effective Oct. 13, 1978.]

§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.

(Added Pub. L. 95–454, title IV, §402(a), Oct. 13, 1978, 92 Stat. 1159.)

Editorial Notes

References in Text

The date of enactment of the Civil Service Reform Act of 1978, referred to in subsec. (d)(2), is the date of enactment of Pub. L. 95–454, which was approved Oct. 13, 1978.

Level IV or V of the Executive Schedule, referred to in subsec. (d)(2)(B), are set out in sections 5315 and 5316 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

[§3135. Repealed. Pub. L. 104–66, title II, §2181(a)(1), Dec. 21, 1995, 109 Stat. 732]

Section, added Pub. L. 95–454, title IV, §402(a), Oct. 13, 1978, 92 Stat. 1159; amended Pub. L. 98–168, title III, §301(b), Nov. 29, 1983, 97 Stat. 1112; Pub. L. 98–615, title III, §306(a), Nov. 8, 1984, 98 Stat. 3219, directed Office of Personnel Management to submit reports to Congress relating to Senior Executive Service.

§3136. Regulations

The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.

(Added Pub. L. 95–454, title IV, §402(a), Oct. 13, 1978, 92 Stat. 1160.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

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

(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 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; ¹

(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) Except as provided in subsection (a), the Attorney General may—

(1) 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

(2) 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.

(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 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.

(Added Pub. L. 100–325, §1(a), May 30, 1988, 102 Stat. 579; amended Pub. L. 101–194, title V, §506(b)(1), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 109–108, title I, §111, Nov. 22, 2005, 119 Stat. 2305.)

Editorial Notes

References in Text

Section 3393a, referred to in subsec. (a)(5)(E), was repealed by Pub. L. 107–296, title XIII, §1321(a)(1)(B), Nov. 25, 2002, 116 Stat. 2296.

Provisions of this title governing appointments and other personnel actions in the competitive service, referred to in subsec. (b)(2), are classified generally to section 3301 et seq. of this title.

Amendments

2005—Subsec. (b). Pub. L. 109–108 struck out par. (1) designation before "Except as provided", redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows:

"(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."

1989—Subsec. (a)(5)(E). Pub. L. 101–194 added subpar. (E).

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Pub. L. 101–194, title V, §506(d), Nov. 30, 1989, 103 Stat. 1759, provided that: "The amendments made by this section [enacting section 3393a of this title and amending this section, sections 3393, 3592 to 3594, 7701, 8336, 8339, 8414, and 8421 of this title, section 1601 of Title 10, Armed Forces, section 3945 of Title 22, Foreign Relations and Intercourse, and section 3610 of Title 50, War and National Defense] shall take effect on January 1, 1991."

¹ See References in Text note below.

§3152. Limitation on pay

Members of the FBI–DEA Senior Executive Service shall be subject to the limitation under section 5307.

(Added Pub. L. 100–325, §1(a), May 30, 1988, 102 Stat. 581; amended Pub. L. 102–378, §2(9), Oct. 2, 1992, 106 Stat. 1347.)

Editorial Notes

Amendments

1992—Pub. L. 102–378 amended section generally. Prior to amendment, section read as follows: "Nothing in this subchapter shall be construed to allow the aggregate amount payable to a member of the FBI–DEA Senior Executive Service under this subchapter during any fiscal year to exceed the annual rate payable for positions at level I of the Executive Schedule in effect at the end of such year. This section shall be applied in a manner consistent with paragraphs (1) and (2) of section 5383(b)."

SUBCHAPTER IV—TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE ORDER

§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.

(Added Pub. L. 106–398, §1 [[div. A], title XI, §1101(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A-308.)

SUBCHAPTER V—PRESIDENTIAL INNOVATION FELLOWS PROGRAM

§3171. Presidential Innovation Fellows Program

(a) Policy.—It is in the national interest for the Government to attract the brightest minds skilled in technology or innovative practices to serve in the Government to work on some of the Nation's biggest and most pressing challenges. This subchapter establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Government and work in close cooperation with Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Government serves the American people.

(b) Establishment.—The Administrator of General Services shall continue the Presidential Innovation Fellows Program (hereinafter referred to as the "Program") to enable exceptional individuals with proven track records to serve time-limited appointments in executive agencies to address some of the Nation's most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology.

(c) Administration.—The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration. The Administrator shall provide necessary staff, resources and administrative support for the Program.

(d) Appointment of Fellows.—The Director shall appoint fellows pursuant to the Program and, in cooperation with executive agencies, shall facilitate placement of fellows to participate in projects that have the potential for significant positive effects and are consistent with the President's goals.

(e) Application Process.—

(1) In general.—The Director shall prescribe the process for applications and nominations of individuals to the Program.

(2) Program standards.—Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Governmentwide cap on the number of fellows. The Director shall establish and publish salary ranges, benefits, and standards for the Program.

(f) Selection, Appointment, and Assignment of Fellows.—

(1) Procedures.—The Director shall prescribe appropriate procedures for the selection, appointment, and assignment of fellows.

(2) Consultation.—Prior to the selection of fellows, the Director shall consult with the heads of executive agencies regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as fellows.

(3) Time limitation.—Fellows selected for the Program shall serve under short-term, time-limited appointments. Such fellows shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing fellows at requesting executive agencies.

(g) Responsibilities of Agencies.—Each executive agency shall work with the Director and the Presidential Innovation Fellows Program advisory board established under section 3172 to attempt to maximize the Program's benefits to the agency and the Government, including by identifying initiatives that have a meaningful effect on the people served and that benefit from involvement by one or more fellows. Such agencies shall ensure that each fellow works closely with responsible senior officials for the duration of the assignment.

(Added Pub. L. 115–1, §2(a), Jan. 20, 2017, 131 Stat. 3.)

Statutory Notes and Related Subsidiaries

Transition

Pub. L. 115–1, §2(c), Jan. 20, 2017, 131 Stat. 5, provided that: "The Presidential Innovation Fellows Program established pursuant to Executive Order No. 13704 (5 U.S.C. 3301 note [now 5 U.S.C. 3171 note]) as in existence on the day before the date of enactment of this Act [Jan. 20, 2017] shall be considered the Presidential Innovation Fellows Program described in the amendments made by this Act [enacting this section and section 3172 of this title]."

Executive Documents

Ex. Ord. No. 13704. Presidential Innovation Fellows Program

Ex. Ord. No. 13704, Aug. 17, 2015, 80 F.R. 50751, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is in the national interest for the Federal Government to attract the brightest minds skilled in technology or innovative practices to serve in the Federal Government to work on some of the Nation's biggest and most pressing challenges. This order establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Federal Government and work in close cooperation with Federal Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Federal Government serves the American people.

Sec. 2. Establishment and Administration. (a) The Administrator of General Services (Administrator) shall establish the Presidential Innovation Fellows Program (Program) to enable exceptional individuals with proven track records to serve time-limited appointments in executive branch departments and agencies (agencies) to address some of the Nation's most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology. Individuals selected for the Program shall be known as Presidential Innovation Fellows (Fellows).

(b) The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration (GSA). GSA shall provide necessary staff, resources and administrative support for the Program to the extent permitted by law and within existing appropriations.

(c) GSA shall appoint the Fellows and, in cooperation with agencies, shall facilitate placement of the Fellows to participate in projects that have the potential for significant positive effects and are consistent with the President's goals.

Sec. 3. Advisory Board. (a) The Administrator shall establish an Advisory Board to advise the Director by recommending such priorities and standards as may be beneficial to fulfill the mission of the Program and assist in identifying potential projects and placements for Fellows. The Advisory Board will not participate in the Fellows' selection process.

(b) The Administrator will designate a representative to serve as the Chair of the Advisory Board. In addition to the Chair, the membership of the Advisory Board shall include the Deputy Director for Management of the Office of Management and Budget, the Director of the Office of Personnel Management, the Office of Management and Budget's Administrator of the Office of Electronic Government, and the Assistant to the President and Chief Technology Officer, or their designees and such other persons as may be designated by the Administrator. Consistent with law, the Advisory Board may consult with industry, academia, or non-profits to ensure the Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation's most significant challenges.

Sec. 4. Application Process. (a) The Director, in accordance with applicable law, shall prescribe the process for applications and nominations of individuals to the Program.

(b) Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Government-wide cap on the number of Fellows.

The Director shall establish and publish salary ranges, benefits, and standards for the Program.

Sec. 5. Selection, Appointment, and Assignment of Fellows. (a) The Director, in accordance with applicable law, shall prescribe appropriate procedures for the selection, appointment, and assignment of Fellows.

(b) Prior to the selection of Fellows, the Director will consult with agencies and executive branch departments, regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as Fellows.

(c) The Fellows shall serve under short-term, time-limited appointments. As a general matter, they shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing Fellows at requesting agencies and executive branch departments.

Sec. 6. Responsibilities of Agencies. Each executive branch department or agency, as defined in section 105 of title 5, United States Code, is encouraged to work with the Director and Advisory Board to attempt to maximize the Program's benefits to the department or agency and the Federal Government, including by identifying initiatives that will have a meaningful effect on the people served and that will benefit from involvement by one or more Fellows. Departments and agencies also are encouraged to ensure that each Fellow will work closely with responsible senior officials for the duration of the assignment.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

§3172. Presidential Innovation Fellows Program advisory board

(a) In General.—The Administrator of General Services shall continue an advisory board to advise the Director of the Presidential Innovation Fellows Program by recommending such priorities and standards as may be beneficial to fulfill the mission of the Presidential Innovation Fellows Program and assist in identifying potential projects and placements for fellows. The advisory board may not participate in the selection process under section 3171(f).

(b) Chair; Membership.—The Administrator shall designate a representative to serve as the Chair of the advisory board. In addition to the Chair, the membership of the advisory board shall include—

(1) the Deputy Director for Management of the Office of Management and Budget;

(2) the Director of the Office of Personnel Management;

(3) the Administrator of the Office of Electronic Government of the Office of Management and Budget;

(4) the Assistant to the President and Chief Technology Officer; and

(5) other individuals as may be designated by the Administrator.

(c) Consultation.—The advisory board may consult with industry, academia, or nonprofits to ensure the Presidential Innovation Fellows Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation's most significant challenges.

(Added Pub. L. 115–1, §2(a), Jan. 20, 2017, 131 Stat. 4.)

CHAPTER 33—EXAMINATION, SELECTION, AND PLACEMENT

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND APPOINTMENT

        

        

SUBCHAPTER II—OATH OF OFFICE

        

SUBCHAPTER III—DETAILS, VACANCIES, AND APPOINTMENTS

        

SUBCHAPTER IV—TRANSFERS

        

SUBCHAPTER V—PROMOTION

        

SUBCHAPTER VI—ASSIGNMENTS TO AND FROM STATES

        

SUBCHAPTER VII—AIR TRAFFIC CONTROLLERS

        

SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE

        

Amendment of Analysis

Pub. L. 118–159, div. F, title LXVI, §6612(e)(2), Dec. 23, 2024, 138 Stat. 2505, provided that, on the date that is 5 years after Dec. 23, 2024, item 3330d of this analysis is amended to read as it read on the day before Dec. 23, 2024. See 2024 Amendment note below.

Pub. L. 118–31, div. A, title XI, §1119(d), Dec. 22, 2023, 137 Stat. 435, provided that, effective Dec. 31, 2028, the amendment made by section 1119(b) of Pub. L. 118–31 would expire. See 2023 Amendment note below.

Pub. L. 115–232, div. A, title XI, §1107(c), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this analysis is amended by striking items 3317, 3318, and 3319 and inserting new items 3317 "Competitive service; certification using numerical ratings", 3318 "Competitive service; selection using numerical ratings", and 3319 "Competitive service; selection using category rating". See 2018 Amendment note below.

Pub. L. 115–232, div. A, title V, §573(e), Aug. 13, 2018, 132 Stat. 1779, as amended by Pub. L. 117–263, div. A, title XI, §1111(a), Dec. 23, 2022, 136 Stat. 2820, provided that, effective Dec. 31, 2028, the amendment made by section 573(b) of Pub. L. 115–232 would expire. See 2018 Amendment note below.

Editorial Notes

Amendments

2024—Pub. L. 118–159, div. F, title LXVI, §6612(b), (e)(2), Dec. 23, 2024, 138 Stat. 2505, which directed the amendment of the table of sections for subchapter I of this chapter by adding item 3330d "Appointment of military and Department of Defense, Department of State, and intelligence community civilian spouses" and striking out former item 3330d "Appointment of military and Department of Defense civilian spouses" and by subsequently amending item 3330d, effective 5 years after Dec. 23, 2024, to read as it read on the day before Dec. 23, 2024, was executed to the table of sections for this chapter, to reflect the probable intent of Congress.

2023—Pub. L. 118–31, div. A, title XI, §1119(b), (d), Dec. 22, 2023, 137 Stat. 434, 435, which directed the amendment of the table of sections for subchapter I of this chapter by adding item 3330d "Appointment of military and Department of Defense civilian spouses" and striking out former item 3330d "Appointment of military spouses", was executed to the table of sections for this chapter and was treated as temporary to reflect the probable intent of Congress, notwithstanding termination provision in sections 573(e) of Pub. L. 115–232 and 1119(d) of Pub. L. 118–31, which effectively undid the amendments made to section 3330d of this title but only provided that the amendment made to this analysis would expire. See Termination Date of 2018 Amendment and Termination Date of 2023 Amendment notes set out under section 3330d of this title.

2022—Pub. L. 117–263, div. E, title LII, §5221(b), title LIII, §5322(a)(2), Dec. 23, 2022, 136 Stat. 3234, 3259, which directed amendment of the analyses for subchapter I of this chapter by adding item 3330f and for subchapter III of this chapter by adding item 3349e, was executed by adding items 3330f and 3349e to the analysis for this chapter to reflect the probable intent of Congress.

2018—Pub. L. 115–232, div. A, title XI, §1107(c), Aug. 13, 2018, 132 Stat. 2005, substituted "certification using numerical ratings" for "certification from registers." in item 3317, "selection using numerical ratings" for "selection from certificates." in item 3318, and "Competitive service; selection using category rating" for "Alternative ranking and selection procedures." in item 3319.

Pub. L. 115–232, div. A, title V, §573(b), (e), Aug. 13, 2018, 132 Stat. 1779, which amended analysis by adding item 3330d "Appointment of military spouses" and striking out former item 3330d, "Appointment of certain military spouses", was treated as temporary to reflect the probable intent of Congress, notwithstanding termination provision in section 573(e) of Pub. L. 115–232, which effectively undid the amendments made to section 3330d of this title but only provided that the amendment made to this analysis would expire. See Termination Date of 2018 Amendment note set out under section 3330d of this title.

2016—Pub. L. 114–328, div. A, title XI, §§1136(c), 1140(c), Dec. 23, 2016, 130 Stat. 2460, 2471, which directed the amendment of the table of sections for subchapter I of this chapter by adding item 3330e at end and inserting item 3322 after item 3321, respectively, was executed to the table of sections for this chapter, to reflect the probable intent of Congress.

2013—Pub. L. 112–239, div. A, title V, §566(c), Jan. 2, 2013, 126 Stat. 1751, added item 3330d.

2002—Pub. L. 107–296, title XIII, §§1312(b), 1321(a)(1)(C), Nov. 25, 2002, 116 Stat. 2291, 2296, added item 3319 and struck out item 3393a "Recertification".

1998—Pub. L. 105–339, §3(b), Oct. 31, 1998, 112 Stat. 3184, added items 3330a to 3330c.

Pub. L. 105–277, div. C, title I, §151(c)(1), Oct. 21, 1998, 112 Stat. 2681–616, substituted "DETAILS, VACANCIES, AND APPOINTMENTS" for "DETAILS" in heading for subchapter III, "Acting officer" for "Details; to office of head of Executive agency or military department" in item 3345, "Time limitation" for "Details; to subordinate offices" in item 3346, "Exclusivity" for "Details; Presidential authority" in item 3347, "Vacant office" for "Details; limited in time" in item 3348, and "Reporting of vacancies" for "Details; to fill vacancies; restrictions" in item 3349 and added items 3349a to 3349d.

1996—Pub. L. 104–197, title III, §315(b)(1), Sept. 16, 1996, 110 Stat. 2416, substituted "Competitive service; recommendations of Senators or Representatives" for "Political recommendations" in item 3303.

Pub. L. 104–106, div. A, title X, §1037(b)(2), Feb. 10, 1996, 110 Stat. 432, which directed substitution of "3330. Government-wide list of vacant positions" for the item relating to section 3329, as added by section 4431(b) of Pub. L. 102–484, could not be executed because of the intervening amendment by Pub. L. 104–52, §4(2). See 1995 Amendment note below.

1995—Pub. L. 104–52, title IV, §4(2), Nov. 19, 1995, 109 Stat. 490, redesignated item 3329 "Government-wide list of vacant positions" as item 3330.

1993—Pub. L. 103–94, §8(b), Oct. 6, 1993, 107 Stat. 1007, substituted "Political recommendations" for "Competitive service; recommendations of Senators or Representatives" in item 3303.

1992—Pub. L. 102–484, div. A, title V, §544(b), div. D, title XLIV, §4431(b), Oct. 23, 1992, 106 Stat. 2415, 2720, added two items 3329.

Pub. L. 102–378, §2(13)(B), Oct. 2, 1992, 106 Stat. 1347, struck out item 3342 "Federal participants in executive exchange programs".

1990—Pub. L. 101–509, title V, §529 [title I, §101(b)(9)(C)(iii)], Nov. 5, 1990, 104 Stat. 1427, 1441, substituted "Appointments to positions classified above GS–15" for "Appointments at GS–16, 17, and 18" in item 3324.

Pub. L. 101–416, §2(a)(2), Oct. 12, 1990, 104 Stat. 903, added item 3342.

1989—Pub. L. 101–194, title V, §506(a)(2), Nov. 30, 1989, 103 Stat. 1758, added item 3393a.

Pub. L. 101–12, §5(b), Apr. 10, 1989, 103 Stat. 33, added item 3352.

1988—Pub. L. 100–398, §7(a)(3), Aug. 17, 1988, 102 Stat. 988, inserted "agency" after "Executive" in item 3345.

1985—Pub. L. 99–145, title XVI, §1622(a)(2), Nov. 8, 1985, 99 Stat. 777, added item 3328.

1979—Pub. L. 96–54, §2(a)(13), Aug. 14, 1979, 93 Stat. 382, struck out item 3315a "Registers; individuals receiving compensation for work injuries".

1978—Pub. L. 95–454, title III, §§303(b), 307(h)(2), 309(b), title IV, §403(b), title IX, §906(c)(4), Oct. 13, 1978, 92 Stat. 1146, 1149, 1152, 1165, 1227, substituted "probationary period" for "probation; period of" in item 3321, struck out item 3319 "Competitive service; selection; members of family restriction", added items 3327 and 3391 to 3397, and struck out items 3391 to 3398.

Pub. L. 95–437, §3(b), Oct. 10, 1978, 92 Stat. 1058, added heading for subchapter VII and items 3391 to 3398.

Pub. L. 95–256, §5(b)(2), Apr. 6, 1978, 92 Stat. 191, struck out item 3322 "Competitive service; temporary appointments after age 70".

Pub. L. 95–251, §2(c)(3), Mar. 27, 1978, 92 Stat. 184, substituted "administrative law judges" for "hearing examiners" in item 3344.

Pub. L. 95–228, §2(a), Feb. 10, 1978, 92 Stat. 25, struck out item 3306 "Competitive service; departmental service; apportionment".

1975—Pub. L. 94–183, §2(7), Dec. 31, 1975, 89 Stat. 1057, struck out item 3364 "Promotion; substitute employees in the postal field service".

1972—Pub. L. 92–297, §§2(b), 3(b), May 16, 1972, 86 Stat. 142, 144, substituted "maximum age entrance requirements, exceptions" for "maximum age requirement; restriction on use of appropriated funds" in item 3307, and added subchapter VII and items 3381 to 3385.

1971—Pub. L. 91–648, title IV, §402(b), Jan. 5, 1971, 84 Stat. 1925, added heading for subchapter VI and items 3371 to 3376.

1970—Pub. L. 91–375, §6(c)(7)(B), Aug. 12, 1970, 84 Stat. 776, struck out item 3327 "Postmasters; standards for determination of qualifications".

1967—Pub. L. 90–105, §1(b), Oct. 11, 1967, 81 Stat. 273, added item 3304a.

Pub. L. 90–83, §1(9)(B), Sept. 11, 1967, 81 Stat. 197, added item 3315a.

1966—Pub. L. 89–762, §1(b), Nov. 5, 1966, 80 Stat. 1312, struck out item 3342 "Details; field to departmental service prohibited".

¹ So in original. Does not conform to section catchline.

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND APPOINTMENT

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 417.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 631 (less last 16 words).	R.S. §1753 (less last 16 words).

The words "civil service in the executive branch" are substituted for "civil service of the United States" to confirm the grant of authority in view of the definition of "civil service" in section 2101. The word "will" is substituted for "may". The words "for the employment sought" are substituted for "for the branch of service into which he seeks to enter" as the latter are archaic since there are no "branches" within the executive branch. The word "applicant" is substituted for "candidate".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Statutory Notes and Related Subsidiaries

Short Title of 1998 Amendment

Pub. L. 105–277, div. C, title I, §151(a), Oct. 21, 1998, 112 Stat. 2681–611, provided that: "This section [enacting sections 3345 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3345 of this title] may be cited as the 'Federal Vacancies Reform Act of 1998'."

Short Title of 1991 Amendment

Pub. L. 102–175, §1, Dec. 2, 1991, 105 Stat. 1222, provided that: "This Act [amending sections 3395, 3396, 5383, and 7701 of this title] may be cited as the 'Senior Executive Service Improvements Act'."

Modifications to National Security Education Program

Pub. L. 107–296, title XIII, §1332(a), Nov. 25, 2002, 116 Stat. 2299, provided that:

"(a) Findings and Policies.—

"(1) Findings.—Congress finds that—

"(A) the United States Government actively encourages and financially supports the training, education, and development of many United States citizens;

"(B) as a condition of some of those supports, many of those citizens have an obligation to seek either compensated or uncompensated employment in the Federal sector; and

"(C) it is in the United States national interest to maximize the return to the Nation of funds invested in the development of such citizens by seeking to employ them in the Federal sector.

"(2) Policy.—It shall be the policy of the United States Government to—

"(A) establish procedures for ensuring that United States citizens who have incurred service obligations as the result of receiving financial support for education and training from the United States Government and have applied for Federal positions are considered in all recruitment and hiring initiatives of Federal departments, bureaus, agencies, and offices; and

"(B) advertise and open all Federal positions to United States citizens who have incurred service obligations with the United States Government as the result of receiving financial support for education and training from the United States Government."

Temporary Measures To Facilitate Reemployment of Certain Displaced Federal Employees

Pub. L. 102–484, div. D, title XLIV, §4432, Oct. 23, 1992, 106 Stat. 2720, directed executive agencies and the Department of Defense, in filling vacant positions, to give full consideration to the applications of certain individuals who became displaced employees before Oct. 1, 1997, before selecting any candidate from outside the agency for the position.

National Advisory Council on the Public Service

Pub. L. 101–363, Aug. 14, 1990, 104 Stat. 424, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'National Advisory Council on the Public Service Act of 1990'.

"SEC. 2. FINDINGS.

"The Congress finds that—

"(1) recognition of the services rendered by Federal employees (hereinafter in this Act referred to as 'national public service') should be accorded a high and continuing place on the national agenda;

"(2) the National Commission on the Public Service, through its good works, has documented the need for greater advocacy on behalf of those performing national public service;

"(3) although public service is an honorable profession, members of the public do not always perceive it favorably;

"(4) serious obstacles often hinder the Government's efforts to recruit and retain the best and the brightest for national public service;

"(5) just as the public has a right to expect Federal employees to adhere to the highest standards of excellence and ethicality, so Federal employees have a right to expect an atmosphere of trust and respect, and a sense of accomplishment from their work; and

"(6) an advisory council is needed to provide the President and the Congress with bipartisan, objective assessments of, and recommendations concerning, the Federal workforce.

"SEC. 3. ESTABLISHMENT.

"There shall be established a council to be known as the National Advisory Council on the Public Service (hereinafter in this Act referred to as the 'Council').

"SEC. 4. FUNCTIONS.

"The Council shall—

"(1) regularly assess the state of the Federal workforce;

"(2) in conjunction with the President, the Congress, and the Judiciary, seek to attract individuals of the highest caliber to careers involving national public service, and encourage them and others of similar distinction who are already part of the Federal workforce to make a continuing commitment to national public service;

"(3) promote better public understanding of the role of Federal employees in implementing Government programs and policies, and otherwise seek to improve the public perception of Federal employees;

"(4) encourage efforts to build student interest in performing national public service (whether those efforts are undertaken at the community level, in the classroom, or otherwise); and

"(5) develop methods for improving motivation and excellence among Federal employees.

"SEC. 5. MEMBERSHIP.

"(a) Number and Appointment.—The Council shall be composed of 15 members as follows:

"(1) 2 Members of the Senate, 1 of whom shall be appointed by the majority leader of the Senate and the other of whom shall be appointed by the minority leader of the Senate.

"(2) 2 Members of the House of Representatives, 1 of whom shall be appointed by the Speaker of the House of Representatives and the other of whom shall be appointed by the minority leader of the House of Representatives.

"(3) The Director of the Administrative Office of the United States Courts (or his delegate).

"(4) 10 individuals appointed by the President—

"(A) 4 of whom shall be chosen from among officers serving in the executive branch;

"(B) 1 of whom shall be chosen from among career employees in the civil service;

"(C) 1 of whom shall be a Federal employee who is a member of a labor organization (as defined by section 7103(a)(4) of title 5, United States Code); and

"(D) 4 of whom shall be chosen from among members of the public who do not hold any Government office or position.

"(b) Continuation of Membership.—If any member of the Council whose appointment is based on that individual's holding a Government office or position leaves such office or position, or if any member of the Council under subsection (a)(4)(D) is appointed or elected to a Government office or position, that individual may continue to serve as such a member for not longer than the 90-day period beginning on the date of leaving that office or position, or entering into that office or position, as the case may be.

"(c) Terms.—Members of the Council shall be appointed for the life of the Council.

"(d) Vacancies.—A vacancy in the Council shall be filled in the manner in which the original appointment was made.

"(e) Compensation.—(1) Members of the Council shall not be entitled to pay (or, in the case of members holding any Government office or position, pay in addition to any to which they are otherwise entitled for service in such office or position) by virtue of membership on the Council.

"(2) While serving away from their homes or regular places of business in the performance of duties for the Council, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as authorized by section 5703 of title 5, United States Code, for persons employed intermittently in Government service.

"(f) Quorum.—Eight members of the Council shall constitute a quorum.

"(g) Chairman.—The Chairman of the Council shall be designated by the President from among the members appointed under subsection (a)(4)(D).

"(h) Meetings.—The Council shall meet at the call of the Chairman or a majority of its members, and shall meet on at least a quarterly basis.

"SEC. 6. DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.

"(a) Director.—With the approval of the Council, the Chairman may appoint a Director and fix the pay of such Director at a rate not to exceed the rate for level IV of the Executive Schedule [5 U.S.C. 5315]. The Director shall be a person who, by reason of demonstrated ability in the area of management, government, or public administration, is especially well qualified to serve.

"(b) Staff.—With the approval of the Chairman, the Director may appoint and fix the pay of such personnel as may be necessary to carry out the functions of the Council. The staff of the Council shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.

"(c) Experts and Consultants.—The Council may procure temporary or intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the maximum rate payable under the General Schedule.

"(d) Staff of Federal Agencies.—Upon the request of the Chairman, the head of a Federal agency may detail, on a reimbursable or nonreimbursable basis, any personnel of such agency to the Council to assist the Council in carrying out its functions under this Act.

"SEC. 7. POWERS.

"(a) Mails.—The Council may use the United States mails in the same manner and under the same conditions as other Federal agencies.

"(b) Administrative Support Services.—The Administrator of General Services shall provide to the Council, on a reimbursable basis, such administrative support services as the Council may request.

"(c) Official Data.—The Council may secure directly from any Federal agency information necessary to carry out its functions under this Act. Each such agency is authorized and directed to furnish, to the extent permitted by law, any information requested by the Council.

"(d) Gifts.—The Council—

"(1) may accept money and other property donated, bequeathed, or devised to the Council without condition or restriction (other than that it be used to carry out the work of the Council); and

"(2) may use, sell, or otherwise dispose of any such property to carry out its functions under this Act, except that, upon the termination of the Council, any such property shall be disposed of in accordance with applicable provisions of law governing the disposal of Federal property.

"SEC. 8. REPORTS.

"The Council shall transmit to the President and each House of the Congress—

"(1) within 1 and 2 years, respectively, after the date on which the Council first meets, reports containing its preliminary findings and recommendations; and

"(2) within 3 years after the date on which the Council first meets, a final report containing a detailed statement of the findings and conclusions of the Council, together with its recommendations for such legislation or administrative actions as it considers appropriate.

"SEC. 9. COMMENCEMENT; TERMINATION.

"(a) Commencement.—Appointments under section 5 shall be made, and the Council shall first meet, within 90 days after the date of the enactment of this Act [Aug. 14, 1990].

"(b) Termination.—The Council shall cease to exist upon transmitting its final report under section 8(2).

"SEC. 10. AUTHORIZATION.

"There is authorized to be appropriated such sums as may be necessary to carry out this Act."

Executive Documents

Ex. Ord. No. 8743. Extending the Classified Civil Service

Ex. Ord. No. 8743, Apr. 23, 1941, as amended by Ex. Ord. No. 9230, Aug. 20, 1942; Ex. Ord. No. 9678, Jan. 14, 1946; Ex. Ord. No. 9712, Apr. 13, 1946; Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 1 of the act of November 26, 1940, entitled "Extending the Classified Executive Civil Service of the United States" (54 Stat. 1211), by the Civil Service Act (22 Stat. 403), and by section 1753 of the Revised Statutes of the United States [sections 3301 and 7301 of this title], it is hereby ordered as follows:

Section 1. All offices and positions in the executive civil service of the United States except (1) those that are temporary, (2) those expressly excepted from the provisions of section 1 of the said act of November 26, 1940, (3) those excepted from the classified service under Schedules A and B of the Civil Service Rules, and (4) those which now have a classified status, are hereby covered into the classified civil service of the Government.

Section 2. Section 1 of this order shall become effective on January 1, 1942, except that as to positions affected thereby which are vacant at any time after June 30, 1941, and before January 1, 1942, it shall become effective when the vacancies first exist during such period, and appointments to such vacant positions shall be made in accordance with the Civil Service Rules as amended by section 3 of this order, unless prior express permission is given by the Office of Personnel Management for appointment without regard thereto.

Section 3. (a) Upon consideration of the report of the Committee on Civil Service Improvement (House Document No. 118, 77th Congress) appointed by Executive Order No. 8044 of January 31, 1939, it is hereby found and determined that the regulations and procedures hereinafter prescribed in this section with respect to attorney positions in the classified civil service are required by the conditions of good administration.

(b) There is hereby created in the Office of Personnel Management (hereinafter referred to as the Office) a board to be known as the Board of Legal Examiners (hereinafter referred to as the Board). The Board shall consist of the Solicitor General of the United States and the chief law officer of the Office of Personnel Management, as members ex officio, and nine members to be appointed by the President, four of whom shall be attorneys chosen from the chief officers of the Executive departments, agencies or corporate instrumentalities of the Government, two from the law-teaching profession, and three from attorneys engaged in private practice. The President shall designate the chairman of the Board. Five members shall constitute a quorum, and the Board may transact business notwithstanding vacancies thereon. Members of the Board shall receive no salary as such, but shall be entitled to necessary expenses incurred in the performance of their duties hereunder.

(c) It shall be the duty of the Board to promote the development of a merit system for the recruitment, selection, appointment, promotion, and transfer of attorneys in the classified civil service in accordance with the general procedures outlined in Plan A of the report of the Committee on Civil Service Improvement, appointed by Executive Order No. 8044 of January 31, 1939.

(d) The Board, in consultation with the Office, shall determine the regulations and procedures under this section governing the recruitment and examination of applicants for attorney positions, and the selection, appointment, promotion and transfer of attorneys, in the classified service.

(e) The Office shall in the manner determined by the Board establish a register or registers for attorney positions in the classified service and such positions shall thereafter be filled from such registers as are designated by the Board. Unless otherwise determined by the Board, any register so established shall not be in effect for a period longer than one year from the date of its establishment. Upon request of the Board, the Office shall appoint regional or local boards of examiners composed of persons approved by the Board, within or without the Federal service, to interview and examine applicants as the Board shall direct.

(f) The number of names to be placed upon any register of eligibles for attorney positions shall be limited to the number recommended by the Board; and such registers shall not be ranked according to the ratings received by the eligibles, except that persons entitled to veterans' preference as defined in section 1 of Civil Service Rule VI shall be appropriately designated thereon.

(g) Any person whose name has been placed upon three registers of eligibles covering positions of the same grade, and who has not been appointed therefrom, shall not thereafter be eligible for placement upon any subsequently established register covering positions of such grade.

(h) So far as practicable and consistent with good administration, the eligibles on any register for attorney positions and appointments for such register shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained in the last preceding census. The Office shall certify to the appointing officer for each vacancy all the eligibles on the appropriate register except those whose appointment would, in the determination of the Board, be inconsistent with the apportionment policy herein prescribed. The appointing officer shall make selections for any vacancy or vacancies in attorney positions from the register so certified, with sole reference to merit and fitness.

(i) Any position affected by this section may be filled before appropriate registers have been established pursuant to this section only by a person whose appointment is approved by the Board. The Board may require as a condition of its approval that persons thus proposed for appointment pass a noncompetitive examination and may designate examining committees composed of persons within or without the Federal service to conduct such examinations. Persons whose appointment was approved by the Board prior to March 16, 1942, and who pass a noncompetitive examination prescribed by the Board shall be eligible for a classified civil-service status after the expiration of six months from the date of appointment upon compliance with the provisions of Section 6 of Civil Service Rule II other than those provisions relating to examination. Effective March 16, 1942, all appointments to attorney and law clerk (trainee) positions shall be for the duration of the present war and for six months thereafter unless specifically limited to a shorter period.

(j) The incumbent of any attorney position covered into the classified service by section 1 of this order may acquire a classified civil-service status in accordance with the provisions of Section 2(a) of the act of November 26, 1940 (54 Stat. 1211) or, in the discretion of the Board and when applicable, Section 6, of Civil Service Rule II: Provided, That the noncompetitive examination required thereunder shall be prescribed by the Office with the approval of the Board.

(k) The Office with the approval of the Board shall appoint a competent person to act as Executive Secretary to the Board; and the Office shall furnish such further professionals, clerical, stenographic, and other assistants as may be necessary to carry out the provisions of this section.

(l) The Civil Service Rules are hereby amended to the extent necessary to give effect to the provisions of this section.

Section 4. The noncompetitive examinations prescribed pursuant to sections 3 and 6 of this order and section 2(a) of the said act of November 26, 1940, shall, among other things, require any person taking such examination to meet such reasonable standards of physical fitness and personal suitability as the Office of Personnel Management may prescribe.

Section 5. Persons who on the effective date of section 1 of this order are on furlough or leave without pay from any position covered into the classified service by that section may be recalled to duty within one year of the date that they are furloughed or given leave without pay, and may be continued in such positions thereafter but shall not thereby acquire a classified civil-service status. If they are not recalled to duty within the time specified herein, they shall be separated from the service.

Section 6. (a) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position (other than a temporary position) which is covered into the classified civil service under section 1 of this order, shall be reinstated in such position or to a position of like seniority, status, and pay in the same department or agency, and may, upon reinstatement, acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, (2) that he makes application for reinstatement within 90 days after termination of his service with the armed forces or of hospitalization continuing after discharge for a period of not more than one year, and (3) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.

(b) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position in any department or agency (other than a temporary position) which is covered into the classified civil service under section 1 of this order, may, upon his applications and upon the request of the head of the same or any other department or agency, be reinstated in any position for which the Office finds he is qualified, and upon reinstatement shall acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, and (2) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.

Section 7. Executive Order No. 8044 of January 31, 1939, is hereby revoked so far as it applies to positions covered into the classified civil service by this order.

Executive Order No. 9367

Ex. Ord. No. 9367, Aug. 4, 1943, 8 F.R. 11017, which prohibited, with certain exceptions, instructions of applicants for civil service and foreign service examinations by officers or employees of the government, was revoked by Ex. Ord. No. 11408, Apr. 25, 1968, 33 F.R. 6459.

Ex. Ord. No. 10577. Civil Service Rules

Ex. Ord. No. 10577, Nov. 22, 1954, 19 F.R. 7521, eff. Jan. 23, 1955, as amended by Ex. Ord. No. 10675, Aug. 21, 1956, 21 F.R. 6327; Ex. Ord. No. 10745, Dec. 12, 1957, 22 F.R. 10025; Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055, amended generally the Civil Service Rules, provided for transition from the indefinite appointment system to the career-conditional appointment system, and revoked Ex. Ord. No. 9830, Feb. 24, 1947, 12 F.R. 1259; Ex. Ord. No. 9973, June 28, 1948, 13 F.R. 3600; Ex. Ord. No. 10180, Nov. 13, 1950, 15 F.R. 7745; Ex. Ord. No. 10440, Mar. 31, 1953, 18 F.R. 1823; and Ex. Ord. No. 10463, June 25, 1953, 18 F.R. 3655. The Civil Service Rules are set out in Parts 1 to 10 of Title 5, Code of Federal Regulations. The Civil Service Rules were also amended by the following Executive Orders:

Ex. Ord. No. 10641, Oct. 26, 1955, 20 F.R. 8137, as amended by Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055.

Ex. Ord. No. 10869, Mar. 9, 1960, 25 F.R. 2073.

Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729, as amended by Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055.

Ex. Ord. No. 11839, Feb. 15, 1975, 40 F.R. 7351.

Ex. Ord. No. 11856, May 7, 1975, 40 F.R. 20259.

Ex. Ord. No. 11887, Nov. 4, 1975, 40 F.R. 51411.

Ex. Ord. No. 11935, Sept. 2, 1976, 41 F.R. 37301, as amended by Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055.

Ex. Ord. No. 12021, Nov. 30, 1977, 42 F.R. 61237.

Ex. Ord. No. 12043, Mar. 7, 1978, 43 F.R. 9773, as amended by Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055.

Ex. Ord. No. 12125, Mar. 15, 1979, 44 F.R. 16879.

Ex. Ord. No. 12148, §5–212, July 20, 1979, 44 F.R. 43239, set out in a note under section 5195 of Title 42, The Public Health and Welfare.

Ex. Ord. No. 12300, Mar. 23, 1981, 46 F.R. 18683, superseded by Ex. Ord. No. 12940, Nov. 28, 1994, 59 F.R. 61519.

Ex. Ord. No. 12748, §6(a), formerly §8(a), Feb. 1, 1991, 56 F.R. 4521, as amended, set out as a note under section 5301 of this title.

Ex. Ord. No. 12896, Feb. 3, 1994, 59 F.R. 5515.

Ex. Ord. No. 12940, Nov. 28, 1994, 59 F.R. 61519.

Ex. Ord. No. 13124, §2(b), June 4, 1999, 64 F.R. 31103.

Ex. Ord. No. 13197, Jan. 18, 2001, 66 F.R. 7853.

Ex. Ord. No. 13764, §1, Jan. 17, 2017, 82 F.R. 8115.

Ex. Ord. No. 13843, §3(a), July 10, 2018, 83 F.R. 32756.

Ex. Ord. No. 14029, §3, May 14, 2021, 86 F.R. 27025.

Executive Order No. 10590

Ex. Ord. No. 10590, Jan. 18, 1955, 20 F.R. 409, as amended by Ex. Ord. No. 10722, Aug. 7, 1957, 22 F.R. 6287; Ex. Ord. No. 10773, July 1, 1958, 23 F.R. 5061; Ex. Ord. No. 10782, Sept. 8, 1958, 23 F.R. 6971, which established the President's Committee on Government Employment Policy, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Executive Order No. 10880

Ex. Ord. No. 10880, June 7, 1960, 25 F.R. 5131, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, which provided for conversion of indefinite or temporary appointments to career or career-conditional appointments, was revoked by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617.

Executive Order No. 10925

Ex. Ord. No. 10925, Mar. 7, 1961, 26 F.R. 1977, as amended by Ex. Ord. No. 11114, June 24, 1963, 28 F.R. 6485; Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which established the President's Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Executive Order No. 11114

Ex. Ord. No. 11114, June 24, 1963, 28 F.R. 6485, as amended by Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which extended the authority of the President's Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Ex. Ord. No. 11141. Discrimination on the Basis of Age

Ex. Ord. No. 11141, Feb. 12, 1964, 29 F.R. 2477, provided:

WHEREAS the principle of equal employment opportunity is now an established policy of our Government and applies equally to all who wish to work and are capable of doing so; and

WHEREAS discrimination in employment because of age, except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, is inconsistent with that principle and with the social and economic objectives of our society; and

WHEREAS older workers are an indispensable source of productivity and experience which our Nation can ill afford to lose; and

WHEREAS President Kennedy, mindful that maximum national growth depends on the utilization of all manpower resources, issued a memorandum on March 14, 1963, reaffirming the policy of the Executive Branch of the Government of hiring and promoting employees on the basis of merit alone and emphasizing the need to assure that older people are not discriminated against because of their age and receive fair and full consideration for employment and advancement in Federal employment; and

WHEREAS, to encourage and hasten the acceptance of the principle of equal employment opportunity for older persons by all sectors of the economy, private and public, the Federal Government can and should provide maximum leadership in this regard by adopting that principle as an express policy of the Federal Government not only with respect to Federal employees but also with respect to persons employed by contractors and subcontractors engaged in the performance of Federal contracts:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes of the United States and as President of the United States, I hereby declare that it is the policy of the Executive Branch of the Government that (1) contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, and (2) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. The head of each department and agency shall take appropriate action to enunciate this policy, and to this end the Federal Procurement Regulations and the Armed Services Procurement Regulation shall be amended by the insertion therein of a statement giving continuous notice of the existence of the policy declared by this order.

Lyndon B. Johnson.      

Executive Order No. 11162

Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which related to membership of the President's Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Executive Order No. 11202

Ex. Ord. No. 11202, Mar. 5, 1965, 30 F.R. 3185, which established career or career-conditional appointments for student trainees, was revoked by Ex. Ord. No. 11813, Oct. 7, 1974, 39 F.R. 36317, formerly set out below.

Ex. Ord. No. 11203. Career Appointments to Certain Qualified Employees of Treasury Department

Ex. Ord No. 11203, Mar. 12, 1965; 30 F.R. 3417, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by Section 2 of the Civil Service Act (22 Stat. 403) and Section 1753 of the Revised Statutes of the United States (5 U.S.C. 631) [sections 3301 and 7301 of this title] and as President of the United States, it is hereby ordered as follows—

Section 1. Any employee of the Treasury Department serving under an appointment under Schedule B of the Civil Service Rules in a position concerned with the protection of the life and safety of the President, members of his immediate family, or other persons for whom similar protective services are provided by law (which responsibility is hereinafter referred to as the protective function) may have his appointment converted to a career appointment if:

(1) he has completed at least three years of full-time continuous service in a position concerned with the protective function;

(2) The Secretary of the Treasury, or his designee, recommends the conversion of the employee's appointment within 90 days after the employee meets the service requirements of this section, or within 90 days after the date of this Order, whichever is later;

(3) he shall have passed a competitive examination appropriate for the position he is occupying or meets noncompetitive examination standards the Office of Personnel Management prescribes for his position; and

(4) he meets all other requirements prescribed by the Office pursuant to Section 5 of this Order.

Sec. 2. For the purposes of Section 1—

(1) "full-time continuous service" means service without a break of more than 30 calendar days;

(2) except as provided in paragraph (3) of this section, active service in the Armed Forces of the United States shall be deemed to be full-time continuous service in a position concerned with the protective function if the employee concerned shall have left a position concerned with the protective function to enter the Armed Forces and shall have been re-employed in a position concerned with the protective function within 120 days after he shall have been discharged from the Armed Forces under honorable conditions; and

(3) active service in the Armed Forces shall not be deemed to be full-time continuous service in a position concerned with the protective function if such active service exceeds a total of four years plus any period of additional service imposed pursuant to law.

Sec. 3. Any employee who shall have left a position concerned with the protective function to enter active service in the Armed Forces of the United States, who is re-employed in such a position within 120 days after his discharge under honorable conditions from such service, and who meets the requirements of Section 1 as the result of being credited with his period of active service in the Armed Forces pursuant to Section 2(2), may have his appointment converted if the Secretary of the Treasury or his designee, recommends that conversion within 90 days after his re-employment.

Sec. 4. Whenever the Secretary of the Treasury, or his designee, decides not to recommend conversion of the appointment of an employee under this Order or whenever the Secretary, or his designee, recommends conversion and the employee fails to qualify, the employee shall be separated by the date on which his current Schedule B appointment expires.

Sec. 5. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purposes of this Order.

Ex. Ord. No. 11219. Appointment in Competitive Service of Foreign Service Officers and Employees

Ex. Ord. No. 11219, May 6, 1965, 30 F.R. 6381, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12292, Feb. 23, 1981, 46 F.R. 13967, provided:

By virtue of the authority vested in me by section 1753 of the Revised Statutes [sections 3301 and 7301 of this title] and the Civil Service Act (22 Stat. 403), and as President of the United States, it is hereby ordered as follows:

Section 1. Under regulations and conditions prescribed by the Office of Personnel Management, a present or former member of the Foreign Service may be appointed in the competitive service if he:

(a) Is qualified for the position in the competitive service;

(b) Was appointed in the Foreign Service under authority of the Foreign Service Act of 1946 as amended [former section 801 et seq. of Title 22, Foreign Relations and Intercourse], the Foreign Service Act of 1980 [section 3901 et seq. of Title 22], or legislation that supplements or replaces the latter Act;

(c) Served in the Foreign Service under an unlimited, career-type appointment and, immediately before his separation from that appointment, he completed at least one year of continuous service under one or more nontemporary appointments in the Foreign Service which may include the service that made him eligible for his career-type appointment; and

(d) Is appointed within 3 years after his separation from the Foreign Service, or he completed at least 3 years of substantially continuous service under one or more nontemporary appointments in the Foreign Service immediately before his separation from the unlimited, career-type appointment in that Service which may include the service that made him eligible for such appointment, or he is entitled to preference under section 2 of the Veterans' Preference Act of 1944, as amended [sections 1302 and 2108 of this title].

Sec. 2. (a) Except as provided in paragraph (b) of this section, a person appointed under Section 1 of this Order becomes a career conditional employee.

(b) A person appointed under Section 1 of this Order becomes a career employee when he:

(1) Has completed at least 3 years of substantially continuous service under one or more nontemporary appointments in the Foreign Service immediately before his separation from the unlimited, career-type appointment in that Service which may include the service that made him eligible for such appointment;

(2) Is appointed to a position in the competitive service required by law or Executive order to be filled on a permanent or career basis; or

(3) Has completed the service requirement for career tenure in the competitive service.

For the purpose of subparagraph (3) of this paragraph, service in the Foreign Service is creditable in meeting the service requirement only if the person concerned is appointed to a nontemporary position in the competitive service under Section 1 of this Order within 30 days after his separation from the Foreign Service.

Sec. 3. A person appointed to a nontemporary position in the competitive service under Section 1 of this Order acquires a competitive status automatically on appointment.

Sec. 4. Any law, Executive order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under Section 1 of this Order.

Sec. 5. For the purpose of this Order, a person is deemed to be a member of the "Foreign Service" if he was appointed in any agency under authority of the Foreign Service Act of 1946, as amended [former section 801 et seq. of Title 22, Foreign Relations and Intercourse], the Foreign Service Act of 1980 [section 3901 et seq. of Title 22], or legislation that supplements or replaces the latter Act.

Executive Order No. 11315

Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729, as amended by Ex. Ord. No. 12107, §2–101(a), Dec. 28, 1978, 44 F.R. 1055, added Civil Service Rule IX and amended Civil Service Rule VI, provided for transition to the full establishment of executive assignments under Rule IX, and delegated responsibility for the administration of the executive assignment system established by this Order to the Office of Personnel Management and heads of agencies affected by Rule IX. Civil Service Rule IX, as established by this Order, was revoked by Ex. Ord. No. 12748, §8(a), Feb. 1, 1991, 56 F.R. 4521, set out under section 5301 of this title.

Executive Order No. 11598

Ex. Ord. No. 11598, June 16, 1971, 36 F.R. 11711, formerly set out as a note under this section, which related to the listing of certain job vacancies by federal agencies and government contractors and subcontractors, was superseded by Ex. Ord. No. 11701, Jan. 24, 1973, 38 F.R. 2675, set out as a note under section 4212 of Title 38, Veterans' Benefits.

Executive Order No. 11813

Ex. Ord. No. 11813, Oct. 7, 1974, 39 F.R. 36317, which related to career or career-conditional appointments for cooperative education students, was revoked by Ex. Ord. No. 12015, Oct. 26, 1977, 42 F.R. 56947, formerly set out below.

Ex. Ord. No. 11955. Career or Career-Conditional Appointment to Certain Qualified Employees of National Aeronautics and Space Administration

Ex. Ord. No. 11955, Jan. 10, 1977, 42 F.R. 2499, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 3301 of title 5 of the United States Code [this section], and as President of the United States of America, it is hereby ordered as follows:

Section 1. The appointment of a Command Pilot, Pilot or Mission Specialist candidate to a position in the Space Shuttle Astronaut Program of the National Aeronautics and Space Administration, which is listed under Schedule B of the Schedule of Excepted Positions, may be converted to career or career-conditional appointment if:

(a) the candidate has successfully completed two years of service as a candidate in an appropriate training program;

(b) the Administrator of the National Aeronautics and Space Administration, or the Administrator's designee, recommends the conversion of the candidate's appointment within ninety days of completion of the requirements of section 1(a);

(c) the candidate meets noncompetitive examination standards prescribed by the Office of Personnel Management; and

(d) the candidate meets all other requirements prescribed by the Office of Personnel Management pursuant to section 3 of this order.

Sec. 2. Whenever the Administrator of the National Aeronautics and Space Administration, or the Administrator's designee, decides not to recommend conversion of an appointment under this order or whenever the Administrator, or the Administrator's designee, recommends conversion and the candidate fails to qualify, the candidate shall be separated not later than the date of expiration of the current Schedule B appointment, unless the appointment can be converted through appropriate competitive examination or the candidate can be assigned to a suitable position under another excepted authority prior to the expiration date.

Sec. 3. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purpose of this order.

Executive Order No. 12008

Ex. Ord. No. 12008, Aug. 25, 1977, 42 F.R. 43373, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, which established a Presidential Management Intern Program, was revoked by Ex. Ord. No. 12364, May 24, 1982, 47 F.R. 22931, formerly set out below.

Executive Order No. 12015

Ex. Ord. No. 12015, Oct. 26, 1977, 42 F.R. 56947, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 13024, Nov. 7, 1996, 61 F.R. 58125, which related to career or career-conditional appointments in competitive service for students completing approved career-related work-study programs, was revoked by Ex. Ord. No. 13562, §8(b), Dec. 27, 2010, 75 F.R. 82588, set out below, on the effective date of final regulations promulgated by the Director of OPM to implement the Internship Program [July 10, 2012, see 77 F.R. 28194].

Executive Order No. 12026

For provisions relating to eligibility for reinstatement in the competitive civil service of certain employees of the Energy Department, see Ex. Ord. No. 12026, Dec. 5, 1977, 42 F.R. 61849, set out as a note under section 7292 of Title 42, The Public Health and Welfare.

Executive Order No. 12257

Ex. Ord. No. 12257, Dec. 18, 1980, 45 F.R. 84005, which provided for noncompetitive conversion of participants in the Comprehensive Employment and Training Act program to career or career-conditional Civil Service status, was revoked by Ex. Ord. No. 12553, Feb. 25, 1986, 51 F.R. 7237.

Executive Order No. 12362

Ex. Ord. No. 12362, May 12, 1982, 47 F.R. 21231, as amended by Ex. Ord. No. 12585, Mar. 3, 1987, 52 F.R. 6773, which related to appointment to competitive status of certain overseas employees upon return to the United States, was revoked by Ex. Ord. No. 12721, July 30, 1990, 55 F.R. 31349, set out below.

Executive Order No. 12364

Ex. Ord. No. 12364, May 24, 1982, 47 F.R. 22931, as amended by Ex. Ord. No. 12645, July 12, 1988, 53 F.R. 26750, which related to the Presidential Management Intern Program, was superseded by Ex. Ord. No. 13318, Nov. 21, 2003, 68 F.R. 66317, formerly set out below.

Ex. Ord. No. 12505. Career Appointments to Certain Office of Management and Budget Employees

Ex. Ord. No. 12505, Feb. 12, 1985, 50 F.R. 6151, provided:

By the authority vested in me as President by the laws of the United States of America, including Section 3301 and 3302 of Title 5, and Section 521 of Title 31 of the United States Code, it is hereby ordered as follows:

Section 1. No later than April 1, 1985, any employee of the Office of Management and Budget serving under an appointment under Schedule A in a position not limited to one year or less, concerned with implementation of the President's paperwork reduction and regulatory review and planning programs, may have his or her appointment converted to a career or career-conditional appointment if the Director of the Office of Management and Budget determines that:

(a) The employee has completed at least one year of full-time continuous service in a position concerned with the paperwork reduction and regulatory program;

(b) There is a continuing need for the position filled by the employee;

(c) The employee's past performance has been satisfactory and the employee possesses the qualifications necessary to continue in the position; and

(d) The employee meets the citizenship requirements and qualification standards appropriate for the position.

Sec. 2. If the Director determines not to convert an employee's appointment to career or career-conditional status under the preceding Section, the employee shall be separated not later than the date of expiration of the current appointment.

Sec. 3. Employees whose appointments are converted under this Order shall become career-conditional employees, or career employees if they have completed the service requirements for career tenure, and all converted employees shall acquire a competitive status.

Ronald Reagan.      

Executive Order No. 12596

Ex. Ord. No. 12596, May 7, 1987, 52 F.R. 17537, which provided for noncompetitive conversion to career status of certain employees in professional and administrative career positions, was revoked by Ex. Ord. No. 13162, July 6, 2000, 65 F.R. 43212, set out as a note below.

Ex. Ord. No. 12685. Noncompetitive Conversion of Personal Assistants to Employees With Disabilities

Ex. Ord. No. 12685, July 28, 1989, 54 F.R. 31796, provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Upon recommendation by the employing agency, and subject to qualifications and other requirements prescribed by the Office of Personnel Management, an employee in a position in the excepted service under 5 C.F.R. 213.3102(11) as a reader, interpreter, or personal assistant for a handicapped employee, whose employment in such position is no longer necessary and who has completed at least 1 year of satisfactory service in such position under a non-temporary appointment, may be converted noncompetitively to a career or career-conditional appointment.

Sec. 2. This order shall be effective upon publication in the Federal Register.

George Bush.      

Ex. Ord. No. 12718. President's Advisory Commission on the Public Service

Ex. Ord. No. 12718, June 29, 1990, 55 F.R. 27451, provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Federal Advisory Committee Act, as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], and in order to provide a continuing source of advice on the public service from outstanding leaders in various walks of private life, it is hereby ordered as follows:

Section 1. Establishment. The President's Advisory Commission on the Public Service ("Commission") is hereby established. The Commission shall be comprised of 13 members to be appointed by the President from among leading citizens in private life. The members shall be appointed for 2-year terms, except that initial appointments shall include six members appointed to serve 1-year terms. Any vacancy in the Commission shall be filled by an appointment for the remainder of the term for which the original appointment was made, and a member whose term has expired may serve until his or her successor has been appointed. The President shall designate one of the members of the Commission to serve as Chairperson.

Sec. 2. Functions. (a) The Commission shall meet from time to time at the request of the Chairperson and shall consider ways to enhance the public service in American life, including:

(1) improving the efficiency and attractiveness of the Federal civil service;

(2) increasing the interest among American students in pursuing careers in the public service; and

(3) strengthening the image of the public service in American life.

(b) The Commission shall submit a report on its activities to the Director of the Office of Personnel Management and the President each year.

Sec. 3. Administrative Provisions. (a) The members of the Commission shall serve without compensation, but may receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(b) All executive agencies are directed, to the extent permitted by law, to provide such information, advice, and assistance to the Commission as the Commission may request.

(c) The Director of the Office of Personnel Management shall, to the extent permitted by law and subject to the availability of funds, provide the Commission with administrative services, staff support, and necessary expenses.

Sec. 4. General. Notwithstanding any other Executive order, the functions of the President under the Federal Advisory Committee Act, as amended [see 5 U.S.C. 1001 et seq.], except that of reporting to the Congress, which are applicable to the Commission, shall be performed by the Office of Personnel Management in accordance with the guidelines and procedures established by the Administrator of General Services.

George Bush.      

Ex. Ord. No. 12721. Eligibility of Overseas Employees for Noncompetitive Appointments

Ex. Ord. No. 12721, July 30, 1990, 55 F.R. 31349, provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, including sections 3301 and 3302 of title 5 and section 301 of title 3 of the United States Code, and in order to permit certain overseas employees to acquire competitive status upon returning to the United States, it is hereby ordered as follows:

Section 1. A United States citizen who is a family member of a Federal civilian employee, of a nonappropriated fund employee, or of a member of a uniformed service and who meets the qualifications and other requirements established by the Director of the Office of Personnel Management, including an appropriate period of satisfactory service under one or more overseas appointments in the excepted or competitive civil service, may be appointed noncompetitively to a competitive service position in the executive branch within the United States (including Guam, Puerto Rico, and the Virgin Islands). The employing agency in the United States may waive a requirement for a written test for an individual appointed under this order if the agency determines that the duties and responsibilities of the position occupied overseas were similar enough to those of the position to which the individual is being appointed under this order to make the written test unnecessary.

Sec. 2. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.

Sec. 3. To the extent there is any conflict between this order and Civil Service Rule 8.2 (5 CFR 8.2), the provisions of this order shall control.

Sec. 4. (a) Executive Order No. 12362 of May 12, 1982, as amended, and Executive Order No. 12585 of March 3, 1987, are revoked.

(b) Existing regulations prescribed by the Director of the Office of Personnel Management under Executive Order No. 12362, as amended, shall continue in effect until modified or superseded by the Director of the Office of Personnel Management.

Sec. 5. This order shall be effective upon publication in the Federal Register.

George Bush.      

Ex. Ord. No. 13124. Amending the Civil Service Rules Relating To Federal Employees With Psychiatric Disabilities

Ex. Ord. No. 13124, June 4, 1999, 64 F.R. 31103, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and in order to give individuals with psychiatric disabilities the same hiring opportunities as persons with severe physical disabilities or mental retardation under the Civil Service Rules, and to permit individuals with psychiatric disabilities to obtain Civil Service competitive status, it is hereby ordered as follows:

Section 1. Policy.

(a) It is the policy of the United States to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities. The Federal Government as an employer should serve as a model for the employment of persons with disabilities and utilize the full potential of these talented citizens.

(b) The Civil Service Rules governing appointment of persons with psychiatric disabilities were adopted years ago when attitudes about mental illness were different than they are today, which led to stricter standards for hiring persons with psychiatric disabilities than for persons with mental retardation or severe physical disabilities. The Civil Service Rules provide that persons with mental retardation, severe physical disabilities, or psychiatric disabilities may be hired under excepted appointing authorities. While persons with mental retardation or severe physical disabilities may be appointed for more than 2 years and may convert to competitive status after completion of 2 years of satisfactory service in their excepted position, people with psychiatric disabilities may not.

(c) The Office of Personnel Management (OPM) and the President's Task Force on Employment of Adults with Disabilities believe that the Federal Government could better benefit from the contributions of persons with psychiatric disabilities if they were given the same opportunities available to people with mental retardation or severe physical disabilities.

Sec. 2. Implementation.

(a) The Director of the Office of Personnel Management shall, consistent with OPM authority, provide that persons with psychiatric disabilities are subject to the same hiring rules as persons with mental retardation or severe physical disabilities.

(b) [Amended Civil Service Rule III.]

Sec. 3. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.

William J. Clinton.      

Executive Order No. 13162

Ex. Ord. No. 13162, July 6, 2000, 65 F.R. 43211, which established the Federal Career Intern Program and provided for its oversight by the Office of Personnel Management, was revoked, effective Mar. 1, 2011, by Ex. Ord. No. 13562, §8(a), Dec. 27, 2010, 75 F.R. 82588, set out as a note below.

Executive Order No. 13318

Ex. Ord. No. 13318, Nov. 21, 2003, 68 F.R. 66317, which related to the Presidential Management Fellows Program, was revoked by Ex. Ord. No. 13562, §8(c), Dec. 27, 2010, 75 F.R. 82588, set out below, on the effective date of final regulations promulgated by the Director of OPM to implement required changes to the PMF Program [July 10, 2012, see 77 F.R. 28194].

Ex. Ord. No. 13473. To Authorize Certain Noncompetitive Appointments in the Civil Service for Spouses of Certain Members of the Armed Forces

Ex. Ord. No. 13473, Sept. 25, 2008, 73 F.R. 56703, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy. It shall be the policy of the United States to provide for the appropriately expedited recruitment and selection of spouses of members of the Armed Forces for appointment to positions in the competitive service of the Federal civil service as part of the effort of the United States to recruit and retain in military service, skilled and experienced members of the Armed Forces and to recognize and honor the service of such members injured, disabled, or killed in connection with their service.

Sec. 2. Definitions. As used in this order:

(a) the term "agency" has the meaning specified for the term "executive agency" in section 105 of title 5, United States Code, but does not include the Government Accountability Office;

(b) the term "Armed Forces" has the meaning specified for that term in section 101 of title 10, United States Code;

(c) the term "active duty" means full-time duty in an armed force and includes full-time National Guard duty, except that, for Reserve Component members, the term "active duty" does not include training duties or attendance at service schools.

(d) the term "permanent change of station" means the assignment, detail, or transfer of a member of the Armed Forces serving at a present permanent duty station to a different permanent duty station under a competent authorization or order that does not:

(i) specify the duty as temporary;

(ii) provide for assignment, detail, or transfer, after that different permanent duty station, to a further different permanent duty station; or (iii) [sic] direct return to the present permanent duty station; and

(e) the term "totally disabled retired or separated member" means a member of the Armed Forces who:

(i) retired under chapter 61 of title 10, United States Code, with a disability rating at the time of retirement of 100 per cent; or (ii) [sic] retired or separated from the Armed Forces and has a disability rating of 100 percent from the Department of Veterans Affairs.

Sec. 3. Noncompetitive Appointment Authority. Consistent with the policy set forth in section 1 of this order and such regulations as the Director of the Office of Personnel Management may prescribe, the head of an agency may make a noncompetitive appointment to any position in the competitive service, for which the individual is qualified, of an individual who is:

(a) the spouse of a member of the Armed Forces who, as determined by the Secretary of Defense, is performing active duty pursuant to orders that authorize a permanent change of station move, if such spouse relocates to the member's new permanent duty station;

(b) the spouse of a totally disabled retired or separated member of the Armed Forces; or

(c) the unremarried widow or widower of a member of the Armed Forces killed while performing active duty.

Sec. 4. Administrative Provisions. The heads of agencies shall employ, as appropriate, appointment authority available to them, in addition to the authority granted by section 3 of this order, to carry out the policy set forth in section 1.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; and

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative functions.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

George W. Bush.      

Ex. Ord. No. 13518. Employment of Veterans in the Federal Government

Ex. Ord. No. 13518, Nov. 9, 2009, 74 F.R. 58533, provided:

By the authority vested in me by the Constitution and the laws of the United States of America, including section 301 of title 3 of the United States Code, I hereby order as follows:

Section 1. Policy. Veterans have served and sacrificed in defense of our Nation. When they complete their service, we must do everything in our power to assist them in re-entering civilian life and finding employment. Government as well as private employers should play a prominent role in helping veterans who may be struggling to find jobs. As one of the Nation's leading employers, the Federal Government is in need of highly skilled individuals to meet agency staffing needs and to support mission objectives. Our veterans, who have benefited from training and development during their military service, possess a wide variety of skills and experiences, as well as the motivation for public service, that will help fulfill Federal agencies' staffing needs. It is therefore the policy of my Administration to enhance recruitment of and promote employment opportunities for veterans within the executive branch, consistent with merit system principles and veterans' preferences prescribed by law. The Federal Government will thereby help lead by example in promoting veterans' employment.

Sec. 2. Council on Veterans Employment. There is hereby established an interagency Council on Veterans Employment (Council), to be co-chaired by the Secretaries of Labor and Veterans Affairs. The Director of the Office of Personnel Management (OPM) shall serve as Vice Chair of the Council.

(a) Mission and Function of the Council. The Council shall:

(i) advise and assist the President and the Director of OPM in establishing a coordinated Government-wide effort to increase the number of veterans employed by the Federal Government by enhancing recruitment and training;

(ii) serve as a national forum for promoting veterans' employment opportunities in the executive branch; and

(iii) establish performance measures to assess the effectiveness of, and submit an annual report to the President on the status of, the Veterans Employment Initiative described in section 3 of this order.

(b) Membership of the Council. The Council shall consist of the heads of the following agencies and such other executive branch agencies as the President may designate:

(i) the Department of State;

(ii) the Department of the Treasury;

(iii) the Department of Defense;

(iv) the Department of Justice;

(v) the Department of the Interior;

(vi) the Department of Agriculture;

(vii) the Department of Commerce;

(viii) the Department of Labor;

(ix) the Department of Health and Human Services;

(x) the Department of Housing and Urban Development;

(xi) the Department of Transportation;

(xii) the Department of Energy;

(xiii) the Department of Education;

(xiv) the Department of Veterans Affairs;

(xv) the Department of Homeland Security;

(xvi) the Environmental Protection Agency;

(xvii) the National Aeronautics and Space Administration;

(xviii) the Agency for International Development;

(xix) the General Services Administration;

(xx) the National Science Foundation;

(xxi) the Nuclear Regulatory Commission;

(xxii) the Office of Personnel Management;

(xxiii) the Small Business Administration; and

(xxiv) the Social Security Administration.

A member of the Council may designate, to perform the Council functions of the member, a senior official who is part of the member's agency, and who is a full-time officer or employee of the Federal Government.

(c) Administration of the Council. The Co-Chairs shall convene meetings of the Council, determine its agenda, and direct its work. At the direction of the Co-Chairs, the Council may establish subgroups consisting exclusively of Council members or their designees, as appropriate. The Vice Chair shall designate an Executive Director for the Council to support the Vice Chair in managing the Council's activities. The OPM shall provide administrative support for the Council to the extent permitted by law and within existing appropriations.

(d) Steering Committee. There is established within the Council a Steering Committee consisting of the Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security, the Director of OPM, and any other Council member designated by the Co-Chairs. The Steering Committee shall be responsible for providing leadership, accountability, and strategic direction to the Council.

Sec. 3. Veterans Employment Initiative. The agencies represented on the Council shall participate in a Veterans Employment Initiative (Initiative). Under the Initiative, each participating agency shall, to the extent permitted by law:

(a) develop an agency-specific Operational Plan for promoting employment opportunities for veterans, consistent with the Government-wide Veterans Recruitment and Employment Strategic Plan described in section 4 of this order, merit system principles, the agency's strategic human capital plan, and other applicable workforce planning strategies and initiatives;

(b) within 120 days of the date of this order, establish a Veterans Employment Program Office, or designate an agency officer or employee with full-time responsibility for its Veterans Employment Program, to be responsible for enhancing employment opportunities for veterans within the agency, consistent with law and merit system principles, including developing and implementing the agency's Operational Plan, veterans recruitment programs, and training programs for veterans with disabilities, and for coordinating employment counseling to help match the career aspirations of veterans to the needs of the agency;

(c) provide mandatory annual training to agency human resources personnel and hiring managers concerning veterans' employment, including training on veterans' preferences and special authorities for the hiring of veterans;

(d) identify key occupations for which the agency will provide job counseling and training to better enable veterans to meet agency staffing needs associated with those occupations; and

(e) coordinate with the Departments of Defense and Veterans Affairs to promote further development and application of technology designed to assist transitioning service members and veterans with disabilities.

Sec. 4. Additional Responsibilities of the Director of the Office of Personnel Management. The Director of OPM shall, in consultation with the Council and to the extent permitted by law:

(a) develop a Government-wide Veterans Recruitment and Employment Strategic Plan, to be updated at least every 3 years, addressing barriers to the employment of veterans in the executive branch and focusing on:

(i) identifying actions that agency leaders should take to improve employment opportunities for veterans;

(ii) developing the skills of transitioning military service members and veterans;

(iii) marketing the Federal Government as an employer of choice to transitioning service members and veterans;

(iv) marketing the talent, experience, and dedication of transitioning service members and veterans to Federal agencies; and

(v) disseminating Federal employment information to veterans and hiring officials;

(b) provide Government-wide leadership in recruitment and employment of veterans in the executive branch;

(c) identify key occupations, focusing on positions in high-demand occupations where talent is needed to meet Government-wide staffing needs, for which the Federal Government will provide job counseling and training under section 5(a) of this order to veterans and transitioning military service personnel;

(d) develop mandatory training for both human resources personnel and hiring managers on veterans' employment, including veterans' preference and special hiring authorities;

(e) compile and post on the OPM website Government-wide statistics on the hiring of veterans; and

(f) within 1 year of the date of this order and with the advice of the Council, provide recommendations to the President on improving the ability of veterans' preference laws to meet the needs of the new generation of veterans, especially those transitioning from the conflicts in Iraq and Afghanistan, and the needs of Federal hiring officials.

Sec. 5. Responsibilities of the Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security. The Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security shall take the following actions, to the extent permitted by law:

(a) The Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security shall, in consultation with OPM, develop and implement counseling and training programs to align veterans' and transitioning service members' skills and career aspirations to Federal employment opportunities, targeting Federal occupations that are projected to have heavy recruitment needs.

(b) The Secretary of Labor shall conduct employment workshops for veterans and transitioning military service personnel as part of the Transition Assistance Program (TAP), and integrate in those workshops information about the Federal hiring process, veterans' preference laws, special hiring authorities, and Federal job opportunities.

(c) The Secretary of Defense and Secretary of Homeland Security (with respect to the Coast Guard) shall:

(i) reinforce military leadership's commitment and support of the service members' transition process; and

(ii) institute policies that encourage every eligible service member to take the opportunity to enroll in any or all of the four components of the TAP.

(d) The Secretaries of Labor and Veterans Affairs shall:

(i) assist veterans and transitioning service members in translating military skills, training, and education to Federal occupations through programs developed under subsection (a) of this section; and

(ii) provide training to employment and rehabilitation counselors on the Federal hiring process, veterans' preferences, special hiring authorities, and identifying Federal employment opportunities for veterans.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13562. Recruiting and Hiring Students and Recent Graduates

Ex. Ord. No. 13562, Dec. 27, 2010, 75 F.R. 82585, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives. The existing competitive hiring process for the Federal civil service, however, is structured in a manner that, even at the entry level, favors job applicants who have significant previous work experience. This structure, along with the complexity of the rules governing admission to the career civil service, creates a barrier to recruiting and hiring students and recent graduates. It places the Federal Government at a competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.

To compete effectively for students and recent graduates, the Federal Government must improve its recruiting efforts; offer clear paths to Federal internships for students from high school through post-graduate school; offer clear paths to civil service careers for recent graduates; and provide meaningful training, mentoring, and career-development opportunities. Further, exposing students and recent graduates to Federal jobs through internships and similar programs attracts them to careers in the Federal Government and enables agency employers to evaluate them on the job to determine whether they are likely to have successful careers in Government.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration (specifically, the need to promote employment opportunities for students and recent graduates in the Federal workforce) make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. Establishment. There are hereby established the Internship Program and the Recent Graduates Program, which, along with the Presidential Management Fellows Program, as modified herein, shall collectively be known as the Pathways Programs. I therefore direct the Director of the Office of Personnel Management (OPM) to issue regulations implementing the Pathways Programs consistent with this order, including:

(a) a description of the positions that executive departments and agencies (agencies) may fill through the Pathways Programs because conditions of good administration necessitate excepting those positions from the competitive hiring rules;

(b) rules governing whether, to what extent, and in what manner public notice should be provided of job opportunities in the Pathways Programs;

(c) a description of career-development, training, and mentorship opportunities for participants in the Pathways Programs;

(d) requirements that managers meaningfully assess the performance of participants in the Pathways Programs to identify those who should be considered for conversion to career civil service positions;

(e) a description of OPM oversight of agency use of the Pathways Programs to ensure that (i) they serve as a supplement to, and not a substitute for, the competitive hiring process, and (ii) agencies are using the Pathways Programs in a genuine effort to develop talent for careers in the civil service;

(f) a description of OPM plans to evaluate agencies' effectiveness in recruiting and retaining talent using the Pathways Programs and of the satisfaction of Pathways Programs participants and their hiring managers; and

(g) standard naming conventions across agencies, so that students and recent graduates can clearly understand and compare the career pathway opportunities available to them in the Federal Government.

Sec. 3. Internship Program. The Internship Program shall provide students in high schools, community colleges, 4-year colleges, trade schools, career and technical education programs, and other qualifying educational institutions and programs, as determined by OPM, with paid opportunities to work in agencies and explore Federal careers while still in school. The Internship Program would replace the existing Student Career Experience Program, established pursuant to Executive Order 12015 of October 26, 1977. The following principles and policies shall govern the Internship Program:

(a) Participants in the program shall be referred to as "Interns" and shall be students enrolled, or accepted for enrollment, in qualifying educational institutions and programs, as determined by OPM.

(b) Subject to any exceptions OPM may establish by regulation, agencies shall provide Interns with meaningful developmental work and set clear expectations regarding the work experience of the intern.

(c) Students employed by third-party internship providers but placed in agencies may, to the extent permitted by OPM regulations, be treated as participants in the Internship Program.

Sec. 4. Recent Graduates Program. The Recent Graduates Program shall provide individuals who have recently graduated from qualifying educational institutions or programs with developmental experiences in the Federal Government intended to promote possible careers in the civil service. The following principles and policies shall govern the Recent Graduates Program:

(a) Participants in the program shall be referred to as "Recent Graduates" and must have obtained a qualifying degree, or completed a qualifying career or technical education program, as determined by OPM, within the preceding 2 years, except that veterans who, due to their military service obligation, were precluded from participating in the Recent Graduates Program during the 2-year period after obtaining a qualifying degree or completing a qualifying program shall be eligible to participate in the Program within 6 years of obtaining a qualifying degree or completing a qualifying program.

(b) Responsibilities assigned to a Recent Graduate shall be consistent with his or her qualifications, educational background, and career interests, the purpose of the Recent Graduates Program, and agency needs.

Sec. 5. Presidential Management Fellows Program. The Presidential Management Fellows (PMF) Program is an existing program established pursuant to Executive Order 13318 of November 21, 2003, that aims to attract to the Federal service outstanding men and women from a variety of academic disciplines at the graduate level who have a clear interest in, and commitment to, the leadership and management of public policies and programs. The following requirements shall govern the PMF Program upon the revocation of Executive Order 13318, as provided in section 8 of this order:

(a) Participants in this program shall continue to be known as Presidential Management Fellows (PMFs or Fellows) and must have received, within the preceding 2 years, a qualifying advanced degree, as determined by OPM.

(b) Responsibilities assigned to a PMF shall be consistent with the PMF's qualifications, educational background, and career interests, the purposes of the PMF Program, and agency needs.

(c) OPM shall establish the eligibility requirements and minimum qualifications for the program, as well as a process for assessing eligible individuals for consideration for appointment as PMFs.

Sec. 6. Appointment and Conversion. (a) Appointments to any of the Pathways Programs shall be under Schedule D of the excepted service, as established by section 7 of this order.

(b) Appointments to the Recent Graduates or PMF Programs shall not exceed 2 years, unless extended by the employing agency for up to 120 days thereafter.

(c) Appointment to a Pathways Program shall confer no right to further Federal employment in either the competitive or excepted service upon the expiration of the appointment, except that agencies may convert eligible participants noncompetitively to term, career, or career conditional appointments after satisfying requirements to be established by OPM, and agencies may noncompetitively convert participants who were initially converted to a term appointment under this section to a career or career-conditional appointment before the term appointment expires.

Sec. 7. Implementation. (a) [Amended Civil Service Rule VI.]

(b) The Director of OPM shall:

(i) promulgate such regulations as the Director determines may be necessary to implement this order;

(ii) provide oversight of the Pathways Programs;

(iii) establish, if appropriate, a Government-wide cap on the number of noncompetitive conversions to the competitive service of Interns, Recent Graduates, or PMFs (or a Government-wide combined conversion cap applicable to all three categories together);

(iv) administer, and review and revise annually or as needed, any Government-wide cap established pursuant to this subsection;

(v) provide guidance on conducting an orderly transition from existing student and internship programs to the Pathways Programs established pursuant to this order; and

(vi) consider for publication in the Federal Register at an appropriate time a proposed rule seeking public comment on the elimination of the Student Temporary Employment Program, established through OPM regulations at 5 CFR 213.3202(a).

(c) In accordance with regulations prescribed pursuant to this order and applicable law, agencies shall:

(i) use appropriate merit-based procedures for recruitment, assessment, placement, and ongoing career development for participants in the Pathways Programs;

(ii) provide for equal employment opportunity in the Pathways Programs without regard to race, ethnicity, color, religion, sex, national origin, age, disability, sexual orientation, or any other non-merit-based factor;

(iii) apply veterans' preference criteria; and

(iv) within 45 days of the date of this order, designate a Pathways Programs Officer (at the agency level, or at bureaus or components within the agency) to administer Pathways Programs, to serve as liaison with OPM, and to report to OPM on the implementation of the Pathways Programs and the individuals hired under them.

Sec. 8. Prior Executive Orders. (a) Effective March 1, 2011, Executive Order 13162 (Federal Career Intern Program) is superseded and revoked. Any individuals serving in appointments under that order on March 1, 2011, shall be converted to the competitive service, effective on that date, with no loss of pay or benefits.

(b) On the effective date of final regulations promulgated by the Director of OPM to implement the Internship Program, Executive Order 12015 (pursuant to which the Student Career Experience Program was established), as amended, is superseded and revoked.

(c) On the effective date of final regulations promulgated by the Director of OPM to implement changes to the PMF Program required by this order, Executive Order 13318 (Presidential Management Fellows Program), as amended, is superseded and revoked.

Sec. 9. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law, regulation, Executive Order, or Presidential Directive to an executive department, agency, or head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13678. Conversion Authority for Criminal Investigators (Special Agents) of the Bureau of Alcohol, Tobacco, Firearms, and Explosives

Ex. Ord. No. 13678, Oct. 3, 2014, 79 F.R. 60949, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Providing Conversion Authority. I find that conditions of good administration (specifically, the need to make the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice (ATF), competitive in recruiting high quality special agents by giving the ATF an authority held by other Federal law enforcement agencies) make necessary an exception to the competitive examination rules for appointment to certain positions in the Federal civil service.

Criminal Investigators of the ATF, who have been appointed under Schedule B, and who have completed 3 years of fully satisfactory service, may be converted non-competitively to career appointments if they meet qualifications and other requirements established by the Director of the Office of Personnel Management.

Sec. 2. Implementation. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.

Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13704. Presidential Innovation Fellows Program

Ex. Ord. No. 13704, Aug. 17, 2015, 80 F.R. 50751, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is in the national interest for the Federal Government to attract the brightest minds skilled in technology or innovative practices to serve in the Federal Government to work on some of the Nation's biggest and most pressing challenges. This order establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Federal Government and work in close cooperation with Federal Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Federal Government serves the American people.

Sec. 2. Establishment and Administration. (a) The Administrator of General Services (Administrator) shall establish the Presidential Innovation Fellows Program (Program) to enable exceptional individuals with proven track records to serve time-limited appointments in executive branch departments and agencies (agencies) to address some of the Nation's most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology. Individuals selected for the Program shall be known as Presidential Innovation Fellows (Fellows).

(b) The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration (GSA). GSA shall provide necessary staff, resources and administrative support for the Program to the extent permitted by law and within existing appropriations.

(c) GSA shall appoint the Fellows and, in cooperation with agencies, shall facilitate placement of the Fellows to participate in projects that have the potential for significant positive effects and are consistent with the President's goals.

Sec. 3. Advisory Board. (a) The Administrator shall establish an Advisory Board to advise the Director by recommending such priorities and standards as may be beneficial to fulfill the mission of the Program and assist in identifying potential projects and placements for Fellows. The Advisory Board will not participate in the Fellows' selection process.

(b) The Administrator will designate a representative to serve as the Chair of the Advisory Board. In addition to the Chair, the membership of the Advisory Board shall include the Deputy Director for Management of the Office of Management and Budget, the Director of the Office of Personnel Management, the Office of Management and Budget's Administrator of the Office of Electronic Government, and the Assistant to the President and Chief Technology Officer, or their designees and such other persons as may be designated by the Administrator. Consistent with law, the Advisory Board may consult with industry, academia, or non-profits to ensure the Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation's most significant challenges.

Sec. 4. Application Process. (a) The Director, in accordance with applicable law, shall prescribe the process for applications and nominations of individuals to the Program.

(b) Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Government-wide cap on the number of Fellows.

The Director shall establish and publish salary ranges, benefits, and standards for the Program.

Sec. 5. Selection, Appointment, and Assignment of Fellows. (a) The Director, in accordance with applicable law, shall prescribe appropriate procedures for the selection, appointment, and assignment of Fellows.

(b) Prior to the selection of Fellows, the Director will consult with agencies and executive branch departments, regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as Fellows.

(c) The Fellows shall serve under short-term, time-limited appointments. As a general matter, they shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing Fellows at requesting agencies and executive branch departments.

Sec. 6. Responsibilities of Agencies. Each executive branch department or agency, as defined in section 105 of title 5, United States Code, is encouraged to work with the Director and Advisory Board to attempt to maximize the Program's benefits to the department or agency and the Federal Government, including by identifying initiatives that will have a meaningful effect on the people served and that will benefit from involvement by one or more Fellows. Departments and agencies also are encouraged to ensure that each Fellow will work closely with responsible senior officials for the duration of the assignment.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13749. Providing for the Appointment in the Competitive Service of Certain Employees of the Foreign Service

Ex. Ord. No. 13749, Nov. 29, 2016, 81 F.R. 87391, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The recruitment and retention of workforce participants who serve in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, Public Law 96–465 (22 U.S.C. 3949), as amended, are critical to our ability to meet consular staffing levels (now in substantial deficit) and thereby enhance our capacity to meet high national security standards and efficiently process visas in accordance with our policy of "open doors, safe borders." Program participants undergo a rigorous merit-based evaluation process, which includes a written test and an oral assessment and to which a veteran preference applies, and develop advanced- to superior-level skills in languages and in cultural competence in particular regions, skills that are essential for mission-critical positions throughout the entire Federal workforce.

Executive Order 13597 of January 19, 2012, sought to ensure that 80 percent of nonimmigrant visa applicants be interviewed within three weeks of receiving an application. The Department of State's ability to maintain this 80 percent benchmark will come under increasing pressure in the future given current and projected staffing shortfalls through 2023. These staffing gaps could adversely affect the Department of State's ability to sustain border security and immigration control at peak efficiency and effectiveness, which will have effects on tourism, job creation, and U.S. economic growth. Use of the Limited Non-Career Appointment hiring authority will provide flexibility to address, for the foreseeable future, both this increased demand and recurring institutional and national needs across the Federal Government.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. The head of any agency in the executive branch may appoint in the competitive service an individual who served for at least 48 months of continuous service in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.

Sec. 3. In order to be eligible for noncompetitive appointment to positions under section 2 of this order, such an individual must:

(a) have received a satisfactory or better performance rating (or equivalent) for service under the qualifying Limited Non-Career Appointment; and

(b) exercise the eligibility for noncompetitive appointment within a period of 1 year after completion of the qualifying Limited Non-Career Appointment. Such period may be extended to not more than 3 years in the case of persons who, following such service, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities that, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.

Sec. 4. A person appointed under section 2 of this order shall become a career conditional employee.

Sec. 5. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under section 2 of this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act [of 1978], 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.

Sec. 6. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive eligibility with or without additional regulations.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13750. Providing for the Appointment of Alumni of the Fulbright U.S. Student Program, the Benjamin A. Gilman International Scholarship Program, and the Critical Language Scholarship Program to the Competitive Service

Ex. Ord. No. 13750, Nov. 29, 2016, 81 F.R. 87393, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The issuance of an order granting Non-Competitive Eligibility (NCE) to certain alumni of the Fulbright U.S. Student Program, the Benjamin A. Gilman International Scholarship Program, and the Critical Language Scholarship (CLS) Program, all of which are academic exchange programs carried out under the authorities of the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87–256, as amended, also known as the Fulbright-Hays Act, and the International Academic Opportunity Act of 2000, title III of Public Law 106–309, would be in the best interest of the Federal Government. Participants in these programs develop advanced- to superior-level skills in languages and cultural competence in regions that are strategically, diplomatically, and economically important to the United States. It is in the interest of the Federal Government to retain the services of these highly skilled individuals, particularly given that the Federal Government aided them in the acquisition of their skills. Participants in the Fulbright, Gilman, and CLS programs are drawn from highly competitive, merit-based national selection processes to which a veterans' preference applies to ensure that the most qualified individuals are selected.

Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that is drawn from all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.

Sec. 2. Establishment. The head of any agency in the executive branch may appoint in the competitive service any person who is certified by the Secretary of State or designee as having participated successfully in the Fulbright, Gilman, or CLS international exchange programs, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.

Sec. 3. The Secretary of State or designee shall issue certificates, upon request, to persons whom the Department of State determines have completed the requirements of a program described in section 1 of this order.

Sec. 4. Any appointment under this order shall be effected within a period of 1 year after completion of the appointee's participation in the programs described in section 1. Such period may be extended to not more than 3 years for persons who, following participation in the programs described in section 1, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities which, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.

Sec. 5. A person appointed under section 2 of this order becomes a career conditional employee.

Sec. 6. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify an applicant for appointment under this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act [of 1978], 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.

Sec. 7. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive hiring with or without additional regulations.

Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Ex. Ord. No. 13842. Establishing an Exception to Competitive Examining Rules for Appointment to Certain Positions in the United States Marshals Service, Department of Justice

Ex. Ord. No. 13842, July 10, 2018, 83 F.R. 32753, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Providing Appointment Authority. (a) Good administration of the executive branch necessitates that the U.S. Marshals Service (USMS), a component of the Department of Justice, have a hiring authority that is currently available to other Federal law enforcement agencies and that would, among other things, enable the USMS to be competitive in recruiting high-quality Deputy U.S. Marshals and Criminal Investigators, to better hire and retain qualified individuals in certain duty locations, and to more expeditiously fill vacant positions consistent with law enforcement needs. Accordingly, it is appropriate to place Deputy U.S. Marshals and Criminal Investigators of the USMS in Schedule B of the excepted service, as it is impracticable to hold open competition or to apply usual competitive examining procedures for those positions related to Federal law enforcement.

(b) Appointments to the positions identified in subsection (a) of this section:

(i) may not be made to positions of a confidential or policy-determining character or to positions in the Senior Executive Service; and

(ii) shall constitute Schedule B appointments that are:

(A) excepted from the competitive service; and

(B) subject to laws and regulations governing Schedule B appointments, including basic qualification standards established by the Director of the Office of Personnel Management (Director) for the applicable occupation and grade level.

Sec. 2. Providing Conversion Authority. (a) Deputy U.S. Marshals and Criminal Investigators of the USMS appointed under Schedule B may, upon completion of 3 years of substantially continuous, fully satisfactory service, be converted non-competitively to career appointments, provided they meet the qualifications and other requirements established by the Director.

(b) The Director shall prescribe such regulations as may be necessary to implement this order.

Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Ex. Ord. No. 13843. Excepting Administrative Law Judges From the Competitive Service

Ex. Ord. No. 13843, July 10, 2018, 83 F.R. 32755, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Policy. The Federal Government benefits from a professional cadre of administrative law judges (ALJs) appointed under section 3105 of title 5, United States Code, who are impartial and committed to the rule of law. As illustrated by the Supreme Court's recent decision in Lucia v. Securities and Exchange Commission, No. 17–130 (June 21, 2018), ALJs are often called upon to discharge significant duties and exercise significant discretion in conducting proceedings under the laws of the United States. As part of their adjudications, ALJs interact with the public on issues of significance. Especially given the importance of the functions they discharge—which may range from taking testimony and conducting trials to ruling on the admissibility of evidence and enforcing compliance with their orders—ALJs must display appropriate temperament, legal acumen, impartiality, and sound judgment. They must also clearly communicate their decisions to the parties who appear before them, the agencies that oversee them, and the public that entrusts them with authority.

Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures. The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve. Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some—and perhaps all—ALJs are "Officers of the United States" and thus subject to the Constitution's Appointments Clause, which governs who may appoint such officials.

As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.

Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures. Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised. This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the significant authority conferred on ALJs, and each agency should be able to assess them without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency's particular needs. This change will also promote confidence in, and the durability of, agency adjudications.

Sec. 2. Excepted Service. Appointments of ALJs shall be made under Schedule E of the excepted service, as established by section 3 of this order.

Sec. 3. Implementation. (a) [Amended Civil Service Rule VI.]

(b) The Director of the Office of Personnel Management (Director) shall:

(i) adopt such regulations as the Director determines may be necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of, this order, giving particular attention to 5 CFR, part 212, subpart D; 5 CFR, part 213, subparts A and C; 5 CFR 302.101; and 5 CFR, part 930, subpart B; and

(ii) provide guidance on conducting a swift, orderly transition from the existing appointment process for ALJs to the Schedule E process established by this order.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Ex. Ord. No. 13932. Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates

Ex. Ord. No. 13932, June 26, 2020, 85 F.R. 39457, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, and sections 1104(a)(1), 3301, and 7301 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Purpose. The foundation of our professional merit-based civil service is the principle that employment and advancement rest on the ability of individuals to fulfill their responsibilities in service to the American public. Accordingly, Federal Government employment opportunities should be filled based on merit. Policies or practices that undermine public confidence in the hiring process undermine confidence in both the civil service and the Government.

America's private employers have modernized their recruitment practices to better identify and secure talent through skills- and competency-based hiring. As the modern workforce evolves, the Federal Government requires a more efficient approach to hiring. Employers adopting skills- and competency-based hiring recognize that an overreliance on college degrees excludes capable candidates and undermines labor-market efficiencies. Degree-based hiring is especially likely to exclude qualified candidates for jobs related to emerging technologies and those with weak connections between educational attainment and the skills or competencies required to perform them. Moreover, unnecessary obstacles to opportunity disproportionately burden low-income Americans and decrease economic mobility.

The Office of Personnel Management (OPM) oversees most aspects of the civilian Federal workforce, including creating and maintaining the General Schedule classification system and determining the duties, responsibilities, and qualification requirements for Federal jobs. Executive departments and agencies (agencies), however, are responsible for vetting and selecting specific candidates to fill particular job openings consistent with statutory requirements and OPM rules and guidance, including applicable minimum educational requirements. Currently, for most Federal jobs, traditional education—high school, college, or graduate-level—rather than experiential learning is either an absolute requirement or the only path to consideration for candidates without many years of experience. As a result, Federal hiring practices currently lag behind those of private sector leaders in securing talent based on skills and competency.

My Administration is committed to modernizing and reforming civil service hiring through improved identification of skills requirements and effective assessments of the skills job seekers possess. We encourage these same practices in the private sector. Modernizing our country's processes for identifying and hiring talent will provide America a more inclusive and demand-driven labor force.

Through the work of the National Council for the American Worker and the American Workforce Policy Advisory Board, my Administration is fulfilling its commitment to expand employment opportunities for workers. The increased adoption of apprenticeship programs by American employers, the creation of Industry-Recognized Apprenticeship Programs, and the implementation of Federal hiring reforms, including those in this order, represent important steps toward providing more Americans with pathways to family-sustaining careers. In addition, the Principles on Workforce Freedom and Mobility announced by my Administration in January 2020 detail reforms that will expand opportunities and eliminate unnecessary education costs for job seekers. This order builds on the broader work of my Administration to expand opportunity and create a more inclusive 21st-century economy.

This order directs important, merit-based reforms that will replace degree-based hiring with skills- and competency-based hiring and will hold the civil service to a higher standard—ensuring that the individuals most capable of performing the roles and responsibilities required of a specific position are those hired for that position—that is more in line with the principles on which the merit system rests.

Sec. 2. Revision of Job Classification and Qualification Standards. (a) The Director of OPM, in consultation with the Director of the Office of Management and Budget, the Assistant to the President for Domestic Policy, and the heads of agencies, shall review and revise all job classification and qualification standards for positions within the competitive service, as necessary and consistent with subsections (a)(i) and (a)(ii) of this section. All changes to job classification and qualification standards shall be made available to the public within 120 days of the date of this order [June 26, 2020] and go into effect within 180 days of the date of this order.

(i) An agency may prescribe a minimum educational requirement for employment in the Federal competitive service only when a minimum educational qualification is legally required to perform the duties of the position in the State or locality where those duties are to be performed.

(ii) Unless an agency is determining a candidate's satisfaction of a legally required minimum educational requirement, an agency may consider education in determining a candidate's satisfaction of some other minimum qualification only if the candidate's education directly reflects the competencies necessary to satisfy that qualification and perform the duties of the position.

(b) Position descriptions and job postings published by agencies for positions within the competitive service should be based on the specific skills and competencies required to perform those jobs.

Sec. 3. Improving the Use of Assessments in the Federal Hiring Process. (a) In addition to the other requirements of this order, the Director of OPM shall work with the heads of all agencies to ensure that, within 180 days of the date of this order, for positions within the competitive service, agencies assess candidates in a manner that does not rely solely on educational attainment to determine the extent to which candidates possess relevant knowledge, skills, competencies, and abilities. The heads of all agencies shall develop or identify such assessment practices.

(b) In assessing candidates, agencies shall not rely solely on candidates' self-evaluations of their stated abilities. Applicants must clear other assessment hurdles in order to be certified for consideration.

(c) Agencies shall continually evaluate the effectiveness of different assessment strategies to promote and protect the quality and integrity of their hiring processes.

Sec. 4. Definitions. For purposes of this order:

(a) the term "assessment" refers to any valid and reliable method of collecting information on an individual for the purposes of making a decision about qualification, hiring, placement, promotion, referral, or entry into programs leading to advancement;

(b) the term "competitive service" has the meaning specified by section 2102 of title 5, United States Code;

(c) the term "education" refers to Post High-School Education as that term is defined in the OPM General Schedule Qualification Policies; and

(d) the term "qualification" means the minimum requirements necessary to perform work of a particular position or occupation successfully and safely.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Executive Order No. 13957

Ex. Ord. No. 13957, Oct. 21, 2020, 85 F.R. 67631, which created Schedule F in the Excepted Service for positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition, was revoked by Ex. Ord. No. 14003, §2(a), Jan. 22, 2021, 86 F.R. 7231, set out below.

Ex. Ord. No. 14003. Protecting the Federal Workforce

Ex. Ord. No. 14003, Jan. 22, 2021, 86 F.R. 7231, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Career civil servants are the backbone of the Federal workforce, providing the expertise and experience necessary for the critical functioning of the Federal Government. It is the policy of the United States to protect, empower, and rebuild the career Federal workforce. It is also the policy of the United States to encourage union organizing and collective bargaining. The Federal Government should serve as a model employer.

Sec. 2. Revocation of Schedule F. (a) The creation of a new Schedule F excepted service category in Executive Order 13957 of October 21, 2020 (Creating Schedule F in the Excepted Service) [formerly set out above], not only was unnecessary to the conditions of good administration, but also undermined the foundations of the civil service and its merit system principles, which were essential to the Pendleton Civil Service Reform Act of 1883's [22 Stat. 403] repudiation of the spoils system. Accordingly, to enhance the efficiency of the civil service and to promote good administration and systematic application of merit system principles, Executive Order 13957 is hereby revoked.

(b) The heads of all executive departments and agencies (agencies) shall, consistent with law, immediately suspend, revise, or rescind proposed actions, decisions, petitions, rules, regulations or other guidance pursuant to, or to effectuate, Executive Order 13957. The Director of the Office of Personnel Management (OPM) shall immediately cease processing or granting any petitions that seek to convert positions to Schedule F or to create new positions in Schedule F.

Sec. 3. Revocation of Certain Presidential and Regulatory Actions. (a) Executive Order 13836 of May 25, 2018 (Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining) [former 5 U.S.C. 7101 note], is hereby revoked. The Interagency Labor Relations Working Group is hereby disbanded and the Director of OPM shall withdraw all materials issued by this working group that are inconsistent with the policy set forth in section 1 of this order.

(b) Executive Order 13837 of May 25, 2018 (Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use) [former 5 U.S.C. 7131 note], is hereby revoked.

(c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles) [former 5 U.S.C. 7501 note prec.], is hereby revoked.

(d) The Presidential Memorandum of October 11, 2019 (Executive Orders 13836, 13837, and 13839) [former 5 U.S.C. 7101 note], is hereby revoked.

(e) The heads of agencies whose practices were covered by Executive Orders 13836, 13837, and 13839 (affected agencies) shall review and identify existing agency actions related to or arising from those orders. Such actions include:

(i) Actions related to the authorization of union time described in sections 4(b) and 5(b) of Executive Order 13837;

(ii) Actions related to the system for monitoring the use of union time described in section 5(c) of Executive Order 13837;

(iii) Guidance promulgated pursuant to section 7(d) of Executive Order 13837;

(iv) Actions taken pursuant to section 8 of Executive Order 13837;

(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839; and

(vii) The final rule entitled "Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions," 85 Fed. Reg. 65940 (October 16, 2020).

(f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection (e) of this section, as appropriate and consistent with applicable law and the policy set forth in section 1 of this order.

Sec. 4. Ensuring the Right to Engage in Collective Bargaining. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.

Sec. 5. Progress Toward a Living Wage for Federal Employees. The Director of OPM shall provide a report to the President with recommendations to promote a $15/hour minimum wage for Federal employees.

Sec. 6. Severability. If any provision of this order, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of such provision to other persons or circumstances shall not be affected thereby.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Improving the Federal Recruitment and Hiring Process

Memorandum of President of the United States, May 11, 2010, 75 F.R. 27157, provided:

Memorandum for the Heads of Executive Departments and Agencies

To deliver the quality services and results the American people expect and deserve, the Federal Government must recruit and hire highly qualified employees, and public service should be a career of choice for the most talented Americans. Yet the complexity and inefficiency of today's Federal hiring process deters many highly qualified individuals from seeking and obtaining jobs in the Federal Government.

I therefore call on executive departments and agencies (agencies) to overhaul the way they recruit and hire our civilian workforce. Americans must be able to apply for Federal jobs through a commonsense hiring process and agencies must be able to select high-quality candidates efficiently and quickly. Moreover, agency managers and supervisors must assume a leadership role in recruiting and selecting employees from all segments of our society. Human resource offices must provide critical support for these efforts. The ability of agencies to perform their missions effectively and efficiently depends on a talented and engaged workforce, and we must reform our hiring system to further strengthen that workforce.

By the authority vested in me as President by the Constitution and the laws of the United States, including section 3301 of title 5, United States Code, I hereby direct the following:

Section 1. Directions to Agencies. Agency heads shall take the following actions no later than November 1, 2010:

(a) consistent with merit system principles and other requirements of title 5, United States Code, and subject to guidance to be issued by the Office of Personnel Management (OPM), adopt hiring procedures that:

(1) eliminate any requirement that applicants respond to essay-style questions when submitting their initial application materials for any Federal job;

(2) allow individuals to apply for Federal employment by submitting resumes and cover letters or completing simple, plain language applications, and assess applicants using valid, reliable tools; and

(3) provide for selection from among a larger number of qualified applicants by using the "category rating" approach (as authorized by section 3319 of title 5, United States Code), rather than the "rule of 3" approach, under which managers may only select from among the three highest scoring applicants;

(b) require that managers and supervisors with responsibility for hiring are:

(1) more fully involved in the hiring process, including planning current and future workforce requirements, identifying the skills required for the job, and engaging actively in the recruitment and, when applicable, the interviewing process; and

(2) accountable for recruiting and hiring highly qualified employees and supporting their successful transition into Federal service, beginning with the first performance review cycle starting after November 1, 2010;

(c) provide the OPM and the Office of Management and Budget (OMB) timelines and targets to:

(1) improve the quality and speed of agency hiring by:

(i) reducing substantially the time it takes to hire mission-critical and commonly filled positions;

(ii) measuring the quality and speed of the hiring process; and

(iii) analyzing the causes of agency hiring problems and actions that will be taken to reduce them; and

(2) provide every agency hiring manager training on effective, efficient, and timely ways to recruit and hire well-qualified individuals;

(d) notify individuals applying for Federal employment through USAJOBS, an OPM-approved Federal web-based employment search portal, about the status of their application at key stages of the application process; and

(e) identify a senior official accountable for leading agency implementation of this memorandum.

Sec. 2. Directions to the OPM. The OPM shall take the following actions no later than 90 days after the date of this memorandum:

(a) establish a Government-wide performance review and improvement process for hiring reform actions described in section 1 of this memorandum, including:

(1) a timeline, benchmarks, and indicators of progress; [and]

(2) a goal-focused, data-driven system for holding agencies accountable for improving the quality and speed of agency hiring, achieving agency hiring reform targets, and satisfying merit system principles and veterans' preference requirements; and [sic]

(b) develop a plan to promote diversity in the Federal workforce, consistent with the merit system principle (codified at 5 U.S.C. 2301(b)(1)) that the Federal Government should endeavor to achieve a workforce from all segments of society;

(c) evaluate the Federal Career Intern Program established by Executive Order 13162 of July 6, 2000, provide recommendations concerning the future of that program, and propose a framework for providing effective pathways into the Federal Government for college students and recent college graduates;

(d) provide guidance or propose regulations, as appropriate, to streamline and improve the quality of job announcements for Federal employment to make sure they are easily understood by applicants;

(e) evaluate the effectiveness of shared registers used in filling positions common across multiple agencies and develop a strategy for improving agencies' use of these shared registers for commonly filled Government-wide positions;

(f) develop a plan to increase the capacity of USAJOBS to provide applicants, hiring managers, and human resource professionals with information to improve the recruitment and hiring processes; and

(g) take such further administrative action as appropriate to implement sections 1 and 2 of this memorandum.

Sec. 3. Senior Administration Officials. Agency heads and other senior administration officials visiting university or college campuses on official business are encouraged to discuss career opportunities in the Federal Government with students.

Sec. 4. Reporting. (a) The OPM, in coordination with the OMB and in consultation with other agencies, shall develop a public human resources website to:

(1) track key human resource data, including progress on hiring reform implementation; and

(2) assist senior agency leaders, hiring managers, and human resource professionals with identifying and replicating best practices within the Federal Government for improving new employee quality and the hiring process.

(b) Each agency shall regularly review its key human resource performance and work with the OPM and the OMB to achieve timelines and targets for correcting agency hiring problems.

(c) The OPM shall submit to the President an annual report on the impact of hiring initiatives set forth in this memorandum, including its recommendations for further improving the Federal Government's hiring process.

Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:

(1) authority granted by law or Executive Order to an agency, or the head thereof; or

(2) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Director of the OPM, in consultation with the OMB, may grant an exception to any of the requirements set forth in section 1 of this memorandum to an agency that demonstrates that exceptional circumstances prevent it from complying with that requirement.

Sec. 6. Publication. The Director of the OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Enhancing Safeguards To Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own

Memorandum of President of the United States, Jan. 31, 2014, 79 F.R. 7045, provided:

Memorandum for the Heads of Executive Departments and Agencies

The Federal Government is America's largest employer. While seeking to employ a talented and productive workforce, it has a responsibility to lead by example. Although executive departments and agencies (agencies) generally can, and do, take job applicants' employment history and other factors into account when making hiring decisions, it is the policy of my Administration that applicants should not face undue obstacles to Federal employment because they are unemployed or face financial difficulties. The Government must continue to take steps to ensure the fair treatment of applicants, as well as incumbent Federal employees, who face financial difficulties through no fault of their own and make good faith efforts to meet those obligations. Therefore, I hereby direct as follows:

Section 1. Individuals Who Are Unemployed or Facing Financial Difficulty. (a) Agencies shall not make an unfavorable determination with respect to the suitability, fitness, or qualifications of an applicant for Federal employment because that applicant:

(i) is or was unemployed; or

(ii) has experienced or is experiencing financial difficulty through no fault of the applicant, if the applicant has undertaken a good-faith effort to meet his or her financial obligations.

(b) Consistent with existing law, agencies shall not remove, suspend, or demote a current Federal employee if the basis of the action is that the employee has experienced, or is experiencing, financial difficulty through no fault of the employee, and the employee has undertaken a good-faith effort to meet his or her financial obligations.

(c) Agencies shall review their recruiting and hiring practices to determine whether such processes intentionally or inadvertently place applicants at an undue disadvantage because of the factors set forth in subsection (a) of this section and report the results to the Director of the Office of Personnel Management (OPM) within 90 days of the date of this memorandum. Taking into account the results, the Director of OPM shall issue guidance to Chief Human Capital Officers to assist agencies with implementation of this memorandum.

Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof;

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals;

(iii) the authority granted by law, Executive Order, or regulation to a department or agency, or the head thereof, to determine eligibility for access to classified information or to occupy a sensitive position; or

(iv) the authority granted by law or Executive Order to a department or agency, or the head thereof, to take adverse actions against Federal employees for their failure to comply with any law, rule, or regulation imposing upon them an obligation to satisfy in good faith their just financial obligations, including Federal, State, or local taxes.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Director of OPM is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

§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(b), 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 417; Pub. L. 95–228, §2(b), Feb. 10, 1978, 92 Stat. 25; Pub. L. 95–454, title VII, §703(c)(1), Oct. 13, 1978, 92 Stat. 1217; Pub. L. 96–54, §2(a)(16), Aug. 14, 1979, 93 Stat. 382; Pub. L. 103–94, §2(b)(1), Oct. 6, 1993, 107 Stat. 1004; Pub. L. 118–188, §2(a)(2)(A)(i)(I), Dec. 23, 2024, 138 Stat. 2645.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 633(1) (less function of Civil Service Commission), (2)8 (last sentence).	Jan. 16, 1883, ch. 27, §2(1) (less function of Civil Service Commission), (2) 8 (last sentence), 22 Stat. 403, 404.

The reference to the competitive service is substituted for the reference to the Act creating that service. The reference to reasons for the exceptions is omitted as covered by section 1308 of this title. The words "provide for" are substituted for "provide and declare". Paragraph (1) is supplied to preserve the President's power to except positions from the competitive service, previously implied from the power to except from the first rule in former section 633(2). Authority to make exceptions to so much of former section 633(2) as is restated in this section and section 1302(a) is omitted as meaningless. Authority to make exceptions to so much of former section 633(2) as is restated in section 3318(a) is omitted as superseded by former section 857, which is carried into section 3318(a). In the last sentence, the words "Each officer and individual employed in an agency" are substituted for "officers of the United States in the departments and offices" because of the restrictive definition of "officer" in section 2104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2024—Par. (2). Pub. L. 118–188 substituted "3304(b)" for "3304(a)".

1993—Par. (2). Pub. L. 103–94 substituted "and 7203" for "7203, 7321, and 7322".

1979—Par. (2). Pub. L. 96–54 amended par. (2) in same manner as amendment by section 703(c)(1) of Pub. L. 95–454. See 1978 Amendment note below.

1978—Par. (2). Pub. L. 95–454 substituted "7202, 7203" for "7152, 7153".

Pub. L. 95–228 struck out reference to section 3306(a)(1) of this title. Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of section 2105 of this title, and subsec. (c)(2) purported to amend par. (2) of this section. However, the amendments specified by Pub. L. 95–454, §703(c)(1) and (2), were impossible to execute literally. Thus, amendment by Pub. L. 95–454, §703(c)(2) was executed to section 2105 of this title, and amendment by section 703(c)(1) was executed to this section as the probable intent of Congress.

Statutory Notes and Related Subsidiaries

Effective Date of 1993 Amendment; Savings Provision

Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Executive Documents

Ex. Ord. No. 11521. Veterans Readjustment Appointment for Veterans of Vietnam Era

Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

WHEREAS this Nation has an obligation to assist veterans of the armed forces in readjusting to civilian life;

WHEREAS the Federal Government, as an employer, should reflect its recognition of this obligation in its personnel policies and practices;

WHEREAS veterans, by virtue of their military service, have lost opportunities to pursue education and training oriented toward civilian careers;

WHEREAS the Federal Government is continuously concerned with building an effective workforce, and veterans constitute a major recruiting source; and

WHEREAS the development of skills is most effectively achieved through a program combining employment with education or training:

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution of the United States, by sections 3301 and 3302 of title 5, United States Code, and as President of the United States, it is ordered as follows:

Section 1. (a) Subject to paragraph (b) of this section, the head of an agency may make an excepted appointment, to be known as a "veterans readjustment appointment", to any position in the competitive service up to and including GS–5 or the equivalent thereof, of a veteran or disabled veteran as defined in section 2108(1), (2), of title 5, United States Code, who:

(1) served on active duty in the armed forces of the United States during the Vietnam era;

(2) at the time of his appointment has completed not more than fourteen years of education; and

(3) is found qualified to perform the duties of the position.

(b) Employment under paragraph (a) of this section is authorized only under a training or educational program developed by an agency in accordance with guidelines established by the Office of Personnel Management.

(c) An employee given a veterans readjustment appointment under paragraph (a) of this section shall serve subject to:

(1) the satisfactory performance of assigned duties; and

(2) participation in the training or educational program under which he is appointed.

(d) An employee who does not satisfactorily meet the conditions set forth in paragraph (c) of this section shall be removed in accordance with appropriate procedures.

(e) An employee serving under a veterans readjustment appointment may be promoted, reassigned, or transferred.

(f) An employee who completes the training or educational program and who has satisfactorily completed two years of substantially continuous service under a veterans readjustment appointment shall be converted to career-conditional or career employment. An employee converted under this paragraph shall automatically acquire a competitive status.

(g) In selecting an applicant for appointment under this section, an agency shall not discriminate because of race, color, religion, sex, national origin, or political affiliation.

Sec. 2. (a) A person eligible for appointment under section 1 of this order may be appointed only within one year after his separation from the armed forces, or one year following his release from hospitalization or treatment immediately following his separation from the armed forces, or one year after involuntary separation without cause from (i) a veterans readjustment appointment or (ii) a transitional appointment, or one year after the effective date of this order if he is serving under a transitional appointment.

(b) The Office of Personnel Management may determine the circumstances under which service under a transitional appointment may be deemed service under a veterans readjustment appointment for the purpose of paragraph (f) of section 1 of this order.

Sec. 3. Any law, Executive order, or regulation which would disqualify an applicant for appointment in the competitive service shall also disqualify a person otherwise eligible for appointment under section 1 of this order.

Sec. 4. For the purpose of this order:

(a) "agency" means a military department as defined in section 102 of title 5, United States Code, an executive agency (other than the General Accounting Office [now Government Accountability Office]) as defined in section 105 of title 5, United States Code, and those portions of the legislative and judicial branches of the Federal Government and of the government of the District of Columbia having positions in the competitive service; and

(b) "Vietnam era" means the period beginning August 5, 1964, and ending on such date thereafter as may be determined by Presidential proclamation or concurrent resolution of the Congress.

Sec. 5. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the provisions of this order.

Sec. 6. Executive Order No. 11397 of February 9, 1968, is revoked. Such revocation shall not affect the right of an employee to be converted to career-conditional or career employment if he meets the requirements of section 1(d) of Executive Order No. 11397 after the effective date of this order.

Sec. 7. This order is effective 14 days after its date.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 103–94, §8(a), Oct. 6, 1993, 107 Stat. 1006; Pub. L. 104–197, title III, §315(a), Sept. 16, 1996, 110 Stat. 2416.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 642.	Jan. 16, 1883, ch. 27, §10, 22 Stat. 406.

The prohibition is restated in positive form. The words "An individual concerned in examining an applicant for or appointing him in the competitive service" are substituted for "any person concerned in making any examination or appointment under this act". The word "applicant" is substituted for "person who shall apply for office or place under the provisions of this act". The word "Representative" is substituted for "Member of the House of Representatives".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1996—Pub. L. 104–197 substituted "Competitive service; recommendations of Senators or Representatives" for "Political recommendations" in section catchline and amended text generally, substituting provisions prohibiting receipt or consideration of recommendations of applicants in competitive service made by Senators or Representatives for provisions which directed that personnel actions be taken without solicitation of or regard to such recommendations from Members of Congress, congressional employees, any elected official of the government of any State (including D.C. and Puerto Rico) or subdivision thereof, or political party official, prohibited such persons from making such recommendations, prohibited employees or applicants from soliciting such recommendations and required notification of such prohibition, but allowed for certain exceptions regarding solicitation and consideration of recommendations if subject of recommendation was limited to factors pertinent to work performance, ability, aptitude, general qualifications, related to suitability or security standards, or furnished pursuant to law or regulation.

1993—Pub. L. 103–94 substituted "Political recommendations" for "Competitive service; recommendations of Senators or Representatives" as section catchline and amended text generally. Prior to amendment, text read as follows: "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."

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–197 effective 30 days after Sept. 16, 1996, see section 315(c) of Pub. L. 104–197, set out as a note under section 2302 of this title.

Effective Date of 1993 Amendment; Savings Provision

Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

§3304. Competitive service; examinations

(a) Definitions.—In this section:

(1) Agency.—The term "agency" means an Executive agency.

(2) Director.—The term "Director" means the Director of the Office.

(3) Examination.—The term "examination" means the process by which an applicant demonstrates knowledge, skills, abilities, and competencies.

(4) Examining agency.—The term "examining agency" means—

(A) the Office; or

(B) an agency to which the Director has delegated examining authority under section 1104(a)(2).

(5) Office.—The term "Office" means the Office of Personnel Management.

(6) Passing score.—The term "passing score" means a minimum acceptable score or rating, consistent with applicable law, that may include a quantitative or qualitative assessment that an applicant can pass or fail.

(7) Relevant committees.—The term "relevant committees" means—

(A) the Committee on Homeland Security and Governmental Affairs of the Senate; and

(B) the Committee on Oversight and Accountability of the House of Representatives.

(8) Subject matter expert.—The term "subject matter expert" means an employee or selecting official—

(A) who possesses an understanding of the duties of, and knowledge, skills, and abilities required for, the position for which the employee or selecting official is developing or administering an examination; and

(B) whom the delegated examining unit of the examining agency that employs the employee or selecting official designates to assist in the development and administration of technical assessments.

(9) Technical assessment.—The term "technical assessment" means a position-specific tool that is relevant to the position for which the tool is developed that—

(A) allows for the demonstration of job-related skills, abilities, knowledge, and competencies;

(B) is based upon a job analysis; and

(C) does not solely include or principally rely upon a self-assessment from an automated examination.

(b) Rules.—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;

(2) noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy; and

(3) authority for agencies to appoint, without regard to the provision of sections 3309 through 3318, candidates directly to positions for which—

(A) public notice has been given; and

(B) the Office of Personnel Management has determined that there exists a severe shortage of candidates (or, with respect to the Department of Veterans Affairs, that there exists a severe shortage of highly qualified candidates) or that there is a critical hiring need.

The Office shall prescribe, by regulation, criteria for identifying such positions and may delegate authority to make determinations under such criteria.

(c) Examinations.—

(1) In general.—For the purpose of testing applicants for appointment for a position, or class of positions, in the competitive service, an examining agency shall conduct an examination pursuant to subsection (b).

(2) Interim examination period.—

(A) Preference for technical assessment.—During the 3-year period beginning on the date of enactment of the Chance to Compete Act of 2024, an examining agency shall preference the use of a technical assessment, to the maximum extent practicable, to assess the job-related skills, abilities, knowledge, and competencies of an applicant for a position in the competitive service.

(B) Use of alternative assessment.—During the 3-year period beginning on the date of enactment of the Chance to Compete Act of 2024, if an examining agency determines that the use of a technical assessment to assess the job-related skills, abilities, knowledge, and competencies of an applicant for a position in the competitive service is not practicable, the examining agency may use an alternative assessment for that purpose if the examining agency includes a brief description of the rationale for the use of the alternative assessment in the job posting.

(3) Transition planning.—

(A) In general.—Not later 18 months after the date of enactment of the Chance to Compete Act of 2024, the Director shall submit to the relevant committees a plan to transition Federal hiring practices to adopt technical assessments in accordance with subsection (d), which shall include—

(i) the prioritization of—

(I) job classifications; and

(II) resource requirements; and

(ii) a timeline for full implementation of the transition.

(B) Additional consultation.—In developing the plan under subparagraph (A), the Director shall consult with, at minimum—

(i) the Director of the Office of Management and Budget;

(ii) the Chair of the Chief Human Capital Officers Council;

(iii) employee representatives; and

(iv) relevant external stakeholders.

(4) Implementation of technical assessments.—

(A) Implementation of plan.—Not later than 3 years after the date of enactment of the Chance to Compete Act of 2024, the Director shall implement the plan submitted under paragraph (3).

(B) Adoption of technical assessments.—On and after the date that is 3 years after the date of enactment of the Chance to Compete Act of 2024, an examining agency shall use a technical assessment to examine applicants for positions in the competitive service in accordance with subsection (d).

(C) Waiver.—

(i) In general.—The requirement under subparagraph (B) shall not apply to an examining agency with respect to a particular job series if—

(I) the examining agency determines that use of a technical assessment is impracticable for the job series; and

(II) the head of the examining agency submits to the Director and the relevant committees a certification that use of the technical assessment is impracticable, which certification shall include—

(aa) identification of the job series;

(bb) identification of the number of positions that are included in the job series within the agency for which the examining agency is conducting examinations; and

(cc) a description of the rationale for the determination.

(ii) Effectiveness of waiver.—A waiver under this subparagraph shall be effective for the period—

(I) beginning on the date that is 1 day after the date on which the applicable certification is submitted under clause (i)(II); and

(II) ending on the date that is 3 years after the date on which the applicable certification is submitted under clause (i)(II).

(iii) No delegation of certification authority.—The head of an examining agency may not delegate the authority to submit a certification under clause (i)(II).

(d) Technical Assessment.—

(1) In general.—For the purpose of conducting an examination for a position in the competitive service, an individual who is determined by an examining agency to be a subject matter expert in the subject and job field of the position may—

(A) develop, in partnership with human resources employees of the examining agency, a position-specific assessment that is relevant to the position, based on job analysis, which may include—

(i) a structured interview;

(ii) a work-related exercise;

(iii) a custom or generic procedure used to measure an applicant's employment or career-related qualifications and interests; or

(iv) another assessment that—

(I) allows for the demonstration of job-related technical skills, abilities, and knowledge; and

(II) is relevant to the position for which the assessment is developed; and

(B) administer the assessment developed under subparagraph (A) to—

(i) determine whether an applicant for the position has a passing score to be qualified for the position; or

(ii) rank applicants for the position for category rating purposes under section 3319.

(2) Feasibility study on sharing and customization of assessment.—Not later than 1 year after the date of enactment of the Chance to Compete Act of 2024, the Director shall—

(A) conduct a feasibility study that examines the practicability, including a cost benefit analysis, of—

(i) the sharing of technical assessments by an examining agency with another examining agency;

(ii) mechanisms for each examining agency to maintain appropriate control over examination material that is shared by the examining agency as described in clause (i);

(iii) limits on customization of a technical assessment that is shared as described in clause (i) and mechanisms to ensure that the resulting technical assessment satisfies the requirements under part 300 of title 5, Code of Federal Regulations (or any successor regulation); and

(iv) the development of an online platform on which examining agencies can share and customize technical assessments as described in this subparagraph; and

(B) submit to the relevant committees a report on the study conducted under subparagraph (A).

(e) Federal Agency Talent Teams.—

(1) In general.—An agency may establish 1 or more agency talent teams, including at the component level.

(2) Duties.—An agency talent team shall provide hiring support to the agency, including by—

(A) improving examinations;

(B) facilitating the writing of job announcements for the competitive service;

(C) sharing high-quality certificates of eligible applicants; and

(D) facilitating hiring for the competitive service using examinations.

(f) Office of Personnel Management Talent Team.—The Director may establish a Federal talent team to support agency talent teams by—

(1) facilitating hiring actions across the Federal Government;

(2) providing training;

(3) creating tools and guides to facilitate hiring for the competitive service; and

(4) developing technical assessments.

(g) Rulemaking.—The Director shall promulgate such regulations as are necessary to implement and interpret this section.

(h) Examination or Exception Required.—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.

(i) Technicians.—(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 charges 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.

(j) Consideration of Experience.—The office ¹ 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.

(k) Use of Public Buildings.—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.

(l) Preference Eligibles and Veterans.—(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.

(m) Eligibility of Department of Defense Employees in Time-limited Appointments to Compete for Permanent Appointments.—

(1) Definitions.—In this subsection—

(A) the term "Department" means the Department of Defense; and

(B) the term "time-limited appointment" means a temporary or term appointment in the competitive service.

(2) Eligibility.—Notwithstanding any other provision of this chapter or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, an employee of the Department serving under a time-limited appointment is eligible to compete for a permanent appointment in the competitive service when the Department is accepting applications from individuals within its own workforce, or from individuals outside its own workforce, under merit promotion procedures, if—

(A) the employee was appointed initially under open, competitive examination under subchapter I of this chapter to the time-limited appointment;

(B) the employee has served under 1 or more time-limited appointments within the Department for a period or periods totaling more than 2 years without a break of 2 or more years; and

(C) the employee's performance has been at an acceptable level of performance throughout the period or periods referred to in subparagraph (B).

(3) Career-conditional status; competitive status.—An individual appointed to a permanent position under this section—

(A) becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and

(B) acquires competitive status upon appointment.

(4) Former employees.—If the Department is accepting applications as described in paragraph (2), a former employee of the Department who served under a time-limited appointment and who otherwise meets the requirements of this section shall be eligible to compete for a permanent position in the competitive service under this section if—

(A) the employee applies for a position covered by this section not later than 2 years after the most recent date of separation; and

(B) the employee's most recent separation was for reasons other than misconduct or performance.

(5) Regulations.—The Office of Personnel Management shall prescribe regulations necessary for the administration of this subsection.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 95–454, title IX, §906(a)(5), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 99–586, Oct. 29, 1986, 100 Stat. 3325; Pub. L. 104–65, §§16(a), (b), 17(a), Dec. 19, 1995, 109 Stat. 703; Pub. L. 104–186, title II, §215(2), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 105–339, §2, Oct. 31, 1998, 112 Stat. 3182; Pub. L. 106–117, title V, §511(c), Nov. 30, 1999, 113 Stat. 1575; Pub. L. 107–296, title XIII, §1312(a)(1), Nov. 25, 2002, 116 Stat. 2290; Pub. L. 108–375, div. A, title XI, §1105(g), Oct. 28, 2004, 118 Stat. 2075; Pub. L. 109–163, div. A, title XI, §1104(e)(2), Jan. 6, 2006, 119 Stat. 3450; Pub. L. 111–84, div. A, title XI, §1102(d)(2), Oct. 28, 2009, 123 Stat. 2485; Pub. L. 115–46, title II, §213, Aug. 12, 2017, 131 Stat. 967; Pub. L. 117–263, div. A, title XI, §1108, Dec. 23, 2022, 136 Stat. 2818; Pub. L. 118–188, §§2(a)(1), (2)(E), 3, Dec. 23, 2024, 138 Stat. 2644–2646.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 633(2)1.	Jan. 16, 1883, ch. 27, §2(2)1, 22 Stat. 403.
	5 U.S.C. 633(2)7 (less last 17 words).	Jan. 16, 1883, ch. 27, §2(2)7 (less last 17 words), 22 Stat. 404.
(b)	5 U.S.C. 638 (as applicable to appointment).	Jan. 16, 1883, ch. 27, §7 (as applicable to appointment), 22 Stat. 406.
(c)	5 U.S.C. 631b(b).	Nov. 26, 1940, ch. 919, §2(b), 54 Stat. 1212. Feb. 12, 1946, ch. 3, 60 Stat. 3. May 29, 1958, Pub. L. 85–432, §5, 72 Stat. 151.
	5 U.S.C. 631b(c).	June 24, 1952, ch. 456, 66 Stat. 155.
(d)	5 U.S.C. 635 (7th sentence).	Jan. 16, 1883, ch. 27, §3 (7th sentence), 22 Stat. 404.

In subsection (a), the authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. The words "competitive service" are substituted for "public service" since the requirements do not apply to the excepted or uniformed service.

In subsection (b), the words "That after the expiration of six months from the passage of this act" are omitted as executed. The words "in the competitive service" are substituted for "in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules" because of the definition of "competitive service" in section 2102. In the second sentence, the words "the provisions of this title governing the competitive service" are substituted for "this act".

In subsection (c), the provisions of former section 631b(b) and (c) are combined and restated for clarity. The words "From and after the effective date of this Act" and "From and after the date of approval of this Act" are omitted as executed. The words "competitive service" are substituted for "classified civil service" in view of the definition of "competitive service" in section 2102. The words "or as a clerical employee of the Senate or House of Representatives" are omitted as included in the reference to "an individual . . . in the legislative branch in a position in which he was paid by the Secretary of the Senate or the Clerk of the House of Representatives". The words "and nothing in this Act shall be construed to impair any right of retransfer provided for under civil service laws or regulations made thereunder" are omitted as unnecessary.

In subsection (d), the word "Employees" is substituted for "collector, postmaster, and other officers of the United States".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

The date of enactment of the Chance to Compete Act of 2024, referred to in subsecs. (c)(2), (3)(A), (4)(A), (B) and (d)(2), is the date of enactment of Pub. L. 118–188, which was approved Dec. 23, 2024.

Amendments

2024—Subsec. (a). Pub. L. 118–188, §2(a)(1)(C), added subsec. (a). Former subsec. (a) redesignated (b).

Subsec. (b). Pub. L. 118–188, §2(a)(1)(B), (2)(E)(i), redesignated subsec. (a) as (b) and inserted heading. Former subsec. (b) redesignated (h).

Subsecs. (c) to (g). Pub. L. 118–188, §3, added subsecs. (c) to (g). Former subsecs. (c) to (g) redesignated (i) to (m), respectively.

Subsecs. (h), (i). Pub. L. 118–188, §2(a)(1)(A), (2)(E)(ii), (iii), redesignated subsecs. (b) and (c) as (h) and (i), respectively, and inserted headings.

Subsec. (j). Pub. L. 118–188, §2(a)(1)(A), (2)(E)(iv), redesignated subsec. (d) as (j), inserted heading, and substituted "The office" for "The Office".

Subsecs. (k), (l). Pub. L. 118–188, §2(a)(1)(A), (2)(E)(v), (vi), redesignated subsecs. (e) and (f) as (k) and (l), respectively, and inserted headings.

Subsec. (m). Pub. L. 118–188, §2(a)(1)(A), redesignated subsec. (g) as (m).

2022—Subsec. (g). Pub. L. 117–263 added subsec. (g).

2017—Subsec. (a)(3)(B). Pub. L. 115–46 inserted "(or, with respect to the Department of Veterans Affairs, that there exists a severe shortage of highly qualified candidates)" after "severe shortage of candidates".

2009—Subsec. (a)(3)(B). Pub. L. 111–84 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows:

"(i) the Office of Personnel Management has determined that there exists a severe shortage of candidates or there is a critical hiring need; or

"(ii) the candidate is a participant in the Science, Mathematics, and Research for Transformation (SMART) Defense Defense Education Program under section 2192a of title 10, United States Code."

2006—Subsec. (a)(3)(B)(ii). Pub. L. 109–163 substituted "Defense Education Program" for "Scholarship Pilot Program" and "section 2192a of title 10, United States Code." for "section 1105 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005."

2004—Subsec. (a)(3)(B). Pub. L. 108–375 added subpar. (B) and struck out former subpar. (B) which read as follows: "the Office of Personnel Management has determined that there exists a severe shortage of candidates or there is a critical hiring need."

2002—Subsec. (a)(3). Pub. L. 107–296 added par. (3).

1999—Subsec. (f)(2), (3). Pub. L. 106–117, §511(c)(2), (3), added par. (2) and redesignated former par. (2) as (3). Former par. (3) redesignated (4).

Subsec. (f)(4). Pub. L. 106–117, §511(c)(1), (2), redesignated par. (3) as (4) and struck out former par. (4) which read as follows: "The Office of Personnel Management shall establish an appointing authority to appoint such preference eligibles and veterans."

Subsec. (f)(5). Pub. L. 106–117, §511(c)(4), added par. (5).

1998—Subsec. (f). Pub. L. 105–339 added subsec. (f).

1996—Subsec. (c)(1). Pub. L. 104–186 substituted "Chief Administrative Officer" for "Clerk".

1995—Subsec. (c). Pub. L. 104–65, §16(a), (b), redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: "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—

"(1) for at least 3 years in the legislative branch in a position in which he was paid by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; or

"(2) for at least 4 years as a secretary or law clerk, or both, to a justice or judge of the United States;

acquires a competitive status for transfer to the competitive service if he is involuntarily separated without prejudice from the legislative or judicial branch, passes a suitable noncompetitive examination, and transfers to the competitive service within 1 year of the separation from the legislative or judicial branch. For the purpose of this subsection, an individual who has served for at least 2 years in a position in the legislative branch described by paragraph (1) of this subsection and who is separated from that position to enter the armed forces is deemed to have held that position during his service in the armed forces."

Subsec. (d). Pub. L. 104–65, §17(a), which directed amendment of this section by adding subsec. (d) at the end thereof, was executed by adding subsec. (d) after subsec. (c) to reflect the probable intent of Congress.

Pub. L. 104–65, §16(b), redesignated subsec. (d) as (c).

1986—Subsecs. (d), (e). Pub. L. 99–586 added subsec. (d) and redesignated former subsec. (d) as (e).

1978—Subsec. (d). Pub. L. 95–454 substituted "the Office of Personnel Management" for "a Civil Service Commission board of examiners".

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date of 1999 Amendment

Pub. L. 106–117, title V, §511(d)(2), Nov. 30, 1999, 113 Stat. 1576, provided that: "If pursuant to subsection (a) [113 Stat. 1575] the amendments specified in subsection (c) [amending this section] are made, those amendments shall take effect as of October 31, 1998, as if included in subsection (f) [now (l)] of section 3304 of title 5, United States Code, as enacted by section 2 of the Veterans Employment Opportunities Act of 1998 (Public Law 105–339; 112 Stat. 3182)."

Effective Date of 1995 Amendment

Pub. L. 104–65, §16(c), Dec. 19, 1995, 109 Stat. 703, provided that: "The repeal and amendment made by this section [amending this section] shall take effect 2 years after the date of the enactment of this Act [Dec. 19, 1995]."

Pub. L. 104–65, §17(b), Dec. 19, 1995, 109 Stat. 703, provided that: "The amendment made by this section [amending this section] shall take effect 2 years after the date of the enactment of this Act [Dec. 19, 1995], except the Office of Personnel Management shall—

"(1) conduct a study on excepted service considerations for competitive service appointments relating to such amendment; and

"(2) take all necessary actions for the regulations described under such amendment to take effect as final regulations on the effective date of this section."

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Reports

Pub. L. 118–188, §5, Dec. 23, 2024, 138 Stat. 2649, provided that:

"(a) Implementation Reports.—

"(1) In general.—Not later than 1 year after the date of enactment of this Act [Dec. 23, 2024], and each year thereafter ending with the fifth publication and submission of the report, the Director shall publish on a public-facing website, and submit to the relevant committees, a report that—

"(A) examines the progress of examining agencies in implementing the requirements of this Act [see Short Title of 2024 Amendment note set out under section 101 of this title] and the amendments made by this Act; and

"(B) identifies any significant difficulties encountered in the implementation described in subparagraph (A).

"(2) Inclusion in annual report.—The Director may include the report required under paragraph (1) as an addendum to the report required under subsection (b).

"(3) Delayed reporting.—If the Director is unable to publish and submit the report within the timeline required under paragraph (1), the Director shall publish on a public-facing website, and submit to the relevant committees, a notification of the delay that—

"(A) provides a reason for the delay; and

"(B) advises the public and the relevant committees of the anticipated date of publication and submission of the report.

"(b) Annual Report.—

"(1) In general.—Not later than 1 year after the date of enactment of this Act, and each year thereafter, the Director shall publish on a public-facing website and submit to the relevant committees a report that, with respect to categories of positions in the competitive service for which an examining agency examined applicants during the applicable period, includes—

"(A) the type of examination used; and

"(B) summary data from examinations that are closed, audited, and anonymous on the use of examinations for the competitive service, including technical assessments.

"(2) Demographic indicators.—In carrying out paragraph (1), the Director shall break the data down by applicant demographic indicators to facilitate direct comparability and trendline comparisons to data available as of October 1, 2020, as a baseline.

"(3) Limitations.—In carrying out this subsection, the Director may only publish and submit to the relevant committees data relating to examinations for which—

"(A) the related announcement is closed;

"(B) certificates have been audited; and

"(C) all hiring processes are completed.

"(4) Delayed reporting.—If the Director is unable to publish and submit the report within the timeline required under paragraph (1), the Director shall publish on a public-facing website, and submit to the relevant committees, a notification of the delay that—

"(A) provides a reason for the delay; and

"(B) advises the public and the relevant committees of the anticipated date of publication and submission of the report.

"(c) Provision of Data by Agencies.—

"(1) In general.—Not later than 180 days after the date of enactment of this Act, the Director shall issue guidance to examining agencies regarding the data that the Director needs from the examining agencies in order to comply with subsections (a) and (b).

"(2) Reporting timelines.—Each examining agency shall provide the data outlined in the guidance issued by the Director under paragraph (1) on a quarterly basis."

[For definitions of terms used in section 5 of Pub. L. 118–188, set out above, see section 2(b) of Pub. L. 118–188, set out below.]

Evaluation for Potential Updates or Revisions to Government-Wide Systems of Records at the Office of Personnel Management

Pub. L. 118–188, §7, Dec. 23, 2024, 138 Stat. 2651, provided that:

"(a) In General.—Not later than 1 year after the date of enactment of this Act [Dec. 23, 2024], the Director [of the Office of Personnel Management] shall evaluate whether the Government-wide system of records notices, the OPM/GOVT–5 Recruiting, Examining, and Placement Records, and the OPM/GOVT–6 Personnel Research and Test Validation Records, or any successor materials thereto, require updating or revision in order to support the implementation of this Act [see Short Title of 2024 Amendment set out under section 101 of this title] and the amendments made by this Act.

"(b) Issuance of Updates or Revisions; Notice to Congress.—If the Director determines under subsection (a) that any updates or revisions are necessary, the Director, in accordance with section 552a of title 5, United States Code (commonly known as the 'Privacy Act'), shall promptly—

"(1) issue the updates or revisions; and

"(2) notify the relevant committees [Committee on Homeland Security and Governmental Affairs of the Senate and Committee on Oversight and Accountability of the House of Representatives]."

Direct Hiring for Federal Wage Schedule Employees

Pub. L. 114–328, div. A, title XI, §1139, Dec. 23, 2016, 130 Stat. 2470, provided that: "The Director of the Office of Personnel Management shall permit an agency with delegated examining authority under [section] 1104(a)(2) of title 5, United States Code, to use direct-hire authority under section 3304(a)(3) [now 3304(b)(3)] of such title for a permanent or non-permanent position or group of positions in the competitive services at GS–15 (or equivalent) and below, or for prevailing rate employees, if the Director determines that there is either a severe shortage of candidates or a critical hiring need for such positions."

Definitions in Pub. L. 118–188

Pub. L. 118–188, §2(b), Dec. 23, 2024, 138 Stat. 2646, provided that: "In this Act [see sections 5 and 7 of Pub. L. 118–188, set out as notes above]—

"(1) each term that is defined in section 3304(a) of title 5, United States Code, as added by subsection (a) of this section, shall have the meaning given the term in such section 3304(a); and

"(2) the term 'competitive service' has the meaning given the term in section 2102 of title 5, United States Code."

¹ So in original. Probably should be capitalized.

§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 a position classified above GS–15 pursuant to section 5108) acquires competitive status and is entitled to have his appointment converted to a career appointment, without condition, when—

(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.

(Added Pub. L. 90–105, §1(a), Oct. 11, 1967, 81 Stat. 273; amended Pub. L. 91–375, §6(c)(6), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 101–509, title V, §529 [title I, §101(b)(9)(B)], Nov. 5, 1990, 104 Stat. 1427, 1441.)

Editorial Notes

Amendments

1990—Subsec. (a). Pub. L. 101–509, which directed the substitution of "in a position classified above GS–15 pursuant to section 5108)" for "in GS–16, 17, or 18)", was executed by making the substitution for "in GS–16, GS–17, or GS–18)", as the probable intent of Congress.

1978—Subsec. (a). Pub. L. 95–454, §906(a)(2), (3), substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively, wherever appearing.

Subsec. (d). Pub. L. 95–454, §906(a)(2), substituted "Office of Personnel Management" for "Civil Service Commission".

1970—Subsec. (a). Pub. L. 91–375 struck out ", in the postal field service," after "limited appointment" in introductory parenthetical text.

Statutory Notes and Related Subsidiaries

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective Date

Pub. L. 90–105, §4, Oct. 11, 1967, 81 Stat. 274, provided that:

"(a) This section and section 3 of this Act [amending provisions set out as a note under section 3101 of this title] shall become effective on the date of enactment of this Act [Oct. 11, 1967].

"(b) Subject to subsection (c) of this section, the first section and section 2 of this Act [enacting this section and section 3303 of former Title 39, The Postal Service] shall become effective on the one hundred and twentieth day following the date of enactment of this Act [Oct. 11, 1967].

"(c) For the purpose of the application of section 3304a(b) of title 5, United States Code, as enacted by this Act, in the case of an individual who, prior to the effective date prescribed by subsection (b) of this section, shall have completed the 3-year period referred to in such section 3304a(b), such individual shall be deemed to have completed such 3-year period on such effective date."

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 90–83, §1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 96–54, §2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 635 (last 24 words of 6th sentence).	Jan. 16, 1883, ch. 27, §3 (last 24 words of 6th sentence), 22 Stat. 404.
(b)	5 U.S.C. 859.	June 27, 1944, ch. 287, §10, 58 Stat. 390. Jan. 19, 1948, ch. 1, §3, 62 Stat. 3. Dec. 27, 1950, ch. 1151, §2(b), 64 Stat. 1117.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

This section amends various sections [§§3305, 3309, 3318] of title 5, United States Code, to reflect the redesignation of paragraphs (3)(B) through (F) of section 2108 of title 5 as paragraphs (3)(C) through (G) by section 1(6) of this bill.

Editorial Notes

Amendments

1979—Subsec. (a). Pub. L. 96–54, §2(a)(14), substituted "Office of Personnel Management" for "Civil Service Commission".

Subsec. (b). Pub. L. 96–54, §2(a)(15), substituted "Office" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

[§3306. Repealed. Pub. L. 95–228, §1, Feb. 10, 1978, 92 Stat. 25]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419, related to apportionment of appointments in the departmental service in the District of Columbia among the States, territories, etc.

§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)(1) Except as provided in paragraph (2), 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.

(2)(A) In the case of the conversion of an agency function from performance by a contractor to performance by an employee of the agency, the head of the agency, in consultation with the Director of the Office of Personnel Management, may waive any maximum limit of age, determined or fixed for positions within such agency under paragraph (1), if necessary in order to promote the recruitment or appointment of experienced personnel.

(B) For purposes of this paragraph—

(i) the term "agency" means the Department of Defense or a military department; and

(ii) the term "head of the agency" means—

(I) in the case of the Department of Defense, the Secretary of Defense; and

(II) in the case of a military department, the Secretary of such military department.

(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).

(g) The Secretary of Homeland Security may determine and fix the maximum age limit for an original appointment to a position as a customs and border protection officer, as defined by section 8401(36).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 92–297, §2(a), May 16, 1972, 86 Stat. 141; Pub. L. 93–350, §1, July 12, 1974, 88 Stat. 355; Pub. L. 96–347, §1(b), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 100–238, title I, §103(a)(1), Jan. 8, 1988, 101 Stat. 1744; Pub. L. 105–261, div. C, title XXXI, §3154(a), Oct. 17, 1998, 112 Stat. 2254; Pub. L. 110–161, div. E, title V, §535(c), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 112–81, div. A, title XI, §1107, Dec. 31, 2011, 125 Stat. 1614.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 638b (less proviso).	June 27, 1956, ch. 452, §302 (less proviso), 70 Stat. 355.

The prohibition is restated in positive form. The word "officers" is omitted as included in "employees" in view of the definition of "employee" in section 2105.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

For definition of Secretary, referred to in subsec. (b), see section 2109 of this title.

Amendments

2011—Subsec. (e). Pub. L. 112–81 designated existing provisions as par. (1), substituted "Except as provided in paragraph (2), the" for "The", and added par. (2).

2007—Subsec. (g). Pub. L. 110–161 added subsec. (g).

1998—Subsec. (a). Pub. L. 105–261, §3154(a)(1), substituted "(d), (e), and (f)" for "and (d)".

Subsec. (f). Pub. L. 105–261, §3154(a)(2), added subsec. (f).

1988—Subsec. (d). Pub. L. 100–238, §103(a)(1)(A), substituted "may" for "may, with the concurrence of such agent as the President may designate,".

Subsec. (e). Pub. L. 100–238, §103(a)(1)(B), added subsec. (e).

1980—Subsec. (b). Pub. L. 96–347 substituted "Secretary" for "Secretary of Transportation".

1974—Subsec. (a). Pub. L. 93–350, §1(1), inserted reference to subsec. (d).

Subsec. (d). Pub. L. 93–350, §1(2), added subsec. (d).

1972—Pub. L. 92–297 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2007 Amendment; Transition Rules

Pub. L. 110–161, div. E, title V, §535(e), Dec. 26, 2007, 121 Stat. 2077, provided that:

"(1) Effective date.—The amendments made by this section [amending this section and sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title] shall become effective on the later of June 30, 2008, or the first day of the first pay period beginning at least 6 months after the date of the enactment of this Act [Dec. 26, 2007].

"(2) Transition rules.—

"(A) Nonapplicability of mandatory separation provisions to certain individuals.—The amendments made by subsections (a)(3) and (b)(6) [amending sections 8335 and 8425 of this title], respectively, shall not apply to an individual first appointed as a customs and border protection officer before the effective date under paragraph (1).

"(B) Treatment of prior cbpo service.—

"(i) General rule.—Except as provided in clause (ii), nothing in this section [amending this section and sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title and enacting provisions set out as a note under this section] or any amendment made by this section shall be considered to apply with respect to any service performed as a customs and border protection officer before the effective date under paragraph (1).

"(ii) Exception.—Service described in section 8331(31) or 8401(36) of title 5, United States Code (as amended by this section) rendered before the effective date under paragraph (1) may be taken into account to determine if an individual who is serving on or after such effective date then qualifies as a customs and border protection officer by virtue of holding a supervisory or administrative position in the Department of Homeland Security.

"(C) Minimum annuity amount.—The annuity of an individual serving as a customs and border protection officer on the effective date under paragraph (1) pursuant to an appointment made before that date shall, to the extent that its computation is based on service rendered as a customs and border protection officer on or after that date, be at least equal to the amount that would be payable—

"(i) to the extent that such service is subject to the Civil Service Retirement System, by applying section 8339(d) of title 5, United States Code, with respect to such service; and

"(ii) to the extent such service is subject to the Federal Employees' Retirement System, by applying section 8415(d) [now 8415(e)] of title 5, United States Code, with respect to such service.

"(D) Rule of construction.—Nothing in the amendment made by subsection (c) [amending this section] shall be considered to apply with respect to any appointment made before the effective date under paragraph (1).

"(3) Election.—

"(A) Incumbent defined.—For purposes of this paragraph, the term 'incumbent' means an individual who is serving as a customs and border protection officer on the date of the enactment of this Act.

"(B) Notice requirement.—Not later than 30 days after the date of the enactment of this Act, the Director of the Office of Personnel Management shall take measures reasonably designed to ensure that incumbents are notified as to their election rights under this paragraph, and the effect of making or not making a timely election.

"(C) Election available to incumbents.—

"(i) In general.—An incumbent may elect, for all purposes, either—

"(I) to be treated in accordance with the amendments made by subsection (a) or (b) [amending sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title], as applicable; or

"(II) to be treated as if subsections (a) and (b) had never been enacted.

  "Failure to make a timely election under this paragraph shall be treated in the same way as an election made under subclause (I) on the last day allowable under clause (ii).

"(ii) Deadline.—An election under this paragraph shall not be effective unless it is made at least 14 days before the effective date under paragraph (1).

"(4) Definition.—For purposes of this subsection, the term 'customs and border protection officer' has the meaning given such term by section 8331(31) or 8401(36) of title 5, United States Code (as amended by this section).

"(5) Exclusion.—Nothing in this section or any amendment made by this section shall be considered to afford any election or to otherwise apply with respect to any individual who, as of the day before the date of the enactment of this Act—

"(A) holds a position within U.S. Customs and Border Protection; and

"(B) is considered a law enforcement officer for purposes of subchapter III of chapter 83 or chapter 84 of title 5, United States Code, by virtue of such position."

Effective Date of 1988 Amendment

Pub. L. 100–238, title I, §103(f), Jan. 8, 1988, 101 Stat. 1745, provided that: "This section, and the amendments made by this section [amending this section and sections 8401 and 8704 of this title and enacting provisions set out as a note under section 8334 of this title], shall be effective as of January 1, 1987."

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date of 1974 Amendment

Pub. L. 93–350, §7, July 12, 1974, 88 Stat. 356, provided that: "The amendments made by the first section [amending this section], and sections 2(b), 5, and 6 [amending sections 8331, 8336, and 8339 of this title], of this Act shall become effective on the date of enactment of this Act [July 12, 1974]. The amendments made by sections 2(a) and 3 [amending sections 8331 and 8334 of this title] of this Act shall become effective at the beginning of the first applicable pay period which begins after December 31, 1974. The amendment made by section 4 of this Act [amending section 8335 of this title] shall become effective on January 1, 1978."

Effective Date of 1972 Amendment

Amendment by Pub. L. 92–297 effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as an Effective Date note under section 3381 of this title.

Regulations

Pub. L. 110–161, div. E, title V, §535(d), Dec. 26, 2007, 121 Stat. 2077, provided that: "Any regulations necessary to carry out the amendments made by this section [amending this section and sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title] shall be prescribed by the Director of the Office of Personnel Management in consultation with the Secretary of Homeland Security."

United States Park Police; Age Limits for Original Appointments

Pub. L. 91–73, Sept. 26, 1969, 83 Stat. 116, which provided for age limits for appointments to the United States Park Police, was repealed by Pub. L. 92–297, §11, May 16, 1972, 86 Stat. 145, effective at the end of the 89th day after May 16, 1972. The Secretary of the Interior may fix age limits for appointment under subsec. (c) of this section.

Executive Documents

Ex. Ord. No. 11817. Office of Personnel Management Designated Agent To Concur With Agency Determination Fixing Age Limits for Making Original Appointments Respecting Law Enforcement Officer and Firefighter Positions

Ex. Ord. No. 11817, Nov. 5, 1974, 39 F.R. 39427, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 3307(d) of title 5 of the United States Code, as added by the first section of the Act of July 12, 1974 (Public Law 93–350; 88 Stat. 355), I hereby designate the Office of Personnel Management as the agency to concur with determinations made by agencies to 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 title 5 of the United States Code. The designation made by this order shall be effective as of October 15, 1974.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 854 (less 1st 2 sentences).	June 27, 1944, ch. 287, §5 (less 1st 2 sentences), 58 Stat. 388.

The prohibition is restated in positive form. The words "The Civil Service Commission or other examining agency" are added because these are the only agencies to which the prohibition could apply.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively, wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 90–83, §1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 105–85, div. A, title XI, §1102(b), Nov. 18, 1997, 111 Stat. 1922.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 852 (1st sentence).	June 27, 1944, ch. 287, §3 (less proviso), 58 Stat. 388.
		Jan. 19, 1948, ch. 1, §2, 62 Stat. 3.
		Dec. 27, 1950, ch. 1151, §2(a), 64 Stat. 1117.
		July 14, 1952, ch. 728, §2, 66 Stat. 627.
		Aug. 14, 1953, ch. 485, §1(a) "Sec. 3 (1st sentence)", 67 Stat. 581.

The word "competitive" is added before "service" for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1997—Par. (2). Pub. L. 105–85 substituted "section 2108(3)(A)–(B)" for "section 2108(3)(A)".

1967—Cl. (1). Pub. L. 90–83 substituted "section 2108(3)(C)–(G)" for "section 2108(3)(B)–(F)." See Historical and Revision Notes under section 3305 of this title.

§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 (other than for positions of housekeeping aides in the Department of Veterans Affairs), competition is restricted to preference eligibles as long as preference eligibles are available.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 117–168, title IX, §905, Aug. 10, 2022, 136 Stat. 1811.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 852 (2d sentence).	June 27, 1944, ch. 287, §3 (proviso), 58 Stat. 388. Aug. 14, 1953, ch. 485, §1(a) "Sec. 3 (2d sentence)", 67 Stat. 581.

The words "in the competitive service" are added for clarity. The reference to "examinations held prior to December 31, 1954, for positions of apprentices" is omitted as obsolete. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2022—Pub. L. 117–168 inserted "(other than for positions of housekeeping aides in the Department of Veterans Affairs)" after "competitive service".

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 853.	June 27, 1944, ch. 287, §4, 58 Stat. 388.

The words "for the competitive service" are added after "examinations" for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

In paragraph (1), the words "service in the armed forces" are substituted for "in the military or naval service of the United States" on authority of the Act of July 26, 1947, ch. 343, §305(a), 61 Stat. 508. The word "actual" is omitted as surplusage.

In paragraph (2), the words "material to the position for which examined" are substituted for "valuable" for clarity.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95–454, title III, §307(c), title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 854 (1st 2 sentences, less so much as relates to promotion, retention, and transfer).	June 27, 1944, ch. 287, §5 (1st 2 sentences, less so much as relates to promotion, retention, and transfer), 58 Stat. 388.

The section is restated for clarity and conciseness. The words "for which examination is given" and "for which the examination is given" are omitted as surplusage. The application of this section to the excepted service in the executive branch and the government of the District of Columbia is preserved by section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 designated existing provisions as subsec. (a), substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 856.	June 27, 1944, 287, §7, 58 Stat. 389. Aug. 14, 1953, ch. 485, §1(b), 67 Stat. 581.

The section is restated for clarity and conciseness. The words "for the competitive service" are added for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia is carried into section 3320. The words "employment lists" are omitted as included in "appropriate registers or lists of eligibles".

In paragraph (1), the words "in GS–9 or higher" are substituted for "in grade 9 or higher of the General Schedule of the Classification Act of 1949, as amended" in view of the codification of the Act in this title, and, in specific sections 5104 and 5332.

In paragraph (2)(A), the term "disabled veterans" is substituted for "preference eligibles" in view of the definition of "disabled veteran" in section 2108(2).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 865.	June 27, 1944, ch. 287, §16, 58 Stat. 391.

The last 28 words of former section 865 relating to recertification and reappointments are omitted since under sections 3317 and 3318(a) certification and appointment follow from placing on registers.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 96–54, §2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 864 (1st sentence).	June 27, 1944, ch. 287 §15 (1st sentence), 58 Stat. 391.
(b)	5 U.S.C. 863 (2d proviso).	June 27, 1944, ch. 287, §14 (2d proviso), 58 Stat. 391.

In subsection (a), the term "Executive agency" is substituted for "any agency or project of the Federal Government" on authority of former section 869. The last 28 words of the 1st sentence of former section 864 relating to recertification and reappointment are omitted since under sections 3317 and 3318(a) certification and appointment follow from placing on registers.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1979—Subsec. (a). Pub. L. 96–54, §2(a)(14), substituted "Office of Personnel Management" for "Civil Service Commission".

Subsec. (b). Pub. L. 96–54, §2(a)(15), substituted "Office" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

[§3315a. Repealed. Pub. L. 93–416, §22(c), Sept. 7, 1974, 88 Stat. 1150]

Section, added Pub. L. 90–83 §1(9)(A), Sept. 11, 1967, 81 Stat. 197, related to registration by Civil Service Commission of employees receiving compensation for injuries for certification for appointment to vacant positions.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 862.	June 27, 1944, ch. 287, §13, 58 Stat. 390.

The word "authority" is substituted for "officer" in recognition of the several appointing authorities named in section 2105(a)(1).

The words "in the competitive service, an Executive agency, or the government of the District of Columbia" are substituted for "in the civil service, Federal, or District of Columbia, or in any establishment, agency, bureau, administration, project, or department, temporary or permanent" on authority of former section 869.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 95–454, title IX, §906(a)(3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, §2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Repeal and Reenactment of Section

Pub. L. 115–232, div. A, title XI, §1107(a), (d), Aug. 13, 2018, 132 Stat. 2002, 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is repealed and a new section 3317 is enacted to read as follows:

§3317. Competitive service; certification using numerical ratings

(a) Certification.—

(1) In general.—The Director of the Office of Personnel Management, or the head of an agency to which the Director has delegated examining authority under section 1104(a)(2), shall certify a sufficient number of names from the top of the appropriate register or list of eligibles, as determined pursuant to regulations prescribed under subsection (c), and provide a certificate with such names to an appointing authority that has requested a certificate of eligibles to consider when filling a job in the competitive service.

(2) Minimum number of names certified.—Unless otherwise provided for in regulations prescribed under subsection (c), the number of names certified under paragraph (1) shall be not less than three.

(b) Discontinuance of Certification.—When an appointing authority, for reasons considered sufficient by the Director or head of an agency, has three times considered and passed over a preference eligible who was certified from a register, the Director or head of any agency may discontinue certifying the preference eligible for appointment. The Director or the head of an agency shall provide to such preference eligible notice of the intent to discontinue certifying such preference eligible prior to the discontinuance of certification.

(c) Regulations.—The Director shall prescribe regulations for the administration of this section. Such regulations shall include the establishment of mechanisms for identifying the eligibles who will be considered for each vacancy. Such mechanisms may include cut-off scores.

(d) Definition.—In this section, the term "Director" means the Director of the Office of Personnel Management.

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 857 (1st sentence and 2d proviso).	June 27, 1944, ch. 287, §8 (1st sentence and 2d proviso), 58 Stat. 389.

In subsection (a), the word "authority" is substituted for "officer" in recognition of the several appointing authorities named in section 2105(a)(1). The words "in the competitive service" have been added for clarity. Application of the section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.

In subsection (b), the word "thereafter" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1979—Subsec. (a). Pub. L. 96–54, §2(a)(14), substituted "Office of Personnel Management" for "Civil Service Commission".

Subsec. (b). Pub. L. 96–54, §2(a)(15), amended subsec. (b) in same manner as amendment by Pub. L. 95–454. See 1978 Amendment note set out below.

1978—Subsec. (b). Pub. L. 95–454 which purported to amend section 3317b of this title by substituting "Office" for "Commission" was executed to subsec. (b) of this section as the probable intent of Congress.

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Pub. L. 115–232, div. A, title XI, §1107(d), Aug. 13, 2018, 132 Stat. 2005, provided that:

"(1) In general.—The amendments made by this section [enacting this section and section 3318 of this title, amending sections 3319 and 3320 of this title, and repealing this section and section 3318 of this title] shall take effect on the date on which the Director of the Office of Personnel Management issues final regulations to implement sections 3317, 3318, and 3319 of title 5, United States Code, as amended or added by this section.

"(2) Regulations required.—The Director shall issue regulations under paragraph (1) not later than one year after the date of enactment of this section [Aug. 13, 2018]."

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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) Other Appointing Authorities.—

(1) In general.—During the 240-day period beginning on the date of issuance of a certificate of eligibles under section 3317(a), an appointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the "other appointing authority") may select an individual from that certificate in accordance with this subsection for an appointment to a position that is—

(A) in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the "original position"); and

(B) at a similar grade level as the original position.

(2) Applicability.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority.

(3) Requirements.—The selection of an individual under paragraph (1)—

(A) shall be made in accordance with subsection (a); and

(B) subject to paragraph (4), may be made without any additional posting under section 3327.

(4) Internal notice.—Before selecting an individual under paragraph (1), and subject to the requirements of any collective bargaining obligation of the other appointing authority, the other appointing authority shall—

(A) provide notice of the available position to employees of the other appointing authority;

(B) provide up to 10 business days for employees of the other appointing authority to apply for the position; and

(C) review the qualifications of employees submitting an application.

(5) Collective bargaining obligations.—Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.

(c)(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.

(d) 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 90–83, §1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95–454, title III, §307(d), title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224; Pub. L. 114–137, §2(a), Mar. 18, 2016, 130 Stat. 310.)

Repeal and Reenactment of Section

Pub. L. 115–232, div. A, title XI, §1107(a), (d), Aug. 13, 2018, 132 Stat. 2003, 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is repealed and a new section 3318 is enacted to read as follows:

§3318. Competitive service; selections using numerical ratings

(a) In General.—An appointing authority shall select for appointment from the eligibles certified for appointment on a certificate furnished under section 3317(a), unless objection to one or more of the individuals certified is made to, and sustained by, the Director of the Office of Personnel Management or the head of an agency to which the Director has delegated examining authority under section 1104(a)(2), for proper and adequate reason under regulations prescribed by the Director.

(b) Other Appointing Authorities.—

(1) In general.—During the 240-day period beginning on the date of issuance of a certificate of eligibles under section 3317(a), an appointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the "other appointing authority") may select an individual from that certificate in accordance with this subsection for an appointment to a position that is—

(A) in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the "original position"); and

(B) at a similar grade level as the original position.

(2) Applicability.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority.

(3) Requirements.—The selection of an individual under paragraph (1)—

(A) shall be made in accordance with subsection (a); and

(B) subject to paragraph (4), may be made without any additional posting under section 3327.

(4) Internal notice.—Before selecting an individual under paragraph (1), the other appointing authority shall—

(A) provide notice of the available position to employees of the other appointing authority;

(B) provide up to 10 business days for employees of the other appointing authority to apply for the position; and

(C) review the qualifications of employees submitting an application.

(c) Pass Over.—

(1) In general.—Subject to subparagraph (2), if an appointing authority proposes to pass over a preference eligible certified for appointment under subsection (a) and select an individual who is not a preference eligible, the appointing authority shall file written reasons with the Director or the head of the agency for passing over the preference eligible. The Director or the head of the agency 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 Director or the head of the agency 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). When the Director or the head of the agency has completed review of the proposed pass-over of the preference eligible, the Director or the head of the agency shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings.

(2) Preference eligible individuals who have a compensable service-connected disability.—In the case of a preference eligible described in section 2108(3)(C) who has a compensable service-connected disability of 30 percent or more, the appointing authority shall notify the Director under paragraph (1) and, at the same time, notify the preference eligible of the proposed pass-over, of the reasons for the proposed pass-over, and of the individual's right to respond to those reasons to the Director within 15 days of the date of the notification. The Director shall, before completing the review under paragraph (1), require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address.

(3) Further consideration not required.—When a preference eligible, for reasons considered sufficient by the Director, or in the case of a preference eligible described in paragraph (1), by the head of an agency, has been passed over in accordance with this subsection for the same position, the appointing authority is not required to give further consideration to that preference eligible while selecting from the same list for a subsequent appointment to such position.

(4) Delegation prohibition.—In the case of a preference eligible described in paragraph (2), the functions of the Director under this subsection may not be delegated to an individual who is not an officer or employee of the Office of Personnel Management.

(d) Special Rule Regarding Reemployment Lists.—When the names of preference eligibles are on a reemployment list appropriate for the position to be filled, an appointing authority may appoint from a register of eligibles established after examination only an individual who qualifies as a preference eligible under subparagraph (C), (D), (E), (F), or (G) of section 2108(3).

(e) Consideration Not Required.—In accordance with regulations prescribed by the Director, an appointing officer is not required to consider an eligible who has been considered by the appointing officer for three separate appointments from the same or different certificates for the same position.

(f) Regulations.—The Director shall prescribe regulations for the administration of this section.

(d)[sic] Definition.—In this section, the term "Director" means the Director of the Office of Personnel Management.

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a), (b)	5 U.S.C. 633(2)2.	Jan. 16, 1883, ch. 27, §2(2)2, 22 Stat. 404.
	5 U.S.C. 857 (less 1st sentence, 2d proviso, and last sentence).	June 27, 1944, ch. 287, §8 (less 1st sentence, 2d proviso, and last sentence), 58 Stat. 389. Aug. 14, 1953, ch. 485, §2, 67 Stat. 582.
(c)	5 U.S.C. 864 (less 1st sentence).	June 27, 1944, ch. 287, §15 (less 1st sentence), 58 Stat. 391.

The word "authority" is substituted for "officer" in recognition of the several appointing authorities named in section 2105(a)(1).

In subsection (a), the provisions of former section 633(2)2 are merged in the requirement of former section 857, since the certificate must be of the three highest on the register and the nominating or appointing employee may select one of the three.

In subsection (c), the prohibition in former section 864 is restated in positive form. The words "an individual who qualifies as a preference eligible under section 2108(3)(B)–(F)" are substituted for "ten-point preference eligibles".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2016—Subsecs. (b) to (d). Pub. L. 114–137 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.

1978—Subsec. (a). Pub. L. 95–454, §906(a)(2), (3), substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively.

Subsec. (b). Pub. L. 95–454, §307(d), designated existing provisions as par. (1), substituted provisions respecting authority of the Office with respect to the selection procedures applicable, for provisions respecting authority of the Commission with respect to the selection procedures applicable, and added pars. (2) to (4).

1967—Subsec. (c). Pub. L. 90–83 substituted "section 2108(3)(C)–(G)" for "section 2108(3)(B)–(F)." See Historical and Revision Notes under section 3305 of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Repeal and reenactment of section effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as a note under section 3317 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Regulations

Pub. L. 114–137, §2(d), Mar. 18, 2016, 130 Stat. 312, provided that: "Not later than 1 year after the date of enactment of this Act [Mar. 18, 2016], the Director of the Office of Personnel Management shall issue an interim final rule with comment to carry out the amendments made by this section [amending this section and sections 3319 and 9510 of this title]."

§3319. Alternative ranking and selection procedures

(a) The Office, in exercising its authority under section 3304, or an agency to which the Office has delegated examining authority under section 1104(a)(2), may establish category rating systems for evaluating applicants for positions in the competitive service, under 2 or more quality categories based on merit consistent with regulations prescribed by the Office of Personnel Management, rather than assigned individual numerical ratings.

(b) Within each quality category established under subsection (a), preference-eligibles shall be listed ahead of individuals who are not preference eligibles. For other than scientific and professional positions at GS–9 of the General Schedule (equivalent or higher), qualified preference-eligibles who have a compensable service-connected disability of 10 percent or more shall be listed in the highest quality category.

(c) Selection.—

(1) In general.—An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories.

(2) Use by other appointing officials.—Under regulations prescribed by the Office of Personnel Management, appointing officials other than the appointing official described in paragraph (1) (in this subsection referred to as the "other appointing official") may select an applicant for an appointment to a position that is—

(A) in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the "original position"); and

(B) at a similar grade level as the original position.

(3) Applicability.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority.

(4) Requirements.—The selection of an individual under paragraph (2)—

(A) shall be made in accordance with this subsection; and

(B) subject to paragraph (5), may be made without any additional posting under section 3327.

(5) Internal notice.—Before selecting an individual under paragraph (2), and subject to the requirements of any collective bargaining obligation of the other appointing authority (within the meaning given that term in section 3318(b)(1)), the other appointing official shall—

(A) provide notice of the available position to employees of the appointing authority employing the other appointing official;

(B) provide up to 10 business days for employees of the other appointing authority to apply for the position; and

(C) review the qualifications of employees submitting an application.

(6) Collective bargaining obligations.—Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.

(7) Preference eligibles.—Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section ¹ 3317(b) and ¹ 3318(c), as applicable, are satisfied.

(d) Each agency that establishes a category rating system under this section shall submit in each of the 3 years following that establishment, a report to Congress on that system including information on—

(1) the number of employees hired under that system;

(2) the impact that system has had on the hiring of veterans and minorities, including those who are American Indian or Alaska Natives, Asian, Black or African American, and native Hawaiian or other Pacific Islanders; and

(3) the way in which managers were trained in the administration of that system.

(e) The Office of Personnel Management may prescribe such regulations as it considers necessary to carry out the provisions of this section.

(Added Pub. L. 107–296, title XIII, §1312(a)(2), Nov. 25, 2002, 116 Stat. 2290; amended Pub. L. 114–137, §2(b), Mar. 18, 2016, 130 Stat. 311; Pub. L. 115–232, div. A, title XI, §1107(b)(1), Aug. 13, 2018, 132 Stat. 2005.)

Amendment of Section

Pub. L. 115–232, div. A, title XI, §1107(b)(1), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is amended—

(1) by amending the section heading to read as follows: "§3319. Competitive service; selection using category rating"; and

(2) in subsection (c), by striking paragraph (6), redesignating paragraph (7) as paragraph (6), and amending paragraph (6) (as so redesignated) to read as follows:

(6) Preference eligibles.—

(A) Satisfaction of certain requirements.—Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of sections 3317(b) and 3318(c), as applicable, are satisfied.

(B) Further consideration not required.—When a preference eligible, for reasons considered sufficient by the Director, or in the case of a preference eligible described in section 3318(c)(1), by the head of an agency, has been passed over in accordance with section 3318(c) for the same position, the appointing authority is not required to give further consideration to that preference eligible while selecting from the same list for a subsequent appointment to such position.

(C) List of eligibles issued from a standing register; discontinuation of certification.—In the case of lists of eligibles issued from a standing register, when an appointing authority, for reasons considered sufficient by the Director or the head of an agency, 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 in accordance with regulations prescribed by the Director.

See 2018 Amendment notes below.

Editorial Notes

References in Text

The General Schedule, referred to in subsec. (b), is set out under section 5332 of this title.

Prior Provisions

A prior section 3319, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421, related to prohibitions on employment of members of same family in the competitive service, prior to repeal by Pub. L. 95–454, title III, §307(h)(1), title IX, §907, Oct. 13, 1978, 92 Stat. 1149, 1227, effective 90 days after Oct. 13, 1978.

Amendments

2018—Pub. L. 115–232, §1107(b)(1)(A), substituted "Competitive service; selection using category rating" for "Alternative ranking and selection procedures" in section catchline.

Subsec. (c)(6). Pub. L. 115–232, §1107(b)(1)(B), redesignated par. (7) as (6) and amended it generally. Prior to amendment, text read as follows: "Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section 3317(b) and 3318(c), as applicable, are satisfied."

Pub. L. 115–232, §1107(b)(1)(B), struck out par. (6). Text read as follows: "Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71."

Subsec. (c)(7). Pub. L. 115–232, §1107(b)(1)(B), redesignated par. (7) as (6).

2016—Subsec. (c). Pub. L. 114–137 added subsec. (c) and struck out former subsec. (c) which read as follows:

"(1) An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories.

"(2) Notwithstanding paragraph (1), the appointing official may not pass over a preference-eligible in the same category from which selection is made, unless the requirements of section 3317(b) or 3318(b), as applicable, are satisfied."

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as a note under section 3317 of this title.

Effective Date

Section effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as a note under section 101 of Title 6, Domestic Security.

¹ So in original.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 115–232, div. A, title XI, §1107(b)(2), Aug. 13, 2018, 132 Stat. 2005.)

Amendment of Section

Pub. L. 115–232, div. A, title XI, §1107(b)(2), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is amended by striking "sections 3308–3318" and inserting "sections 3308 through 3319". See 2018 Amendment note below.

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 858.	June 27, 1944, ch. 287, §9, 58 Stat. 389.
	5 U.S.C. 869.	June 27, 1944, ch. 287, §20, 58 Stat. 391.

Former sections 858 and 869 are combined and restated for clarity and to conform to section 3318(a). The word "authority" is substituted for "officer" in recognition of the several appointing authorities named in section 2105(a)(1). The words "shall select for appointment to each vacancy in the expected 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" are substituted for "In the unclassified Federal, and District of Columbia, civil service, and in all other positions and employment hereinbefore referred to in (c) of section 851 of this title . . . shall make selection from the qualified applicants in accordance with the provisions of this chapter". The reference to the excepted service "in the executive branch" is substituted for the exception of the legislative and judicial branches in former section 869. Former section 869 did not prohibit the application of those provisions of the Act of June 27, 1944, which relate to the competitive service in the legislative or judicial branch by reason of the specific provisions of section 311 of the Act of June 10, 1921, as amended (31 U.S.C. 52); 28 U.S.C. 602; and Executive Order No. 67 of June 13, 1895. The reference to appointments of postmasters is omitted from this section since those referred to are in the competitive service. The application of former section 869 to the remainder of the Act of June 27, 1944, is covered by the sections into which the remainder is carried (see Table I).

This section merely continues, and does not in any way change, the requirements in former section 858 relative to the selection of applicants for positions in the excepted service. Under this section, the Federal Bureau of Investigation and other agencies having positions in the excepted service will continue to fill those positions in the same manner that they have been filled under former section 858. Such excepted appointments are appointments authorized to be made without regard to the statutes, rules, and regulations governing appointments in the competitive service and this is not changed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2018—Pub. L. 115–232 substituted "sections 3308 through 3319" for "sections 3308–3318".

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as an Effective Date of Repeal note under section 3317 of this title.

Assistance of United States Civil Service Commission in Developing Merit System for District of Columbia

Pub. L. 93–198, title VII, §734, Dec. 24, 1973, 87 Stat. 823, authorized the United States Civil Service Commission to advise and assist the District of Columbia Mayor and Council in the further development of the merit system or systems required by the District of Columbia charter, which was approved on May 7, 1974, and authorized the Commission to enter into agreements with the District government to make available its registers of eligibles as a recruiting source to fill District positions as needed, with the costs of any specific services furnished by the Civil Service Commission to be compensated for under the provisions of section 685a of former Title 31, Money and Finance [31 U.S.C. 1537].

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 95–454, title III, §303(a), Oct. 13, 1978, 92 Stat. 1146; Pub. L. 100–325, §2(d), May 30, 1988, 102 Stat. 581; Pub. L. 114–92, div. A, title XI, §1105(c)(1), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, §1106(b)(2)(A), Dec. 27, 2021, 135 Stat. 1950.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 633(2)4.	Jan. 16, 1883, ch. 27. §2(2)4, 22 Stat. 404.

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. Wording is changed because in practice an appointment is not made after probation. The words "or employment" are omitted as included within "appointment".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2021—Subsec. (c). Pub. L. 117–81 struck out ", or any individual covered by section 1599e of title 10" before period at end.

2015—Subsec. (c). Pub. L. 114–92 inserted ", or any individual covered by section 1599e of title 10" before period at end.

1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

1978—Pub. L. 95–454 substituted "probationary period" for "probation; period of" in section catchline, designated existing provisions as subsec. (a), substituted provisions authorizing the President to take necessary action, for provisions authorizing the President to prescribe rules, and added subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applied as if effective Dec. 31, 2022, to correspond to the effective date of the repeal of section 1599e of Title 10, Armed Forces, to reflect the probable intent of Congress. See Effective Date of Repeal note under section 1599e of Title 10.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§3322. Voluntary separation before resolution of personnel investigation

(a) With respect to any employee occupying a position in the competitive service or the excepted service who is the subject of a personnel investigation and resigns from Government employment prior to the resolution of such investigation, the head of the agency from which such employee so resigns shall, if an adverse finding was made with respect to such employee pursuant to such investigation, make a permanent notation in the employee's official personnel record file. The head shall make such notation not later than 40 days after the date of the resolution of such investigation.

(b) Prior to making a permanent notation in an employee's official personnel record file under subsection (a), the head of the agency shall—

(1) notify the employee in writing within 5 days of the resolution of the investigation and provide such employee a copy of the adverse finding and any supporting documentation;

(2) provide the employee with a reasonable time, but not less than 30 days, to respond in writing and to furnish affidavits and other documentary evidence to show why the adverse finding was unfounded (a summary of which shall be included in any notation made to the employee's personnel file under subsection (d)); and

(3) provide a written decision and the specific reasons therefore to the employee at the earliest practicable date.

(c) An employee is entitled to appeal the decision of the head of the agency to make a permanent notation under subsection (a) to the Merit Systems Protection Board under section 7701.

(d)(1) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the agency head shall make a notation in the employee's official personnel record file indicating that an appeal disputing the notation is pending not later than 2 weeks after the date on which such appeal was filed.

(2) If the head of the agency is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) from the employee's official personnel record file.

(3) If the employee is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) and the notation of an adverse finding made under subsection (a) from the employee's official personnel record file.

(e) In this section, the term "personnel investigation" includes—

(1) an investigation by an Inspector General; and

(2) an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service under chapter 43 or chapter 75.

(Added Pub. L. 114–328, div. A, title XI, §1140(a), Dec. 23, 2016, 130 Stat. 2470.)

Editorial Notes

Prior Provisions

A prior section 3322, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422, related to temporary appointments after age 70 in the competitive service, prior to repeal by Pub. L. 95–256, §5(b)(1), Apr. 6, 1978, 92 Stat. 191, effective Sept. 30, 1978.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 114–328, div. A, title XI, §1140(b), Dec. 23, 2016, 130 Stat. 2471, provided that: "The amendment made by subsection (a) [enacting this section] shall apply to any employee described in section 3322 of title 5, United States Code, (as added by such subsection) who leaves the service after the date of enactment of this Act [Dec. 23, 2016]."

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 96–465, title II, §2314(a), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 98–224, §2, Mar. 2, 1984, 98 Stat. 47; Pub. L. 102–378, §2(10), Oct. 2, 1992, 106 Stat. 1347.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 715a.	June 30, 1932, ch. 314, §204, 47 Stat. 404.
(b)	5 U.S.C. 2263(a).	July 31, 1956, ch. 804, §401 "Sec. 13(a)", 70 Stat. 757.
(c)	22 U.S.C. 915(c).	Sept. 8, 1960, Pub. L. 86–723, §10(d), 74 Stat. 832.
(d)	33 U.S.C. 544a, 701l.	June 20, 1938, ch. 535, §5, 52 Stat. 805.

In subsection (a), the words "On and after July 1, 1932" are omitted as executed. The words "heretofore or hereafter" are omitted as unnecessary. The words "in the civil service" are substituted for "civilian service in any branch or service of the United States Government" and "to any appointive office, position, or employment under the United States" in view of the definition of "civil service" in section 2101.

In subsection (b), the words "receiving annuity from the Civil Service Retirement and Disability Fund" are substituted for "heretofore or hereafter retired under this chapter". The word "authority" is substituted for "officer" in recognition of the several appointing authorities named in section 2105(a)(1).

In subsection (c), the words "Notwithstanding subsection (a) of this section" are substituted for "Notwithstanding the provisions of sections 62 and 715a of title 5" to reflect the codification of former section 715a in subsection (a) of this section and in view of the repeal of section 62 of title 5 by §402(a)(7) of the Act of Aug. 19, 1964, Pub. L. 88–448, 78 Stat. 492. The words "heretofore or hereafter" and "hereafter" are omitted as unnecessary. The words "in a position in the civil service" are substituted for "in Federal Government service in any appointive position" in view of the definition of "civil service" in section 2101. The word "authority" is substituted for "officer" in recognition of the several appointing authorities named in section 2105(a)(1).

In subsection (d), the words "Notwithstanding subsection (a) of this section" are substituted for "The provisions of section 715a of title 5 shall not be so construed as to prevent" to reflect the codification of former section 715a in subsection (a) of this section, and to conform to the style of this section. The words "under section 569a of title 33" are substituted for "under agreement as authorized by sections 569a, 584a and 607a of title 33" on authority of the provision contained in section 569a of title 33. The word "employee" is coextensive with and substituted for "civilian employee" in view of the definition of "employee" in section 2105. The last sentence is restated for clarity.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Section 812 of the Foreign Service Act of 1980, referred to in subsec. (c), is classified to section 4052 of Title 22, Foreign Relations and Intercourse.

Amendments

1992—Subsec. (b)(1). Pub. L. 102–378 substituted "annuitant, as defined by section 8331 or 8401," for "annuitant as defined by section 8331 of this title".

1984—Subsec. (b). Pub. L. 98–224 designated existing provisions as par. (1), substituted "the annuitant" for "he" and inserted ", other than an annuitant reappointed under paragraph (2) of this subsection,", and added par. (2).

1980—Subsec. (c). Pub. L. 96–465 substituted "member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980" for "Foreign Service officer retired under section 1001 or 1002 of title 22 or a Foreign Service staff officer or employee retired under section 1063 of title 22".

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–465 effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as an Effective Date note under section 3901 of Title 22, Foreign Relations and Intercourse.

§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 Director of the Office of Personnel Management on the basis of qualification standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director. 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 90–83, §1(10), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, §2(a)(17), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, §529 [title I, §101(b)(9)(C)(i), (ii)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 102–378, §2(11), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 110–372, §2(c)(2), Oct. 8, 2008, 122 Stat. 4044.)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1105(i).	June 20, 1958, Pub. L. 85–462, §10 "(i)", 72 Stat. 213. Sept. 13, 1960, Pub. L. 86–768, 74 Stat. 910.

In subsection (a), the words "in GS–16, 17, and 18" are substituted for "in grades 16, 17, and 18 of the General Schedule".

In subsection (a)(2), the words "by the President" are coextensive with and substituted for "by the President alone or by the President by and with the advice and consent of the Senate".

In subsection (a)(4)(A), the words "Office of Emergency Planning" are substituted for "Office of Defense Mobilization" on authority of 1958 Reorg. Plan No. 1, §2(a), effective July 1, 1958, 72 Stat. 1799, as amended Aug. 26, 1958, Pub. L. 85–763, 72 Stat. 861, and Sept. 22, 1961, Pub. L. 87–296, 75 Stat. 630. Reference to "President's Advisory Committee on Government Organization" is omitted since the Committee was abolished by Executive Order No. 10917, February 10, 1961.

In subsection (a)(4)(B), the words " 'Emergency Fund for the President' by the Treasury, Post Office, and Executive Office Appropriation Act, 1966" are substituted for " 'Emergency Fund for the President, National Defense' by the General Government Matters Appropriation Act, 1959" to reflect the heading and title of the current appropriation Act.

Subsection (b) is added on authority of former sections 1072 and 1072a, which are carried into section 5115.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

This section amends 5 U.S.C. 3324(a)(4)(A) to correct typographical errors.

Editorial Notes

References in Text

The Treasury, Post Office, and Executive Office Appropriation Act, 1966, referred to in subsec. (a)(4)(B), is Pub. L. 89–57, June 30, 1965, 79 Stat. 196. For classification of this Act to the Code, see Tables.

Amendments

2008—Subsec. (a). Pub. L. 110–372 substituted "the Director of the Office of Personnel Management on the basis of qualification standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director" for "the Office of Personnel Management" in introductory provisions.

1992—Pub. L. 102–378, §2(11)(A), substituted "GS–15" for "GA–15" in section catchline.

Subsec. (a)(1). Pub. L. 102–378, §2(11)(B), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "provided for in section 5108(c)(2) of this title;".

1990—Pub. L. 101–509, §529 [title I, §101(b)(9)(C)(ii)], which directed that "to positions classified above GA–15" be substituted for "at GS–16, 17, or 18" in section catchline, was executed by making the substitution for "at GS–16, 17, and 18", as the probable intent of Congress.

Subsec. (a). Pub. L. 101–509, §529 [title I, §101(b)(9)(C)(i)], substituted "classified above GS–15 pursuant to section 5108" for "in GS–16, 17, or 18".

1979—Subsec. (a)(4)(A). Pub. L. 96–54 struck out reference to Office of Emergency Planning.

1978—Subsecs. (a), (b). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission" and "Office" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–378 effective May 4, 1991, see section 9(b)(4) of Pub. L. 102–378, set out as a note under section 6303 of this title.

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–83 effective as of Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

§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 on the basis of standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director of the Office of Personnel Management.

(b) This section does not apply to positions established under section 3104(c).

(c) The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purpose of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 423; Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 102–378, §2(12), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 110–372, §2(c)(3), Oct. 8, 2008, 122 Stat. 4044.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 1162(a).	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 2(a)", 75 Stat. 790.
(b)	5 U.S.C. 1161(g) (2d sentence).	Oct. 11, 1962, Pub. L. 87–793, §1001(a)(2) "(g) (2d sentence)", 76 Stat. 863.

In subsection (a), the words "or its designee" are substituted for "or such officers or agents as the Commission may designate".

For repeal of the Act of Aug. 1, 1947, ch. 433, 61 Stat. 715, as amended, see revision note for section 3104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2008—Subsec. (a). Pub. L. 110–372, §2(c)(3)(A), substituted "on the basis of standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director of the Office of Personnel Management" for "or its designee for this purpose".

Subsec. (c). Pub. L. 110–372, §2(c)(3)(B), added subsec. (c).

1992—Subsec. (b). Pub. L. 102–378 substituted "section 3104(c)" for "section 3104(a)(7) of this title".

1978—Subsec. (a). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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; or

(2) the minimum rate of basic pay for the position has been increased under section 5305 of this title.

(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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 423; Pub. L. 96–54, §2(a)(14), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, §529 [title I, §101(b)(3)(A)], Nov. 5, 1990, 104 Stat. 1427, 1439; Pub. L. 114–328, div. A, title XI, §1111, Dec. 23, 2016, 130 Stat. 2450.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 3101 (as applicable to 5 U.S.C. 3103).	Aug. 19, 1964, Pub. L. 88–448, §101 (as applicable to §204), 78 Stat. 484.
(b), (c)	5 U.S.C. 3103.	Aug. 19, 1964, Pub. L. 88–448, §204, 78 Stat. 487.

In subsection (a), the definition of "armed forces" is omitted as unnecessary in view of the definition in section 2101.

In subsection (b), the words "position in the civil service" are substituted for "civilian office" in view of the definition of "civil service" in section 2101. The words "(including a nonappropriated fund instrumentality under the jurisdiction of the armed forces)" are added on authority of former section 3101(3).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2016—Subsec. (b)(3). Pub. L. 114–328 struck out par. (3) which read as follows: "a state of national emergency exists."

1990—Subsec. (b)(2). Pub. L. 101–509 substituted "5305" for "5303".

1979—Subsec. (b)(1). Pub. L. 96–54 substituted "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Suspension of Section

Pub. L. 101–510, div. A, title XII, §1206(f), Nov. 5, 1990, 104 Stat. 1661, provided that: "Section 3326 of title 5, United States Code, shall not be in effect for the period beginning on the date of the enactment of this Act [Nov. 5, 1990] and ending two years after such date."

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

§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.

(Added Pub. L. 95–454, title III, §309(a), Oct. 13, 1978, 92 Stat. 1151.)

Editorial Notes

Prior Provisions

A prior section 3327, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424, which prescribed standards for determination of qualifications of postmasters, including experience in postal field service, seniority, length of service, level of difficulty and responsibility of work, attendance, awards and commendations, and performance rating, was repealed by Pub. L. 91–375, §6(c)(7)(A), Aug. 12, 1970, 84 Stat. 776. See section 1001 of Title 39, Postal Service.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§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. 3802) 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) Subsection (a) shall not apply to an individual—

(1) who is a veteran;

(2) who provides evidence of active duty service to the Executive agency in which the individual seeks an appointment; and

(3) for whom the requirement to register under section 3 of the Military Selective Service Act (50 U.S.C. 3802) has terminated or is now inapplicable due to age.

(c) 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.

(d) In this section, the terms "active duty" and "veteran" have the meaning given those terms in section 101 of title 38.

(Added Pub. L. 99–145, title XVI, §1622(a)(1), Nov. 8, 1985, 99 Stat. 777; amended Pub. L. 100–180, div. A, title XII, §1249, Dec. 4, 1987, 101 Stat. 1167; Pub. L. 118–159, div. A, title XI, §1108, Dec. 23, 2024, 138 Stat. 2089.)

Editorial Notes

Amendments

2024—Subsec. (a)(1). Pub. L. 118–159, §1108(1), substituted "(50 U.S.C. 3802)" for "(50 U.S.C. App. 453)".

Subsecs. (b), (c). Pub. L. 118–159, §1108(2), (3), added subsec. (b) and redesignated former subsec. (b) as (c).

Subsec. (d). Pub. L. 118–159, §1108(4), added subsec. (d).

1987—Subsec. (b). Pub. L. 100–180 struck out "within the Office" after "for the adjudication" in second sentence and inserted at end "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."

¹ See References in Text note below.

§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) ¹ 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.

(Added Pub. L. 102–484, div. A, title V, §544(a), Oct. 23, 1992, 106 Stat. 2415; amended Pub. L. 104–106, div. A, title X, §1037(a), Feb. 10, 1996, 110 Stat. 431; Pub. L. 105–85, div. A, title XI, §1103, Nov. 18, 1997, 111 Stat. 1923; Pub. L. 106–398, §1 [[div. A], title X, §1087(f)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-293.)

Editorial Notes

References in Text

Section 8401(30) of this title, referred to in subsecs. (a) and (b), was amended generally by Pub. L. 106–65, div. A, title V, §522(c)(2), Oct. 5, 1999, 113 Stat. 597, and, as so amended, no longer contains a subpar. (B).

Codification

Another section 3329 was renumbered section 3330 of this title.

Amendments

2000—Subsec. (a). Pub. L. 106–398, §1 [[div. A], title X, §1087(f)(1)(A)], substituted "the term 'military technician (dual status)' " for "such term".

Subsec. (b). Pub. L. 106–398, §1 [[div. A], title X, §1087(f)(1)(B)], substituted "section 12732 of title 10" for "section 1332 of title 10".

1997—Subsec. (b). Pub. L. 105–85 struck out "a position described in subsection (c) not later than 6 months after the date of the application" after "program of the Department of Defense".

1996—Subsec. (b). Pub. L. 104–106, §1037(a)(1), substituted "be provided placement consideration in a position described in subsection (c) through a priority placement program of the Department of Defense" for "be offered".

Subsec. (c). Pub. L. 104–106, §1037(a)(2), added subsec. (c) and struck out former subsec. (c) which read as follows: "The position to be offered shall be a position—

"(1) in the competitive service;

"(2) within the Department of Defense;

"(3) for which the individual is qualified; and

"(4) the rate of basic pay for which is not less than the rate last received for technician service before separation."

¹ See References in Text note below.

§3330. Government-wide list of vacant positions

(a) For the purpose of this section, the term "agency" means an Executive agency, excluding the Government Accountability 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.

(Added Pub. L. 102–484, div. D, title XLIV, §4431(a), Oct. 23, 1992, 106 Stat. 2719, §3329; renumbered §3330 and amended Pub. L. 104–52, title IV, §4(1), Nov. 19, 1995, 109 Stat. 490; Pub. L. 104–106, div. A, title X, §1037(b)(1), Feb. 10, 1996, 110 Stat. 432; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Amendments

2004—Subsec. (a). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

1996—Pub. L. 104–106, which directed renumbering of the section 3329 of this title that was added by Pub. L. 102–484, §4431, as section 3330 of this title, could not be executed because of the intervening renumbering of that section by Pub. L. 104–52, §4(1)(A). See 1995 Amendment note below.

1995—Pub. L. 104–52, §4(1)(A), renumbered section 3329 of this title, relating to government-wide list of vacant positions, as this section.

Subsec. (f). Pub. L. 104–52, §4(1)(B), added subsec. (f).

§3330a. Preference eligibles; administrative redress

(a)(1)(A) 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.

(B) A veteran described in section 3304(l)(1) who alleges that an agency has violated such section with respect to such veteran 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.

(Added Pub. L. 105–339, §3(a), Oct. 31, 1998, 112 Stat. 3182; amended Pub. L. 108–454, title VIII, §804(a), Dec. 10, 2004, 118 Stat. 3626; Pub. L. 118–188, §2(a)(2)(A)(i)(II), Dec. 23, 2024, 138 Stat. 2645.)

Editorial Notes

Amendments

2024—Subsec. (a)(1)(B). Pub. L. 118–188 substituted "3304(l)(1)" for "3304(f)(1)".

2004—Subsec. (a)(1). Pub. L. 108–454 designated existing provisions as subpar. (A) and added subpar. (B).

§3330b. Preference eligibles; judicial redress

(a) In lieu of continuing the administrative redress procedure provided under section 3330a(d), a preference eligible, or a veteran described by section 3330a(a)(1)(B) with respect to a violation described by such section, 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.

(Added Pub. L. 105–339, §3(a), Oct. 31, 1998, 112 Stat. 3184; amended Pub. L. 108–454, title VIII, §804(b), Dec. 10, 2004, 118 Stat. 3626.)

Editorial Notes

Amendments

2004—Subsec. (a). Pub. L. 108–454, which directed insertion of ", or a veteran described by section 3330a(a)(1)(B) with respect to a violation described by such section," after "a preference eligible" in subsec. (a) of section 3330b, without specifying the Code title to be amended, was executed by making the insertion in subsec. (a) of this section, to reflect the probable intent of Congress.

§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.

(Added Pub. L. 105–339, §3(a), Oct. 31, 1998, 112 Stat. 3184.)

§3330d. Appointment of military and Department of Defense, Department of State, and intelligence community spouses

(a) Definitions.—In this section:

(1) The term "active duty"—

(A) has the meaning given that term in section 101(d)(1) of title 10;

(B) includes full-time National Guard duty (as defined in section 101(d)(5) of title 10); and

(C) for a member of a reserve component (as described in section 10101 of title 10), does not include training duties or attendance at a service school.

(2) The term "agency"—

(A) has the meaning given the term "Executive agency" in section 105 of this title; and

(B) does not include the Government Accountability Office.

(3) The term "covered spouse" means an individual who is married to an individual who—

(A)(i) is an employee of the Department of State or an element of the intelligence community; or

(ii) is a member of the Armed Forces who is assigned to an element of the intelligence community; and

(B) is transferred in the interest of the Government from one official station within the applicable agency to another within the agency (that is outside of normal commuting distance) for permanent duty.

(4) The term "intelligence community" has the meaning given the term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).

(5) The term "remote work" refers to a work flexibility arrangement under which an employee—

(A) is not expected to physically report to the location from which the employee would otherwise work, considering the position of the employee; and

(B) performs the duties and responsibilities of such employee's position, and other authorized activities, from an approved worksite—

(i) other than the location from which the employee would otherwise work;

(ii) that may be inside or outside the local commuting area of the location from which the employee would otherwise work; and

(iii) that is typically the residence of the employee.

(6) The term "spouse of a disabled or deceased member of the Armed Forces" means an individual—

(A) who is married to a member of the Armed Forces who—

(i) is retired, released, or discharged from the Armed Forces; and

(ii) on the date on which the member retires, is released, or is discharged, has a disability rating of 100 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs; or

(B) who—

(i) was married to a member of the Armed Forces on the date on which the member dies while on active duty in the Armed Forces; and

(ii) has not remarried.

(7) The term "spouse of an employee of the Department of Defense" means an individual who is married to an employee of the Department of Defense who is transferred in the interest of the Government from one official station within the Department to another within the Department (that is outside of normal commuting distance) for permanent duty.

(8) The term "telework" has the meaning given the term in section 6501.

(b) Appointment Authority.—The head of an agency may appoint noncompetitively—

(1) a spouse of a member of the Armed Forces on active duty;

(2) a spouse of a disabled or deceased member of the Armed Forces;

(3) a spouse of a member of the Armed Forces on active duty, or a spouse of a disabled or deceased member of the Armed Forces, to a position in which the spouse will engage in remote work;

(4) a spouse of an employee of the Department of Defense, including to a position in which the spouse will engage in remote work; or

(5) a covered spouse to a position in which the covered spouse will engage in remote work.

(c) Special Rules Regarding Spouse of a Disabled or Deceased Member of the Armed Forces.—

(1) In general.—An appointment of an eligible spouse as described in subparagraph (A) or (B) of subsection (a)(4) is not restricted to a geographical area.

(2) Single permanent appointment.—A spouse of a disabled or deceased member of the Armed Forces may not receive more than 1 permanent appointment under this section.

(Added Pub. L. 112–239, div. A, title V, §566(a), Jan. 2, 2013, 126 Stat. 1749; amended Pub. L. 114–328, div. A, title XI, §1131, Dec. 23, 2016, 130 Stat. 2457; Pub. L. 115–232, div. A, title V, §573(a), (c), Aug. 13, 2018, 132 Stat. 1779; Pub. L. 118–31, div. A, title XI, §§1112(a), 1119(a), Dec. 22, 2023, 137 Stat. 429, 434; Pub. L. 118–159, div. A, title XI, §1102(c)(1), div. F, title LXVI, §6612(a), (e)(1), Dec. 23, 2024, 138 Stat. 2086, 2504, 2505.)

Amendment of Section

For revival of section by Pub. L. 118–159, see Effective and Termination Dates of 2024 Amendment note below.

For expiration of amendments and revival of section by Pub. L. 118–31, see Termination Date of 2023 Amendment note below.

Editorial Notes

Amendments

2024—Pub. L. 118–159, §6612(a)(1), (e)(1), temporarily substituted "military and Department of Defense, Department of State, and intelligence community spouses" for "Appointment of military and Department of Defense civilian spouses" in section catchline. See Effective and Termination Dates of 2024 Amendment note below.

Pub. L. 118–159, §1102(c)(1), amended Pub. L. 118–31, §1119(a)(2), (3). See 2023 Amendment notes below.

Subsec. (a)(3). Pub. L. 118–159, §6612(a)(2)(D), (e)(1), temporarily added par. (3) and struck out former par. (3) which defined "remote work". See Effective and Termination Dates of 2024 Amendment note below.

Subsec. (a)(4). Pub. L. 118–159, §6612(a)(2)(D), (e)(1), temporarily added par. (4). See Effective and Termination Dates of 2024 Amendment note below. Former par. (4) temporarily redesignated (6).

Subsec. (a)(5). Pub. L. 118–159, §6612(a)(2)(D), (e)(1), temporarily added par. (5). See Effective and Termination Dates of 2024 Amendment note below. Former par. (5) temporarily redesignated (7) as probable intent.

Subsec. (a)(6). Pub. L. 118–159, §6612(a)(2)(C), (e)(1), temporarily redesignated par. (4) as (6). See Effective and Termination Dates of 2024 Amendment note below. Former par. (6) temporarily struck out as probable intent.

Pub. L. 118–159, §6612(a)(2)(B), (e)(1), which directed the temporary striking out of par. (5), was executed by temporarily striking out par. (6) to reflect the probable intent of Congress and the intervening amendment by Pub. L. 118–159, §1102(c)(1)(A)(i), which retroactively amended Pub. L. 118–31, §1119(a)(2)(A), so as to redesignate par. (5) as (6). See 2023 Amendment note below and Effective and Termination Dates of 2024 Amendment note below.

Subsec. (a)(7). Pub. L. 118–159, §6612(a)(2)(A), (e)(1), which directed the temporary redesignation of the second par. (4) relating to a spouse of an employee of the Department of Defense as (7), was executed by temporarily redesignating par. (5) as (7) to reflect the probable intent of Congress and the intervening amendment by Pub. L. 118–159, §1102(c)(1)(A)(ii), which retroactively amended Pub. L. 118–31, §1119(a)(2)(B), so as to add such paragraph as par. (5) instead of a second par. (4). See 2023 Amendment note below and Effective and Termination Dates of 2024 Amendment note below.

Subsec. (a)(8). Pub. L. 118–159, §6612(a)(2)(E), (e)(1), temporarily added par. (8). See Effective and Termination Dates of 2024 Amendment note below.

Subsec. (b)(2). Pub. L. 118–159, §6612(a)(3)(A), (e)(1), which directed the temporary striking out of "or" at end, could not be executed after the intervening amendment by Pub. L. 118–159, §1102(c)(1)(B)(ii), which retroactively amended Pub. L. 118–31, §1119(a)(3)(A), so as to direct the same amendment. See 2023 Amendment note below.

Subsec. (b)(3). Pub. L. 118–159, §6612(a)(3)(B), (e)(1), which directed the temporary substitution of a semicolon for the period at the end of the first par. (3) relating to a spouse of a member of the Armed Forces on active duty, was executed by temporarily substituting a semicolon for "; or" at the end of the only par. (3), to reflect the probable intent of Congress and the intervening amendments by Pub. L. 118–159, §1102(c)(1)(B)(iii), (iv), which retroactively amended Pub. L. 118–31, §1119(a)(3)(B), (C), so as to substitute "; or" for the period at the end of par. (3) and add par. (4) instead of a second par. (3). See 2023 Amendment note below and Effective and Termination Dates of 2024 Amendment note below.

Subsec. (b)(4). Pub. L. 118–159, §6612(a)(3)(D), (e)(1), temporarily inserted ", including to a position in which the spouse will engage in remote work" after "Department of Defense" and substituted "; or" for period at end. See Effective and Termination Dates of 2024 Amendment note below.

Pub. L. 118–159, §6612(a)(3)(C), (e)(1), which directed the temporary redesignation of the second par. (3) relating to a spouse of an employee of the Department of Defense as (4), could not be executed after the intervening amendment by Pub. L. 118–159, §1102(c)(1)(B)(iv), which retroactively amended Pub. L. 118–31, §1119(a)(3)(C), so as to add such paragraph as par. (4) instead of par. (3). See 2023 Amendment note below.

Subsec. (b)(5). Pub. L. 118–159, §6612(a)(3)(E), (e)(1), temporarily added par. (5). See Effective and Termination Dates of 2024 Amendment note below.

2023—Pub. L. 118–31, §1119(a)(1), (d), temporarily amended section catchline, inserting "and Department of Defense civilian" after "military". See Termination Date of 2023 Amendment note below.

Subsec. (a)(3), (4). Pub. L. 118–31, §1112(a)(1)(A), (B), added par. (3) and redesignated former par. (3) as (4).

Subsec. (a)(5). Pub. L. 118–31, §1119(a)(2)(B), (d), as amended by Pub. L. 118–159, §1102(c)(1)(A)(ii), temporarily added par. (5). See Termination Date of 2023 Amendment note below. Former par. (5) temporarily redesignated (6).

Pub. L. 118–31, §1112(a)(1)(C), added par. (5).

Subsec. (a)(6). Pub. L. 118–31, §1119(a)(2)(A), (d), as amended by Pub. L. 118–159, §1102(c)(1)(A)(i), temporarily redesignated par. (5) as (6). See Termination Date of 2023 Amendment note below.

Subsec. (b)(2). Pub. L. 118–31, §1119(a)(3)(A), (d), as amended by Pub. L. 118–159, §1102(c)(1)(B)(ii), temporarily struck out "or" at end. See Termination Date of 2023 Amendment note below.

Subsec. (b)(3). Pub. L. 118–31, §1119(a)(3)(B), (d), as amended by Pub. L. 118–159, §1102(c)(1)(B)(iii), temporarily substituted "; or" for period at end. See Termination Date of 2023 Amendment note below.

Pub. L. 118–31, §1112(a)(2), added par. (3).

Subsec. (b)(4). Pub. L. 118–31, §1119(a)(3)(C), (d), as amended by Pub. L. 118–159, §1102(c)(1)(B)(iv), temporarily added par. (4). See Termination Date of 2023 Amendment note below.

Subsec. (c)(1). Pub. L. 118–31, §1112(a)(3), substituted "subsection (a)(4)" for "subsection (a)(3)".

2018—Pub. L. 115–232, §573(c), amended section catchline generally, substituting "Appointment of military spouses" for "Appointment of certain military spouses".

Subsec. (a)(3) to (6). Pub. L. 115–232, §573(a)(1), redesignated par. (6) as (3) and struck out former pars. (3) to (5) which defined geographic area of the permanent duty station, permanent change of station, and relocating spouse of a member of the Armed Forces, respectively.

Subsecs. (b) to (d). Pub. L. 115–232, §573(a)(2)–(4), added subsec. (b), redesignated subsec. (d) as (c) and substituted "subsection (a)(3)" for "subsection (a)(6)" in par. (1), and struck out former subsecs. (b) and (c) relating to appointment authority and special rules regarding relocating spouse, respectively.

2016—Subsec. (c)(3). Pub. L. 114–328 added par. (3).

Statutory Notes and Related Subsidiaries

Effective and Termination Dates of 2024 Amendment

Pub. L. 118–159, div. A, title XI, §1102(c)(2), Dec. 23, 2024, 138 Stat. 2087, provided that: "The amendments made by paragraph (1) [amending section 1119(a)(2), (3) of Pub. L. 118–31, which had amended this section] shall take effect as if included in the enactment of section 1119 of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118–31)."

Pub. L. 118–159, div. F, title LXVI, §6612(e), Dec. 23, 2024, 138 Stat. 2505, provided that: "On the date that is 5 years after the date of the enactment of this Act [Dec. 23, 2024]—

"(1) section 3330d of title 5, United States Code, as amended by subsection (a), is amended to read as it read on the day before the date of the enactment of this Act; and

"(2) the item for such section in the table of sections for subchapter I of chapter 33 [probably should be "for chapter 33"] of title 5, United States Code [5 U.S.C. 3301 prec.], as amended by subsection (b), is amended to read as it read on the day before the date of the enactment of this Act."

Termination Date of 2023 Amendment

Pub. L. 118–31, div. A, title XI, §1119(d), Dec. 22, 2023, 137 Stat. 435, as amended by Pub. L. 118–159, div. A, title XI, §1102(b)(1), Dec. 23, 2025, 138 Stat. 2086, provided that: "Effective on December 31, 2033—

"(1) the authority provided by this section [amending this section and enacting provisions set out as a note below], and the amendments made by this section [amending this section], shall expire; and

"(2) the provisions of section 3330d of title 5, United States Code, amended or repealed by this section are restored or revived as if this section had not been enacted."

Termination Date of 2018 Amendment

Pub. L. 115–232, div. A, title V, §573(e), Aug. 13, 2018, 132 Stat. 1779, as amended by Pub. L. 117–263, div. A, title XI, §1111(a), Dec. 23, 2022, 136 Stat. 2820, which provided that, effective on Dec. 31, 2028, the authority provided by and the amendments made by section 573 of Pub. L. 115–232 would expire, and the provisions of this section amended or repealed by section 573 of Pub. L. 115–232 would be restored or revived as if such section had not been enacted, was repealed by Pub. L. 118–159, div. A, title XI, §1102(a), Dec. 23, 2024, 138 Stat. 2086.

Regulations

Pub. L. 112–239, div. A, title V, §566(b), Jan. 2, 2013, 126 Stat. 1751, provided that: "Not later than 180 after the date of the enactment of this Act [Jan. 2, 2013], the Director of the Office of Personnel Management shall amend section 315.612 of title 5, Code of Federal Regulations (relating to noncompetitive appointment of certain military spouses), in accordance with the amendment made by subsection (a) [enacting this section] and promulgate or amend any other regulations necessary to carry out the amendment made by subsection (a)."

Rule of Construction

Pub. L. 118–159, div. F, title LXVI, §6612(d), Dec. 23, 2024, 138 Stat. 2505, provided that: "Nothing in this section [amending this section and enacting provisions set out as a note above] or an amendment made by this section shall be construed to revoke or diminish any right of an individual provided by title 5, United States Code."

OPM Limitation and Reports

Pub. L. 118–31, div. A, title XI, §1119(c), Dec. 22, 2023, 137 Stat. 434, provided that:

"(1) Relocating spouses.—With respect to the noncompetitive appointment of a relocating spouse of an employee of the Department of Defense under paragraph (3) of section 3330d(b) of title 5, United States Code, as added by subsection (a), the Director of the Office of Personnel Management shall—

"(A) monitor the number of those appointments;

"(B) require the head of each agency with the authority to make those appointments under that provision to submit to the Director an annual report on those appointments, including information on the number of individuals so appointed, the types of positions filled, and the effectiveness of the authority for those appointments; and

"(C) not later than 18 months after the date of enactment of this Act [Dec. 22, 2023], submit, to the Committees on Armed Services and Homeland Security and Governmental Affairs of the Senate and the Committees on Armed Services and Oversight and Accountability of the House of Representatives, a report on the use and effectiveness of the authority described in subparagraph (B).

"(2) Non-relocating spouses.—With respect to the noncompetitive appointment of a spouse of an employee of the Department of Defense other than a relocating spouse described in paragraph (1), the Director of the Office of Personnel Management—

"(A) shall treat the spouse as a relocating spouse under paragraph (1); and

"(B) may limit the number of those appointments."

[For termination of section 1119(c) of Pub. L. 118–31, set out above, see Termination Date of 2023 Amendment note set out above.]

Pub. L. 115–232, div. A, title V, §573(d), Aug. 13, 2018, 132 Stat. 1779, which related to limitations on the noncompetitive appointment of relocating spouses and required reports, was repealed by Pub. L. 117–263, div. A, title XI, §1111(b), Dec. 23, 2022, 136 Stat. 2820.

Executive Documents

Ex. Ord. No. 13832. Enhancing Noncompetitive Civil Service Appointments of Military Spouses

Ex. Ord. No. 13832, May 9, 2018, 83 F.R. 22343, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1784 of title 10, United States Code, and sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Definitions. (a) "Military spouse" means:

(i) the husband or wife of a member of the Armed Forces who, as determined by the Secretary of Defense, is performing active duty pursuant to orders that authorize a permanent change of station move, if such husband or wife relocates to the member's new permanent duty station;

(ii) the husband or wife of a totally disabled retired or separated member of the Armed Forces; or

(iii) the unremarried widow or widower of a member of the Armed Forces killed while performing active duty.

(b) "Member of the Armed Forces" has the meaning set forth in 5 CFR 315.612(b)(4).

(c) "Agency" has the meaning set forth in section 3330d of title 5, United States Code.

(d) "Military spouse hiring authority" shall refer to the appointment authority set forth in 5 U.S.C. 3330d and 5 CFR 315.612.

Sec. 2. Policy. (a) Military spouses make critical contributions to the personal and financial success of our military families. Military service of spouses, however, often impairs the spouse's ability to obtain and maintain employment, and to achieve career goals. Multiple and frequent relocations make it challenging for military spouses to maintain the home front, to comply with licensure and other job requirements, and to obtain adequate childcare.

(b) It shall be the policy of the United States to enhance employment support for military spouses. This policy will assist agencies in tapping into a pool of talented individuals and will promote the national interest of the United States and the well-being of our military families. It will also help retain members of the Armed Forces, enhance military readiness, recognize the tremendous sacrifices and service of the members of our Armed Forces and their families, and decrease the burden of regulations that can inhibit the entry of military spouses into the workforce.

Sec. 3. Promoting Hiring for Military Spouses. (a) To the greatest extent possible consistent with hiring needs, agencies shall, when filling vacant positions in the competitive service, indicate in job opportunity announcements (JOAs) that they will consider candidates under the military spouse hiring authority in addition to candidates identified on the competitive or merit promotion certificate for the position as well as those candidates identified through any other hiring authority a JOA indicates an agency will consider.

(b) Agencies shall actively advertise and promote the military spouse hiring authority and actively solicit applications from military spouses for posted and other agency positions (including through USAJOBS).

(c) The Office of Personnel Management (OPM) shall consider whether changes to 5 CFR 315.612 are appropriate to account for cases in which there are no agency job openings within the geographic area of the permanent duty station of the member of the Armed Forces for which the member's spouse is qualified.

(d) OPM shall also periodically circulate notifications concerning the military spouse hiring authority and its eligibility requirements to each agency's Chief Human Capital Officer or the agency's equivalent officer, for such officer to transmit to appropriate offices and to notify eligible populations. Within 180 days of the date of this order [May 9, 2018], OPM shall post to its website, and circulate to each agency's Chief Human Capital Officer or the agency's equivalent officer, information about the military spouse hiring authority. That posting shall include a discussion of section 1131 of the National Defense Authorization Act for Fiscal Year 2017, Public Law 114–328, which amended 5 U.S.C. 3330d(c) to eliminate the time limitation on noncompetitive appointment for a relocating spouse of a member of the Armed Forces.

(e) Within 180 days of the date of this order, OPM shall educate agencies concerning the military spouse hiring authority and ensure human resources personnel and hiring managers are briefed on techniques for its effective use. Concurrently, within 180 days of the date of this order, OPM shall provide any additional clarifying guidance it deems appropriate to agencies on provisions of the Telework Enhancement Act of 2010, Public Law 111–292 [enacting chapter 65 and section 5711 of this title and provisions set out as a note under section 6501 of this title and amending provisions set out as a note and provisions listed in a table under section 6120 of this title], and agencies shall ensure that human resources personnel and hiring managers are briefed as needed on techniques for the effective use of telework.

(f) Beginning in Fiscal Year 2019, agencies shall report annually (by December 31 of each year) to OPM and the Department of Labor the number of positions made available under the military spouse hiring authority, the number of applications submitted under the military spouse hiring authority, and the number of military spouses appointed under the military spouse hiring authority during the preceding fiscal year. Such report shall also describe actions taken during that period to advertise the military spouse hiring authority, as well as any other actions taken to promote the hiring of military spouses.

Sec. 4. Administrative Provisions. (a) The Director of OPM shall administer this order and shall, in coordination with the Secretary of Labor, through the Assistant to the President for Domestic Policy, provide an annual report to the President regarding the implementation of this order and any recommendations for improving the hiring of military spouses, including steps to enhance the effectiveness of the military spouse hiring authority.

(b) The annual report described in subsection (a) of this section shall also include recommendations, developed in consultation with the Secretary of Defense and the Secretary of Homeland Security, for actions that could be taken to improve license portability and remove barriers to the employment of military spouses.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Ex. Ord. No. 14100. Advancing Economic Security for Military and Veteran Spouses, Military Caregivers, and Survivors

Ex. Ord. No. 14100, June 9, 2023, 88 F.R. 39111, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. Military-connected families are American working families. Military and veteran families, military caregivers, and survivors face many of the same challenges as their neighbors, but they can carry the additional strains of multiple deployments; frequent moves with little control over their geographic location; caring for wounded, ill, and injured service members or veterans; time apart for training and other demands of military life; and more. The unique demands of military life continue to affect veteran families, military caregivers, and survivors for years after a service member's time in uniform.

Military families, like their civilian counterparts, increasingly look to rely upon dual incomes; however, the 21 percent unemployment rate experienced by active-duty military spouses in the workforce makes that a difficult goal to achieve and maintain. Nearly one in five military families cite challenges with spousal employment as a reason when considering leaving active-duty service. The challenges associated with the military lifestyle, including permanent change-of-station moves every 2 to 3 years on average for active-duty families, mean that military spouses often struggle to find options for work that are portable or allow them to build a sustainable long-term career. Employment challenges are not limited to active-duty spouses, as Reserve and National Guard spouses must balance their careers against the unpredictable nature of the service member's schedule, activations, and deployments. Employment challenges can continue to affect the employability and career trajectory of veteran spouses well after a service member leaves the service.

Recognizing the importance of military family economic well-being to the all-volunteer force, the Federal Government employs more than 16,000 military, veteran, and surviving spouses. As the Nation's largest employer, we must be a model for diversity, equity, inclusion, and accessibility, and, in doing so, we recognize that military spouses are an underserved community. Whether they choose public service, employment in the private sector, or entrepreneurship through building a small business, it is the policy of my Administration to advance economic opportunity for military spouses. My Administration also recognizes the imperative of promoting economic security for military spouses—the vast majority of whom are women—under the National Strategy on Gender Equity and Equality.

In addition, my Administration understands that access to high-quality, affordable child care is a necessity for working families, and a military readiness issue. While the Department of Defense offers the largest employer-sponsored child care network in the country, military families still face challenges related to capacity and non-traditional work schedules. Many military families seeking care outside of the gates of our military bases struggle to find care they can afford. Because access to child care should not be an impediment to service, I have directed the Secretary of Defense to ensure the Fourteenth Quadrennial Review of Military Compensation, undertaken in January 2023, includes an assessment of child care access and cost in its review of military benefits and pay, along with consideration of factors such as the challenge of military spouse unemployment, frequent military moves, and periods of geographic separation between service members and their spouses, including dual military couples.

Military spouses can also be service members themselves, wearing the Nation's uniform in our Active Components, National Guard, or Reserve forces, with a higher percentage of women service members in a dual military marriage than their male counterparts. As we recognize the 75th anniversary of women's integration into the Armed Forces, my Administration is committed to removing barriers to women's ability to serve, including difficulty in accessing child care, which poses a challenge for both spouses, but disproportionately affects retention for women, especially women in dual military couples, and can play a factor in women's early separation from the Armed Forces.

As we commemorate the 50th anniversary of the all-volunteer force, we must appreciate now more than ever that the commitment and resilience of military-connected families are essential to the recruitment, retention, and readiness of our Armed Forces and the enduring strength of our Nation. Meeting the economic, social, and emotional needs of our military and veteran families, military caregivers, and survivors is a national security imperative. In times of peace and of war, military and veteran families, military caregivers, and survivors have sacrificed much for our country, answering the call to duty time and again. We owe them nothing less than the dignity of a meaningful career and the opportunity to build economic security for their families.

Sec. 2. Government-wide Military and Veteran Spouse, Military Caregiver, and Survivor Hiring and Retention Strategic Plan and Training. Given the considerable Federal footprint around many military installations, military spouses are often interested in pursuing careers in the Federal civil service. To ensure that the Federal Government is an employer of choice for military and veteran spouses, military caregivers, and survivors, executive departments and agencies (agencies) must strengthen their ability to recruit, hire, develop, promote, and retain this skilled and diverse pool of talent. To that end:

(a) The Director of the Office of Personnel Management (OPM) and the Deputy Director for Management of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Defense, the Secretary of Labor, the Secretary of Veterans Affairs, and the Secretary of Homeland Security, shall develop and issue a Government-wide Military and Veteran Spouse, Military Caregiver, and Survivor Hiring and Retention Strategic Plan (Military-Connected Plan) within 180 days of the date of this order [June 9, 2023] that builds upon the Government-wide plans required by Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-Wide Initiative to Promote Diversity and Inclusion in the Federal Workforce) [42 U.S.C. 2000e note], and Executive Order 14035 of June 25, 2021 (Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce) [42 U.S.C. 2000e note]. The Military-Connected Plan shall be updated as appropriate and at a minimum every 4 years. The Military-Connected Plan shall:

(i) define measures of success for the recruitment, hiring, and retention of military and veteran spouses, military caregivers, and survivors based on leading policies and practices in the public, private, and nonprofit sectors;

(ii) include plans for OPM to consult with the Department of Defense and the Department of Homeland Security in developing enhanced support for the retention of military spouses in Federal careers, consistent with merit system principles as defined in 5 U.S.C. 2301;

(iii) consistent with merit system principles, identify strategies—including pursuing development of a legislative proposal, as appropriate—to eliminate, where applicable, barriers to the employment of military and veteran spouses, military caregivers, and survivors in the Federal workforce, including with respect to recruitment; hiring, including an assessment of whether to pursue expanded eligibility for derivative preference; promotion; retention; performance evaluations and awards; professional development programs; mentoring programs or sponsorship initiatives; internship, fellowship, and registered apprenticeship programs; employee resource group and affinity group programs; and training, learning, and onboarding programs;

(iv) identify strategies for marketing the talent, experience, and diversity of military and veteran spouses, military caregivers, and survivors to agencies; and

(v) develop a data-driven approach to increasing transparency and accountability in hiring and retention—including by encouraging agencies to set goals for hiring under the Military Spouse Noncompetitive Appointment Authority established by 5 U.S.C. 3330d and hiring individuals eligible for derivative preference, to use data internally to improve performance, and to use data to publicly report on progress—which would build upon, as appropriate, the reporting requirements of Executive Order 13832 of May 9, 2018 (Enhancing Noncompetitive Civil Service Appointments of Military Spouses) [set out above].

(b) Beginning with Fiscal Year 2025, the Director of OPM shall revise the title of the "Employment of Veterans in the Federal Executive Branch" annual report to "Employment of Veterans and Military-Connected Spouses and Survivors in the Federal Executive Branch," and shall include in the report the existing data previously reported in the "Employment of Veterans in the Federal Executive Branch" report, including statistics on the hiring of military and veteran spouses and survivors in a manner that allows for comparison and analysis of the distinct populations and hiring mechanisms.

(c) The Secretary of Veterans Affairs and the Director of OPM shall collaborate on opportunities to better share Federal employee survey data to enable analysis and reporting relevant to the employment of military and veteran spouses and survivors.

(d) In collaboration with the Director of OPM and consistent with 5 U.S.C. 4103, agencies shall provide annual training for agency human resources personnel and hiring managers concerning the employment of military and veteran spouses, military caregivers, and survivors, including training on special authorities for the hiring of military spouses and survivors, and the provision of tools to build the agencies' capacity to make use of applicable hiring authorities, including distribution of the Joining Forces military spouse hiring toolkit, which OPM shall publish on the FedsHireVets website.

(e) The Office of Science and Technology Policy (OSTP) National Science and Technology Council Subcommittee on Equitable Data, as designated by Executive Order 14091 of February 16, 2023 (Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government) [5 U.S.C. 601 note], shall develop recommendations on ways in which agencies can expand Federal datasets to track outcomes for military and veteran spouses, military caregivers, and survivors. Such recommendations shall be included in the Director of OSTP's reports to the White House Steering Committee on Equity under section 9 of Executive Order 14091.

(f) The Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security shall work together through existing interagency collaborations, including the Transition Assistance Program, to increase training and employment opportunities for military spouses in the workforce through the transition to veteran spouse status.

Sec. 3. Updates to Federal Training and Hiring Authorities. To strengthen the ability of the Federal Government to train, develop, and hire military and veteran spouses and survivors:

(a) Beginning with Fiscal Year 2025, agencies shall list the Military Spouse Noncompetitive Appointment Authority established by 5 U.S.C. 3330d when soliciting applications from outside of their workforce for positions announced on USAJOBS or other job posting sites. This requirement applies when using merit promotion procedures to fill competitive service positions.

(b) The Secretary of Labor shall examine the eligibility of military and veteran spouses for programs that provide education, job training, employment services, employer engagement, and other relevant programs, and, as appropriate, shall work to reduce barriers that military and veteran spouses may face in accessing those programs.

(c) The Director of OPM shall examine the eligibility criteria for the Recent Graduates Program established by section 2 of Executive Order 13562 of December 27, 2010 (Recruiting and Hiring Students and Recent Graduates) [5 U.S.C. 3301 note], and, as appropriate, including by recommending Presidential action as necessary, shall work to reduce barriers that military spouses may face in accessing the Program.

Sec. 4. Retention of Military and Veteran Spouses and Military Caregivers, Including Those Employed by the Federal Government. In order to support military and veteran spouses and military caregivers, including those who are employed by the Federal Government:

(a) The Director of OPM shall issue guidance to agencies:

(i) reinforcing existing telework and remote work flexibility options pursuant to 5 U.S.C. 6502 for Federal employees, including military spouses and military caregivers, and encouraging agency leaders to consider these as options for retaining Federal employee military spouses and military caregivers;

(ii) encouraging agencies to support the policies set forth in section 1 of this order by granting up to 5 days of administrative leave to military spouses during a geographic relocation occurring as directed by a service member's orders; and

(iii) encouraging agencies to collaborate so that a military spouse or military caregiver Federal employee may be placed in another Federal agency position when arrangements to retain a military spouse or military caregiver—including following changes to support continuity of care or relocation due to permanent change-of-station orders for the active-duty service member—are unavailable to allow them to continue in their existing position.

(b) The Secretary of State and the Secretary of Defense, when reevaluating or entering agreements with host nations, shall consider work options for military spouses who are performing remote work for non-Department of Defense entities, so as to reduce barriers for military spouses seeking to continue their private sector- or self-employment.

(c) The Secretary of Defense shall coordinate with the heads of the Military Departments, and the Secretary of Homeland Security shall coordinate with the Commandant of the United States Coast Guard, to amend their respective legal assistance instructions to allow for consultation, advice, and assistance to military families on Status of Forces Agreements and other agreements with host nations affecting family employment, so as to provide support for military spouses navigating complex employment requirements related to working remotely while their active-duty service member spouse is stationed overseas. Those amendments shall specify that legal assistance is limited to the personal civil legal affairs of military dependents affected by employment restrictions related to a Status of Forces Agreement or other host nation agreement, and does not extend to their employers or the establishment, management, or taxation of small business organizations.

Sec. 5. Domestic Employees Teleworking Overseas Policy. In order to ensure that military spouses are able to equitably and reasonably access opportunities for remote work in their Federal jobs when their service-member spouse receives orders overseas, promote togetherness for military families, and enable agencies that employ military spouses—resilient and talented civil servants—to retain them, the following improvements shall be made to the Domestic Employees Teleworking Overseas (DETO) program implemented by agencies pursuant to the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81) [see Tables for classification]:

(a) The Secretary of State and the Secretary of Defense shall enter into a Memorandum of Understanding (MOU) to address residential security and safety requirements for military spouses employed by the Federal Government and working overseas through the DETO program. The MOU shall be communicated to sponsoring agencies, and the Secretaries of State and Defense shall develop appropriate guidance to communicate the provisions of the MOU to military spouses who are civilian employees of the Federal Government.

(b) To promote consistency and effective coordination in the implementation of the DETO program across the executive branch, agencies shall:

(i) develop common standards for DETO policies, including identification of points of contact and creation of guidelines to ensure that such policies are communicated and advertised in a manner accessible to military spouse employees;

(ii) establish a DETO application system and develop a method to track DETO applications received and processed, as well as application processing timelines; and

(iii) establish time frames for DETO application processing and approvals, considering the time-sensitive nature of decisions for applications by military spouses due to permanent change-of-station moves and other factors unique to military families.

Sec. 6. Expanding Support for Military and Veteran Spouse Entrepreneurs. Many military spouses start their own businesses because of a need for flexibility or inability to find or maintain other employment. When military spouses must discontinue their businesses, however, they often cite military moves, rather than lack of profitability, as the reason. To support military spouse entrepreneurs in starting and sustaining their businesses, the Administrator of the Small Business Administration shall:

(a) expand access to resources tailored to military and veteran spouses who are interested in starting or growing a small business, including guidance to help military spouses with relocating a business following a military move; and

(b) evaluate access to capital gaps for military spouse entrepreneurs.

Sec. 7. Child Care for Military Families. The Department of Defense operates the largest employer-sponsored child care program in the United States in order to provide military families with support that is essential to overall mission readiness, retention, and recruitment. To build on the existing support and ensure that military families have access to affordable, high-quality child care allowing both the service member and the spouse to pursue professional opportunities, the Secretary of Defense shall:

(a) in coordination with the Director of OPM, establish flexible spending accounts for the care of military dependents, available to military personnel no later than January 1, 2024; and

(b) expand pathways for military spouses to provide certified, home-based child care on military installations, including by providing them with support in seeking licensure and achieving government-mandated quality benchmarks.

Sec. 8. Definitions. For the purposes of this order:

(a) The term "active duty" has the meaning set forth in 10 U.S.C. 101(d)(1), except that the term also includes "active Guard and Reserve duty," as defined in 10 U.S.C. 101(d)(6)(a).

(b) The term "agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(c) The term "derivative preference" means those who are "preference eligible," as defined in 5 U.S.C. 2108(3), because they are eligible spouses and parents who use a veteran's preference when the veteran is unable to do so.

(d) The term "military caregiver" means the spouse, child, parent, or next of kin of a veteran who is the primary caregiver for a veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness who was a member of the Armed Forces (including a member of the National Guard or Reserves) and who was discharged or released under conditions other than dishonorable.

(e) The term "military spouse" means an individual married to a member of the Armed Forces who is performing active duty.

(f) The term "survivor" means the spouse, child, parent, or next of kin of a service member who died while on active duty, or from a service-connected disability following discharge or release under conditions other than dishonorable.

(g) The term "veteran spouse" means an individual married to a retired or separated member of the Armed Forces who was discharged or released under conditions other than dishonorable, so long as the marriage occurred prior to or during the service member's active service.

Sec. 9. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

§3330e. Review of official personnel file of former Federal employees before rehiring

(a) If a former Government employee is a candidate for a position within the competitive service or the excepted service, prior to making any determination with respect to the appointment or reinstatement of such employee to such position, the appointing authority shall review and consider merit-based information relating to such employee's former period or periods of service such as official personnel actions, employee performance ratings, and disciplinary actions, if any, in such employee's official personnel record file.

(b) In subsection (a), the term "former Government employee" means an individual whose most recent position with the Government prior to becoming a candidate as described under subsection (a) was within the competitive service or the excepted service.

(c) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this section. Such regulations may not contain provisions that would increase the time required for agency hiring actions.

(Added Pub. L. 114–328, div. A, title XI, §1136(a), Dec. 23, 2016, 130 Stat. 2460.)

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 114–328, div. A, title XI, §1136(b), Dec. 23, 2016, 130 Stat. 2460, provided that: "The amendment made by subsection (a) [enacting this section] shall apply to any former Government employee (as described in section 3330e of title 5, United States Code, as added by such subsection) appointed or reinstated on or after the date that is 180 days after the date of enactment of this Act [Dec. 23, 2016]."

§3330f. Government policy and supporting position data

(a) Definitions.—In this section:

(1) Agency.—The term "agency" means—

(A) any Executive agency, the United States Postal Service, and the Postal Regulatory Commission;

(B) the Architect of the Capitol, the Government Accountability Office, the Government Publishing Office, and the Library of Congress; and

(C) the Executive Office of the President and any component within that Office (including any successor component), including—

(i) the Council of Economic Advisors;

(ii) the Council on Environmental Quality;

(iii) the National Security Council;

(iv) the Office of the Vice President;

(v) the Office of Policy Development;

(vi) the Office of Administration;

(vii) the Office of Management and Budget;

(viii) the Office of the United States Trade Representative;

(ix) the Office of Science and Technology Policy;

(x) the Office of National Drug Control Policy; and

(xi) the White House Office, including the White House Office of Presidential Personnel.

(2) Appointee.—The term "appointee"—

(A) means an individual serving in a policy and supporting position; and

(B) includes an individual serving in such a position temporarily in an acting capacity in accordance with—

(i) sections 3345 through 3349d (commonly referred to as the "Federal Vacancies Reform Act of 1998");

(ii) any other statutory provision described in section 3347(a)(1); or

(iii) a Presidential appointment described in section 3347(a)(2).

(3) Covered website.—The term "covered website" means the website established and maintained by the Director under subsection (b).

(4) Director.—The term "Director" means the Director of the Office of Personnel Management.

(5) Policy and supporting position.—The term "policy and supporting position"—

(A) means any position at an agency, as determined by the Director, that, but for this section and section 2(b)(3) of the PLUM Act of 2022, would be included in the publication entitled "United States Government Policy and Supporting Positions", (commonly referred to as the "Plum Book"); and

(B) may include—

(i) a position on any level of the Executive Schedule under subchapter II of chapter 53, or another position with an equivalent rate of pay;

(ii) a general position (as defined in section 3132(a)(9)) in the Senior Executive service;

(iii) a position in the Senior Foreign Service;

(iv) a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or any successor regulation; and

(v) any other position classified at or above level GS–14 of the General Schedule (or equivalent) that is excepted from the competitive service by law because of the confidential or policy-determining nature of the position duties.

(b) Establishment of Website.—Not later than 1 year after the date of enactment of the PLUM Act of 2022, the Director shall establish, and thereafter the Director shall maintain, a public website containing the following information for the President in office on the date of establishment and for each subsequent President:

(1) Each policy and supporting position in the Federal Government, including any such position that is vacant.

(2) The name of each individual who—

(A) is serving in a position described in paragraph (1); or

(B) previously served in a position described in such paragraph under the applicable President.

(3) Information on—

(A) any Government-wide or agency-wide limitation on the total number of positions in the Senior Executive Service under section 3133 or 3134 or the total number of positions under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations; and

(B) the total number of individuals occupying such positions.

(c) Contents.—With respect to any policy and supporting position listed on the covered website, the Director shall include—

(1) the agency, and agency component, (including the agency and bureau code used by the Office of Management and Budget) in which the position is located;

(2) the name of the position;

(3) the name of the individual occupying the position (if any);

(4) the geographic location of the position, including the city, State or province, and country;

(5) the pay system under which the position is paid;

(6) the level, grade, or rate of pay;

(7) the term or duration of the appointment (if any);

(8) the expiration date, in the case of a time-limited appointment;

(9) a unique identifier for each appointee;

(10) whether the position is vacant; and

(11) for any position that is vacant—

(A) for a position for which appointment is required to be made by the President, by and with the advice and consent of the Senate, the name of the acting official; and

(B) for other positions, the name of the official performing the duties of the vacant position.

(d) Current Data.—For each agency, the Director shall indicate in the information on the covered website the date that the agency last updated the data.

(e) Format.—The Director shall make the data on the covered website available to the public at no cost over the internet in a searchable, sortable, downloadable, and machine-readable format so that the data qualifies as an open Government data asset, as defined in section 3502 of title 44.

(f) Authority of Director.—

(1) Information required.—Each agency shall provide to the Director any information that the Director determines necessary to establish and maintain the covered website, including the information uploaded under paragraph (4).

(2) Requirements for agencies.—Not later than 1 year after the date of enactment of the PLUM Act of 2022, the Director shall issue instructions to agencies with specific requirements for the provision or uploading of information required under paragraph (1), including—

(A) specific data standards that an agency shall follow to ensure that the information is complete, accurate, and reliable;

(B) data quality assurance methods; and

(C) the timeframe during which an agency shall provide or upload the information, including the timeframe described under paragraph (4).

(3) Public accountability.—The Director shall identify on the covered website any agency that has failed to provide—

(A) the information required by the Director;

(B) complete, accurate, and reliable information; or

(C) the information during the timeframe specified by the Director.

(4) Annual updates.—

(A) In general.—Not later than 90 days after the date on which the covered website is established, and not less than once during each year thereafter, the head of each agency shall upload to the covered website updated information (if any) on—

(i) the policy and supporting positions in the agency;

(ii) the appointees occupying such positions in the agency; and

(iii) the former appointees who served in such positions in the agency under the President then in office.

(B) Supplement not supplant.—Information provided under subparagraph (A) shall supplement, not supplant, previously provided information under that subparagraph.

(5) Opm help desk.—The Director shall establish a central help desk, to be operated by not more than 1 full-time employee, to assist any agency with implementing this section.

(6) Coordination.—The Director may designate 1 or more agencies to participate in the development, establishment, operation, and support of the covered website. With respect to any such designation, the Director may specify the scope of the responsibilities of the agency so designated.

(7) Data standards and timing.—The Director shall make available on the covered website information regarding data collection standards, quality assurance methods, and time frames for reporting data to the Director.

(8) Regulations.—The Director may prescribe regulations necessary for the administration of this section.

(g) Responsibility of Agencies.—

(1) Provision of information.—Each agency shall comply with the instructions and guidance issued by the Director to carry out this section, and, upon request of the Director, shall provide appropriate assistance to the Director to ensure the successful operation of the covered website in the manner and within the timeframe specified by the Director under subsection (f)(2).

(2) Ensuring completeness, accuracy, and reliability.—With respect to any submission of information described in paragraph (1), the head of an agency shall include—

(A) an explanation of how the agency ensured the information is complete, accurate, and reliable; and

(B) a certification that the information is complete, accurate, and reliable.

(h) Information Verification.—

(1) Confirmation.—

(A) In general.—On the date that is 90 days after the date on which the covered website is established, the Director, in coordination with the White House Office of Presidential Personnel, shall confirm that the information on the covered website is complete, accurate, reliable, and up-to-date.

(B) Certification.—On the date on which the Director makes a confirmation under subparagraph (A), the Director shall publish on the covered website a certification that the confirmation has been made.

(2) Authority of director.—In carrying out paragraph (1), the Director may—

(A) request additional information from an agency; and

(B) use any additional information provided to the Director or the White House Office of Presidential Personnel for the purposes of verification.

(3) Public comment.—The Director shall establish a process under which members of the public may provide feedback regarding the accuracy of the information on the covered website.

(i) Data Archiving.—

(1) In general.—As soon as practicable after a transitional inauguration day (as defined in section 3349a), the Director, in consultation with the Archivist of the United States, shall archive the data that was compiled on the covered website for the preceding presidential administration.

(2) Public availability.—The Director shall make the data described in paragraph (1) publicly available over the internet—

(A) on, or through a link on, the covered website;

(B) at no cost; and

(C) in a searchable, sortable, downloadable, and machine-readable format.

(Added Pub. L. 117–263, div. E, title LIII, §5322(a)(1), Dec. 23, 2022, 136 Stat. 3255.)

Editorial Notes

References in Text

Section 2(b)(3) of the PLUM Act of 2022, referred to in subsec. (a)(5)(A), probably means section 5322(b)(3) of Pub. L. 117–263, which is set out in a note under this section. The PLUM Act of 2022 is subtitle B of title LIII of div. E of Pub. L. 117–263, the second section of which is section 5322.

The General Schedule, referred to in subsec. (a)(5)(B)(v), is set out under section 5332 of this title.

The date of enactment of the PLUM Act of 2022, referred to in subsecs. (b) and (f)(2), is the date of enactment of subtitle B of title LIII of div. E of Pub. L. 117–263, which was approved Dec. 23, 2022.

Statutory Notes and Related Subsidiaries

Other Matters Relating to Public Website

Pub. L. 117–263, div. E, title LIII, §5322(b), Dec. 23, 2022, 136 Stat. 3259, provided that:

"(1) Definitions.—In this subsection, the terms 'agency', 'covered website', 'Director', and 'policy and supporting position' have the meanings given those terms in section 3330f of title 5, United States Code, as added by subsection (a).

"(2) Gao review and report.—Not later than 1 year after the date on which the Director establishes the covered website, the Comptroller General of the United States shall conduct a review of, and issue a briefing or report on, the implementation of this subtitle [subtitle B (§§5321, 5322) of title LIII of div. E of Pub. L. 117–263, enacting this section and provisions set out as a note under section 101 of this title] and the amendments made by this subtitle, which shall include—

"(A) the quality of data required to be collected and whether the data is complete, accurate, timely, and reliable;

"(B) any challenges experienced by agencies in implementing this subtitle and the amendments made by this subtitle; and

"(C) any suggestions or modifications to enhance compliance with this subtitle and the amendments made by this subtitle, including best practices for agencies to follow.

"(3) Sunset of plum book.—Beginning on January 1, 2026—

"(A) the covered website shall serve as the public directory for policy and supporting positions in the Government; and

"(B) the publication entitled 'United States Government Policy and Supporting Positions', commonly referred to as the 'Plum Book', shall no longer be issued or published.

"(4) Funding.—

"(A) In general.—No additional amounts are authorized to be appropriated to carry out this subtitle or the amendments made by this subtitle.

"(B) Other funding.—The Director shall carry out this subtitle and the amendments made by this subtitle using amounts otherwise available to the Director."

SUBCHAPTER II—OATH OF OFFICE

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 16.	R.S. §1757. May 13, 1884, ch. 46, §§2, 3, 23 Stat. 22.

All but the quoted language in R.S. §1757 is omitted as obsolete since R.S. §1757 was originally an alternative oath to the oath prescribed in R.S. §1756 which oath was repealed by the Act of May 13, 1884, ch. 46, §2, 23 Stat. 22. The words "An individual, except the President, . . . in the civil service or uniformed services" are substituted for "any person . . . either in the civil, military, or naval service, except the President of the United States". The second sentence of former section 16 is changed to read, "This section does not affect other oaths required by law.".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 21a.	Dec. 11, 1926, ch. 4, §1, 44 Stat. 918. Mar. 2, 1927, ch. 284, 44 Stat. 1346. Sept. 23, 1950, ch. 1010, §10, 64 Stat. 987.

The section is restated for clarity and conciseness. The term "officer" is coextensive with and substituted for "Each individual appointed hereafter as a civil officer of the United States by the President, by and with the advice and consent of the Senate, or by the President alone, or by a court of law, or by the head of a department" in view of the definition of "officer" in section 2104.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 118q.	Aug. 9, 1955, ch. 690, §2, 69 Stat. 624.
	[Uncodified].	June 29, 1956, ch. 479, §3 (as applicable to the Act of Aug. 9, 1955, ch. 690, §2, 69 Stat. 624), 70 Stat. 453.

The section is restated for clarity and to conform to the style of section 3332.

In subsection (a), the words "after August 9, 1955" are omitted as executed. The words "if the affidavit is executed prior to acceptance of such office or employment" are omitted as unnecessary. The words "From and after July 1, 1956", appearing in the Act of June 29, 1956, are omitted as executed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER III—DETAILS, VACANCIES, AND APPOINTMENTS

Editorial Notes

Amendments

1998—Pub. L. 105–277, div. C, title I, §151(c)(2), Oct. 21, 1998, 112 Stat. 2681–616, substituted "DETAILS, VACANCIES, AND APPOINTMENTS" for "DETAILS" as subchapter heading.

Statutory Notes and Related Subsidiaries

Federal Rotational Cyber Workforce Program

Pub. L. 117–149, June 21, 2022, 136 Stat. 1289, provided that:

"SECTION 1. SHORT TITLE.

"This Act may be cited as the 'Federal Rotational Cyber Workforce Program Act of 2021'.

"SEC. 2. DEFINITIONS.

"In this Act:

"(1) Agency.—The term 'agency' has the meaning given the term 'Executive agency' in section 105 of title 5, United States Code, except that the term does not include the Government Accountability Office.

"(2) Competitive service.—The term 'competitive service' has the meaning given that term in section 2102 of title 5, United States Code.

"(3) Councils.—The term 'Councils' means—

"(A) the Chief Human Capital Officers Council established under section 1303 of the Chief Human Capital Officers Act of 2002 [Pub. L. 107–296, title XIII] (5 U.S.C. 1401 note); and

"(B) the Chief Information Officers Council established under section 3603 of title 44, United States Code.

"(4) Cyber workforce position.—The term 'cyber workforce position' means a position identified as having information technology, cybersecurity, or other cyber-related functions under section 303 of the Federal Cybersecurity Workforce Assessment Act of 2015 [Pub. L. 114–113, div. N, title III] (5 U.S.C. 301 note).

"(5) Director.—The term 'Director' means the Director of the Office of Personnel Management.

"(6) Employee.—The term 'employee' has the meaning given the term in section 2105 of title 5, United States Code.

"(7) Employing agency.—The term 'employing agency' means the agency from which an employee is detailed to a rotational cyber workforce position.

"(8) Excepted service.—The term 'excepted service' has the meaning given that term in section 2103 of title 5, United States Code.

"(9) Rotational cyber workforce position.—The term 'rotational cyber workforce position' means a cyber workforce position with respect to which a determination has been made under section 3(a)(1).

"(10) Rotational cyber workforce program.—The term 'rotational cyber workforce program' means the program for the detail of employees among rotational cyber workforce positions at agencies.

"(11) Secretary.—The term 'Secretary' means the Secretary of Homeland Security.

"SEC. 3. ROTATIONAL CYBER WORKFORCE POSITIONS.

"(a) Determination With Respect to Rotational Service.—

"(1) In general.—The head of each agency may determine that a cyber workforce position in that agency is eligible for the rotational cyber workforce program, which shall not be construed to modify the requirement under section 4(b)(3) that participation in the rotational cyber workforce program by an employee shall be voluntary.

"(2) Notice provided.—The head of an agency shall submit to the Director—

"(A) notice regarding any determination made by the head of the agency under paragraph (1); and

"(B) for each position with respect to which the head of the agency makes a determination under paragraph (1), the information required under subsection (b)(1).

"(b) Preparation of List.—The Director, with assistance from the Councils and the Secretary, shall develop a list of rotational cyber workforce positions that—

"(1) with respect to each such position, to the extent that the information does not disclose sensitive national security information, includes—

"(A) the title of the position;

"(B) the occupational series with respect to the position;

"(C) the grade level or work level with respect to the position;

"(D) the agency in which the position is located;

"(E) the duty location with respect to the position; and

"(F) the major duties and functions of the position; and

"(2) shall be used to support the rotational cyber workforce program.

"(c) Distribution of List.—Not less frequently than annually, the Director shall distribute an updated list developed under subsection (b) to the head of each agency and other appropriate entities.

"SEC. 4. ROTATIONAL CYBER WORKFORCE PROGRAM.

"(a) Operation Plan.—

"(1) In general.—Not later than 270 days after the date of enactment of this Act [June 21, 2022], and in consultation with the Councils, the Secretary, representatives of other agencies, and any other entity as the Director determines appropriate, the Director shall develop and issue a Federal Rotational Cyber Workforce Program operation plan providing policies, processes, and procedures for a program for the detailing of employees among rotational cyber workforce positions at agencies, which may be incorporated into and implemented through mechanisms in existence on the date of enactment of this Act.

"(2) Updating.—The Director may, in consultation with the Councils, the Secretary, and other entities as the Director determines appropriate, periodically update the operation plan developed and issued under paragraph (1).

"(b) Requirements.—The operation plan developed and issued under subsection (a) shall, at a minimum—

"(1) identify agencies for participation in the rotational cyber workforce program;

"(2) establish procedures for the rotational cyber workforce program, including—

"(A) any training, education, or career development requirements associated with participation in the rotational cyber workforce program;

"(B) any prerequisites or requirements for participation in the rotational cyber workforce program; and

"(C) appropriate rotational cyber workforce program performance measures, reporting requirements, employee exit surveys, and other accountability devices for the evaluation of the program;

"(3) provide that participation in the rotational cyber workforce program by an employee shall be voluntary;

"(4) provide that an employee shall be eligible to participate in the rotational cyber workforce program if the head of the employing agency of the employee, or a designee of the head of the employing agency of the employee, approves of the participation of the employee;

"(5) provide that the detail of an employee to a rotational cyber workforce position under the rotational cyber workforce program shall be on a nonreimbursable basis;

"(6) provide that agencies may agree to partner to ensure that the employing agency of an employee that participates in the rotational cyber workforce program is able to fill the position vacated by the employee;

"(7) require that an employee detailed to a rotational cyber workforce position under the rotational cyber workforce program, upon the end of the period of service with respect to the detail, shall be entitled to return to the position held by the employee, or an equivalent position, in the employing agency of the employee without loss of pay, seniority, or other rights or benefits to which the employee would have been entitled had the employee not been detailed;

"(8) provide that discretion with respect to the assignment of an employee under the rotational cyber workforce program shall remain with the employing agency of the employee;

"(9) require that an employee detailed to a rotational cyber workforce position under the rotational cyber workforce program in an agency that is not the employing agency of the employee shall have all the rights that would be available to the employee if the employee were detailed under a provision of law other than this Act from the employing agency to the agency in which the rotational cyber workforce position is located;

"(10) provide that participation by an employee in the rotational cyber workforce program shall not constitute a change in the conditions of the employment of the employee; and

"(11) provide that an employee participating in the rotational cyber workforce program shall receive performance evaluations relating to service in the rotational cyber workforce program in a participating agency that are—

"(A) prepared by an appropriate officer, supervisor, or management official of the employing agency, acting in coordination with the supervisor at the agency in which the employee is performing service in the rotational cyber workforce position;

"(B) based on objectives identified in the operation plan with respect to the employee; and

"(C) based in whole or in part on the contribution of the employee to the agency in which the employee performed such service, as communicated from that agency to the employing agency of the employee.

"(c) Program Requirements for Rotational Service.—

"(1) In general.—An employee serving in a cyber workforce position in an agency may, with the approval of the head of the agency, submit an application for detail to a rotational cyber workforce position that appears on the list developed under section 3(b).

"(2) OPM approval for certain positions.—An employee serving in a position in the excepted service may only be selected for a rotational cyber workforce position that is in the competitive service with the prior approval of the Office of Personnel Management, in accordance with section 300.301 of title 5, Code of Federal Regulations, or any successor thereto.

"(3) Selection and term.—

"(A) Selection.—The head of an agency shall select an employee for a rotational cyber workforce position under the rotational cyber workforce program in a manner that is consistent with the merit system principles under section 2301(b) of title 5, United States Code.

"(B) Term.—Except as provided in subparagraph (C), and notwithstanding section 3341(b) of title 5, United States Code, a detail to a rotational cyber workforce position shall be for a period of not less than 180 days and not more than 1 year.

"(C) Extension.—The Chief Human Capital Officer of the agency to which an employee is detailed under the rotational cyber workforce program may extend the period of a detail described in subparagraph (B) for a period of 60 days unless the Chief Human Capital Officer of the employing agency of the employee objects to that extension.

"(4) Written service agreements.—

"(A) In general.—The detail of an employee to a rotational cyber workforce position shall be contingent upon the employee entering into a written service agreement with the employing agency under which the employee is required to complete a period of employment with the employing agency following the conclusion of the detail that is equal in length to the period of the detail.

"(B) Other agreements and obligations.—A written service agreement under subparagraph (A) shall not supersede or modify the terms or conditions of any other service agreement entered into by the employee under any other authority or relieve the obligations between the employee and the employing agency under such a service agreement. Nothing in this subparagraph prevents an employing agency from terminating a service agreement entered into under any other authority under the terms of such agreement or as required by law or regulation.

"SEC. 5. REPORTING BY GAO.

"Not later than the end of the third fiscal year after the fiscal year in which the operation plan under section 4(a) is issued, the Comptroller General of the United States shall submit to Congress a report assessing the operation and effectiveness of the rotational cyber workforce program, which shall address, at a minimum—

"(1) the extent to which agencies have participated in the rotational cyber workforce program, including whether the head of each such participating agency has—

"(A) identified positions within the agency that are rotational cyber workforce positions;

"(B) had employees from other participating agencies serve in positions described in subparagraph (A); and

"(C) had employees of the agency request to serve in rotational cyber workforce positions under the rotational cyber workforce program in participating agencies, including a description of how many such requests were approved; and

"(2) the experiences of employees serving in rotational cyber workforce positions under the rotational cyber workforce program, including an assessment of—

"(A) the period of service;

"(B) the positions (including grade level and occupational series or work level) held by employees before completing service in a rotational cyber workforce position under the rotational cyber workforce program;

"(C) the extent to which each employee who completed service in a rotational cyber workforce position under the rotational cyber workforce program achieved a higher skill level, or attained a skill level in a different area, with respect to information technology, cybersecurity, or other cyber-related functions; and

"(D) the extent to which service in rotational cyber workforce positions has affected intra-agency and interagency integration and coordination of cyber practices, functions, and personnel management.

"SEC. 6. SUNSET.

"Effective 5 years after the date of enactment of this Act [June 21, 2022], this Act is repealed."

Annual Report to Congress on Employees or Members of Armed Services Detailed to Executive Agencies; Exemptions

Pub. L. 103–329, title VI, §619, Sept. 30, 1993, 108 Stat. 2420, which directed each Executive agency detailing personnel submit an annual report to Senate and House Committees on Appropriations on all employees or members of armed services detailed to Executive agencies, listing grade, position, and offices of each person detailed and agency to which each such person was detailed, with exemptions for certain intelligence agencies, terminated, effective May 15, 2000, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 151 of House Document No. 103–7. Similar provisions were contained in the following prior appropriations acts:

Pub. L. 103–123, title VI, §617, Oct. 28, 1993, 107 Stat. 1263.

Pub. L. 102–393, title VI, §619, Oct. 6, 1992, 106 Stat. 1769; repealed by Pub. L. 104–66, title III, §3001(h), Dec. 21, 1995, 109 Stat. 734.

Pub. L. 102–141, title VI, §619, Oct. 28, 1991, 105 Stat. 871.

Pub. L. 101–509, title VI, §616, Nov. 5, 1990, 104 Stat. 1474.

Pub. L. 101–136, title VI, §616, Nov. 3, 1989, 103 Stat. 819.

Pub. L. 100–440, title VI, §616, Sept. 22, 1988, 102 Stat. 1754.

Pub. L. 100–202, §101(m) [title VI, §621], Dec. 22, 1987, 101 Stat. 1329–390, 1329-427.

§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, the term "base closure law" has the meaning given such term in section 101(a)(17) of title 10.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424; Pub. L. 104–106, div. A, title X, §1033(a), Feb. 10, 1996, 110 Stat. 429; Pub. L. 109–163, div. A, title X, §1056(a)(4), Jan. 6, 2006, 119 Stat. 3439.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 38.	R.S. §166. May 28, 1896, ch. 252, §3, 29 Stat. 179.

The words "Executive department" are substituted for "department" as the definition of "department" applicable to this section is coextensive with the definition of "Executive department" in section 101.

The words "or military department" are inserted to preserve the application of the source law. Before enactment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the Department of the Navy, and the Department of the Air Force were Executive departments. The National Security Act Amendments of 1949 established the Department of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the military departments by virtue of section 12(g) of the National Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser's note for section 301.

The word "detail" is coextensive with and is substituted for "alter the distribution". The word "clerks" is omitted as included in "employees". The words "as he may find it necessary and proper to do" and "from time to time" are omitted as surplusage.

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, §201(d), as added Aug. 10, 1949, ch. 412, §4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides "Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense" is omitted from this title but is not repealed.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2006—Subsec. (c). Pub. L. 109–163 amended subsec. (c) generally. Prior to amendment, subsec. (c) defined the terms "base closure law" and "military installation" for purposes of this section.

1996—Subsec. (b). Pub. L. 104–106 designated existing provisions as par. (1) and added par. (2).

Subsec. (c). Pub. L. 104–106, §1033(a)(2), added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–106, div. A, title X, §1033(b), Feb. 10, 1996, 110 Stat. 430, provided that: "The amendments made by subsection (a) [amending this section] apply to details made before the date of the enactment of this Act [Feb. 10, 1996] but still in effect on that date and details made on or after that date."

Transfer of Appropriated Funds; Funding of Detailed Employees

For restriction on availability of funds for salaries of employees reassigned on temporary detail basis to another position without independent approval by head of employing department or agency, see section 515(3) of Pub. L. 103–333, set out as a note under section 1301 of Title 31, Money and Finance.

[§3342. Repealed. Pub. L. 102–378, §2(13)(A), Oct. 2, 1992, 106 Stat. 1347]

Section, added Pub. L. 101–416, §2(a)(1), Oct. 12, 1990, 104 Stat. 902, related to Federal participants in executive exchange programs.

A prior section 3342, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425, which prohibited details of employees from field service to Executive department in District of Columbia except for temporary duty, details specifically provided for by law, or detailing of one employee from Bureau of Customs for duty in District of Columbia, was repealed by Pub. L. 89–762, §1(a), Nov. 5, 1966, 80 Stat. 1312.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal

Section repealed effective Oct. 1, 1991, see section 9(b)(3) of Pub. L. 102–378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 91–175, pt. V, §502(a), Dec. 30, 1969, 83 Stat. 825.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 2331.	Aug. 28, 1958, Pub. L. 85–795, §2, 72 Stat. 959.
(b)–(e)	5 U.S.C. 2332.	Aug. 28, 1958, Pub. L. 85–795, §3, 72 Stat. 959.

In subsection (a)(2), the words "without a change of position from the agency by which he is employed to an international organization" are substituted for "without the employee's transfer from the Federal agency by which he is employed" to eliminate the necessity of carrying into this section the definition of "transfer" appearing in former section 2331(5).

In subsection (e), the words "section 209 of title 18" are substituted for "section 1914 of title 18" on authority of the Act of Oct. 23, 1962, Pub. L. 87–849, §2, 76 Stat. 1126.

Other definitions appearing in former section 2331 are omitted from this section as inappropriate but are carried into section 3581.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1969—Subsec. (b). Pub. L. 91–175 substituted "5" for "3" and inserted provision enabling President, regarding an agency employee detailed to an international organization for 5 years, to extend the 5-year period for up to an additional 3 years.

Executive Documents

Details to International Organizations

For provisions concerning the providing for details of Federal employees to international organizations and the delegation of Presidential authority, concerning the extension of a detail under this section, to the Secretary of State, see Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, set out as a note under section 3584 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 95–251, §2(a)(1), (b)(2), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 1010 (4th sentence).	June 11, 1946, ch. 324, §11 (4th sentence), 60 Stat. 244.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

Pub. L. 95–251 substituted references to administrative law judges for references to hearing examiners in section catchline and wherever appearing in text.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§3345. Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability 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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–611; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

References in Text

The General Schedule, referred to in subsec. (a)(3)(B), is set out under section 5332 of this title.

Prior Provisions

A prior section 3345, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 100–398, §7(a)(1), (2), Aug. 17, 1988, 102 Stat. 988, provided for details to office of head of Executive agency or military department, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681-616, effective 30 days after Oct. 21, 1998.

Amendments

2004—Subsec. (a). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 105–277, div. C, title I, §151(d), Oct. 21, 1998, 112 Stat. 2681–616, provided that:

"(1) Effective date.—Subject to paragraph (2), this section [enacting this section and sections 3346 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3301 of this title] and the amendments made by this section shall take effect 30 days after the date of enactment of this section [Oct. 21, 1998].

"(2) Application.—

"(A) In general.—This section shall apply to any office that becomes vacant after the effective date of this section.

"(B) Immediate application of time limitation.—Notwithstanding subparagraph (A), for any office vacant on the effective date of this section, the time limitations under section 3346 of title 5, United States Code (as amended by this section) shall apply to such office. Such time limitations shall apply as though such office first became vacant on the effective date of this section.

"(C) Certain nominations.—If the President submits to the Senate the nomination of any person after the effective date of this section for an office for which such person had been nominated before such date, the next nomination of such person after such date shall be considered a first nomination of such person to that office for purposes of sections 3345 through 3349 and section 3349d of title 5, United States Code (as amended by this section)."

Executive Documents

Ex. Ord. No. 13472. Executive Branch Responsibilities With Respect To Orders of Succession

Ex. Ord. No. 13472, Sept. 11, 2008, 73 F.R. 53353, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the Federal Government to ensure that each executive branch agency can perform its essential functions and remain an effectively functioning part of the Federal Government under all conditions. Accordingly, each agency shall take all appropriate actions to establish, maintain, and, as necessary, revise an order of succession, or to propose presidential action to establish or revise an order of succession.

Sec. 2. Definitions. As used in this order:

(a) "agency" means:

(i) an executive agency as defined in section 105 of title 5, United States Code, other than the Government Accountability Office; and

(ii) the United States Postal Service and the Postal Regulatory Commission; and

(b) "order of succession" means a list of officials by position who shall act as and perform the functions and duties of the office of the head of the agency in the event that the office-holder has died, resigned, or otherwise become unable to perform the functions and duties of the office. "Order of succession" does not include any order, rule, memorandum, or other document delegating or partially delegating the authority of an office.

Sec. 3. Orders of Succession Requiring Presidential Action.

(a) Each agency for which presidential action is required to establish an order of succession shall draft a proposed order of succession if no such order exists and, not later than 30 days from the date of this order, send such proposed draft order to the Counsel to the President for review and comment.

(b) Each agency described in subsection 3(a) of this order shall send any proposed updates or revisions to the agency's order of succession to the Counsel to the President for review and comment.

(c) Upon completion of the requirements set forth by subsections (a) or (b) of this section with respect to a proposed order, the agency shall submit the proposed order to the Office of Management and Budget in accordance with Executive Order 11030, as amended.

Sec. 4. Orders of Succession Not Requiring Presidential Action. (a) Each agency for which presidential action is not required to establish an order of succession because of the agency's existing legal authority shall establish and maintain such order in accordance with applicable law and any applicable guidance issued by the President or the Secretary of Homeland Security, including the laws and guidance regarding continuity plans and programs for the executive branch.

(b) Each agency described in subsection 4(a) of this order shall update and revise its order of succession as necessary. Before implementing any revisions to its order of succession, such agency shall send the proposed revisions to the Counsel to the President for review and comment.

(c) Not later than 30 days from the date of this order, and not later than 7 days from the issuance date of any subsequent final revision to an existing order of succession, each agency described in subsection 4(a) of this order shall provide a copy of its order of succession to the Counsel to the President, the Assistant to the President for Homeland Security and Counterterrorism, and the Director of the Office of Management and Budget.

Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department, agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(b) Nothing in this order shall be construed to delegate the President's authority under the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., to designate individuals to perform the functions and duties of a vacant office temporarily in an acting capacity.

(c) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

George W. Bush.      

EXECUTIVE DOCUMENTS DESIGNATING ORDERS OF SUCCESSION

Provisions relating to the exercise of Presidential authorities to designate an order of succession for executive agencies and offices are contained in the following:

Council on Environmental Quality

Memorandum of President of the United States, Sept. 6, 2019, 84 F.R. 48227, as corrected Sept. 16, 2019, 84 F.R. 48549.

Memorandum of President of the United States, Jan. 13, 2017, 82 F.R. 7627, revoked by Memorandum of President of the United States, §3, Sept. 6, 2019, 84 F.R. 48227.

Memorandum of President of the United States, Mar. 13, 2015, 80 F.R. 14289, revoked by Memorandum of President of the United States, §3, Jan. 13, 2017, 82 F.R. 7627.

Memorandum of President of the United States, Sept. 18, 2008, 73 F.R. 54487, revoked by Memorandum of President of the United States, §3, Mar. 13, 2015, 80 F.R. 14289.

Department of Agriculture

Ex. Ord. No. 13612, May 21, 2012, 77 F.R. 31153.

Ex. Ord. No. 13542, May 13, 2010, 75 F.R. 27921, revoked by Ex. Ord. No. 13612, §3, May 21, 2012, 77 F.R. 31154.

Ex. Ord. No. 13241, Dec. 18, 2001, 66 F.R. 66258, as amended by Ex. Ord. No. 13261, §4(a), Mar. 19, 2002, 67 F.R. 13243; Ex. Ord. No. 13484, §§1, 2, Jan. 9, 2009, 74 F.R. 2285, revoked by Ex. Ord. No. 13542, §3, May 13, 2010, 75 F.R. 27922.

Ex. Ord. No. 11957, Jan. 13, 1977, 42 F.R. 3295, revoked by Ex. Ord. No. 13241, §4, Dec. 18, 2001, 66 F.R. 66259.

Department of Commerce

Ex. Ord. No. 13613, May 21, 2012, 77 F.R. 31155.

Ex. Ord. No. 13242, Dec. 18, 2001, 66 F.R. 66260, as amended by Ex. Ord. No. 13261, §4(b), Mar. 19, 2002, 67 F.R. 13243, revoked by Ex. Ord. No. 13613, §3, May 21, 2012, 77 F.R. 31155.

Ex. Ord. No. 11880, Oct. 2, 1975, 40 F.R. 46089, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12998, Apr. 5, 1996, 61 F.R. 15873, revoked by Ex. Ord. No. 13242, §4, Dec. 18, 2001, 66 F.R. 66261.

Department of Defense

Ex. Ord. No. 13963, Dec. 10, 2020, 85 F.R. 81331.

Ex. Ord. No. 13533, Mar. 1, 2010, 75 F.R. 10163, revoked by Ex. Ord. No. 13963, §3, Dec. 10, 2020, 85 F.R. 81332.

Ex. Ord. No. 13394, Dec. 22, 2005, 70 F.R. 76665, revoked by Ex. Ord. No. 13533, §3, Mar. 1, 2010, 75 F.R. 10164.

Ex. Ord. No. 13000, Apr. 24, 1996, 61 F.R. 18483, revoked by Ex. Ord. No. 13394, §5, Dec. 22, 2005, 70 F.R. 76666.

Department of Health and Human Services

Ex. Ord. No. 13461, Feb. 15, 2008, 73 F.R. 9437.

Ex. Ord. No. 13250, Dec. 28, 2001, 67 F.R. 1597, as amended by Ex. Ord. No. 13261, §4(h), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13461, §4, Feb. 15, 2008, 73 F.R. 9438.

Department of Homeland Security

For order of succession within the Department of Homeland Security, see Ex. Ord. No. 13286, §88, Feb. 28, 2003, 68 F.R. 10632, as amended, set out as a note under section 111 of Title 6, Domestic Security.

Department of Housing and Urban Development

Ex. Ord. No. 13243, Dec. 18, 2001, 66 F.R. 66262, as amended by Ex. Ord. No. 13261, §4(c), Mar. 19, 2002, 67 F.R. 13244.

Ex. Ord. No. 11274, Mar. 30, 1966, 31 F.R. 5243, as amended by Pub. L. 101–509, title V, §529 [title I, §112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, revoked by Ex. Ord. No. 13243, §4, Dec. 18, 2001, 66 F.R. 66263.

Department of Justice

Ex. Ord. No. 13787, Mar. 31, 2017, 82 F.R. 16723.

Ex. Ord. No. 13775, Feb. 9, 2017, 82 F.R. 10697, revoked by Ex. Ord. No. 13787, §3, Mar. 31, 2017, 82 F.R. 16723.

Ex. Ord. No. 13762, Jan. 13, 2017, 82 F.R. 7619, revoked by Ex. Ord. No. 13775, §3, Feb. 9, 2017, 82 F.R. 10697.

Ex. Ord. No. 13557, Nov. 4, 2010, 75 F.R. 68679, revoked by Ex. Ord. No. 13762, §3 Jan. 13, 2017, 82 F.R. 7619.

Ex. Ord. No. 13481, Dec. 9, 2008, 73 F.R. 75531, revoked by Ex. Ord. No. 13557, §3, Nov. 4, 2010, 75 F.R. 68679.

Memorandum of President of the United States, Dec. 8, 2006, 71 F.R. 74753, superseded by Ex. Ord. No. 13481, §3, Dec. 9, 2008, 73 F.R. 75531.

Department of Labor

Ex. Ord. No. 13755, Dec. 23, 2016, 81 F.R. 96329.

Ex. Ord. No. 13245, Dec. 18, 2001, 66 F.R. 66268, as amended by Ex. Ord. No. 13261, §4(e), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13755, §3, Dec. 23, 2016, 81 F.R. 96329.

Ex. Ord. No. 10513, Jan. 19, 1954, 19 F.R. 369, revoked by Ex. Ord. No. 13245, §4, Dec. 8, 2001, 66 F.R. 66269.

Department of State

Ex. Ord. No. 13251, Dec. 28, 2001, 67 F.R. 1599, as amended by Ex. Ord. No. 13261, §4(i), Mar. 19, 2002, 67 F.R. 13244.

Ex. Ord. No. 12343, Jan. 27, 1982, 47 F.R. 4225, revoked by Ex. Ord. No. 13251, §4, Dec. 28, 2001, 67 F.R. 1599.

Department of the Air Force

Ex. Ord. No. 12909, Apr. 22, 1994, 59 F.R. 21909.

Department of the Army

Ex. Ord. No. 12908, Apr. 22, 1994, 59 F.R. 21907.

Department of the Interior

Ex. Ord. No. 13915, Apr. 14, 2020, 85 F.R. 21733.

Ex. Ord. No. 13244, Dec. 18, 2001, 66 F.R. 66267, as amended by Ex. Ord. No. 13261, §4(d), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13915, §4, Apr. 14, 2020, 85 F.R. 21734.

Ex. Ord. No. 11487, Oct. 6, 1969, 34 F.R. 15593, as amended by Pub. L. 101–509, title V, §529 [title I, §112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, revoked by Ex. Ord. No. 13244, §4, Dec. 18, 2001, 66 F.R. 66267.

Department of the Navy

Ex. Ord. No. 12879, Nov. 8, 1993, 58 F.R. 59929.

Department of the Treasury

Ex. Ord. No. 13735, Aug. 12, 2016, 81 F.R. 54709.

Ex. Ord. No. 13246, Dec. 18, 2001, 66 F.R. 66270, as amended by Ex. Ord. No. 13261, §4(f), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13735, §4, Aug. 12, 2016, 81 F.R. 54709.

Ex. Ord. No. 11822, Dec. 10, 1974, 39 F.R. 43275, revoked by Ex. Ord. No. 13246, §4, Dec. 18, 2001, 66 F.R. 66270.

Department of Transportation

Ex. Ord. No. 13485, Jan. 9, 2009, 74 F.R. 2287.

Department of Veterans Affairs

Ex. Ord. No. 13736, Aug. 12, 2016, 81 F.R. 54711.

Ex. Ord. No. 13247, Dec. 18, 2001, 66 F.R. 66271, as amended by Ex. Ord. No. 13261, §4(g), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13736, §3(a), (b), Aug. 12, 2016, 81 F.R. 54711.

Memorandum of President of the United States, Feb. 12, 2003, 68 F.R. 10141, revoked by Ex. Ord. No. 13736, §3(d), Aug. 12, 2016, 81 F.R. 54711.

Environmental Protection Agency

Ex. Ord. No. 13973, Jan. 8, 2021, 86 F.R. 3733.

Ex. Ord. No. 13763, Jan. 13, 2017, 82 F.R. 7621, revoked by Ex. Ord. No. 13973, §3, Jan. 8, 2021, 86 F.R. 3734.

Ex. Ord. No. 13737, Aug. 12, 2016, 81 F.R. 54713, revoked by Ex. Ord. No. 13763, §3, Jan. 13, 2017, 82 F.R. 7622.

Ex. Ord. No. 13614, May 21, 2012, 77 F.R. 31157, revoked by Ex. Ord. No. 13737, §3, Aug. 12, 2016, 81 F.R. 54714.

Ex. Ord. No. 13261, Mar. 19, 2002, 67 F.R. 13243, as amended by Ex. Ord. No. 13344, July 7, 2004, 69 F.R. 41747, revoked by Ex. Ord. No. 13614, §3, May 21, 2012, 77 F.R. 31157, amended by Ex. Ord. No. 13736, §3(b), Aug. 12, 2016, 81 F.R. 54711.

Federal Bureau of Investigation

Memorandum of President of the United States, Feb. 9, 2007, 72 F.R. 7343.

Federal Emergency Management Agency

Memorandum of President of the United States, Nov. 26, 2002, 67 F.R. 79513, terminated upon the transfer of the authorities, functions, personnel, and assets of the Federal Emergency Management Agency to the Department of Homeland Security.

Federal Mediation and Conciliation Service

Memorandum of President of the United States, Jan. 13, 2017, 82 F.R. 7629.

Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96333.

Memorandum of President of the United States, Oct. 17, 2014, 79 F.R. 63803.

General Services Administration

Memorandum of President of the United States, Sept. 2, 2020, 85 F.R. 55585.

Memorandum of President of the United States, Sept. 20, 2013, 78 F.R. 59161, revoked by Memorandum of President of the United States, §3, Sept. 2, 2020, 85 F.R. 55585.

Millennium Challenge Corporation

Memorandum of President of the United States, May 21, 2012, 77 F.R. 31161.

National Aeronautics and Space Administration

Memorandum of President of the United States, Jan. 16, 2009, 74 F.R. 4099.

National Archives and Records Administration

Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96331.

Memorandum of President of the United States, May 21, 2012, 77 F.R. 31163, revoked by Memorandum of President of the United States, §3, Dec. 23, 2016, 81 F.R. 96331.

National Endowment for the Arts

Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96335.

National Endowment for the Humanities

Memorandum of President of the United States, Aug. 12, 2016, 81 F.R. 54717.

Office of Management and Budget

Ex. Ord. No. 13615, May 21, 2012, 77 F.R. 31159.

Ex. Ord. No. 13370, Jan. 13, 2005, 70 F.R. 3137, revoked by Ex. Ord. No. 13615, §3, May 21, 2012, 77 F.R. 31159.

Office of Personnel Management

Memorandum of President of the United States, Dec. 10, 2020, 85 F.R. 81775.

Memorandum of President of the United States, Aug. 12, 2016, 81 F.R. 54715, revoked by Memorandum of President of the United States, §3, Dec. 10, 2020, 85 F.R. 81775.

Memorandum of President of the United States, May 21, 2012, 77 F.R. 31165, revoked by Memorandum of President of the United States, §3, Aug. 12, 2016, 81 F.R. 54715.

Memorandum of President of the United States, May 5, 2005, 70 F.R. 28773, superseded by Memorandum of President of the United States, May 21, 2012, 77 F.R. 31165.

Memorandum of President of the United States, Mar. 11, 2003, 68 F.R. 12281, superseded by Memorandum of President of the United States, May 5, 2005, 70 F.R. 28773.

Office of Science and Technology Policy

Memorandum of President of the United States, Jan. 13, 2017, 82 F.R. 7625.

Memorandum of President of the United States, Aug. 5, 2009, 74 F.R. 39871, revoked by Memorandum of President of the United States, §3, Jan. 13, 2017, 82 F.R. 7625.

Office of the Director of National Intelligence

Memorandum of President of the United States, Sept. 20, 2013, 78 F.R. 59159.

Memorandum of President of the United States, Mar. 8, 2011, 76 F.R. 13499, revoked by Memorandum of President of the United States, §4, Sept. 20, 2013, 78 F.R. 59159.

Memorandum of President of the United States, Oct. 3, 2008, 73 F.R. 58869, revoked by Memorandum of President of the United States, §5, Mar. 8, 2011, 76 F.R. 13499.

Memorandum of President of the United States, Dec. 20, 2005, 70 F.R. 76375, superseded by Memorandum of President of the United States, §4, Oct. 3, 2008, 73 F.R. 58869.

Office of the United States Trade Representative

Memorandum of President of the United States, Feb. 20, 2007, 72 F.R. 8085.

Overseas Private Investment Corporation

Memorandum of President of the United States, June 6, 2011, 76 F.R. 33613.

Memorandum of President of the United States, Jan. 16, 2009, 74 F.R. 4101, revoked by Memorandum of President of the United States, §3, June 6, 2011, 76 F.R. 33613.

Pension Benefit Guaranty Corporation

Memorandum of President of the United States, Apr. 2, 2020, 85 F.R. 19637.

Memorandum of President of the United States, Feb. 1, 2013, 78 F.R. 8953, revoked by Memorandum of President of the United States, §3, Apr. 2, 2020, 85 F.R. 19637.

Memorandum of President of the United States, Dec. 9, 2008, 73 F.R. 75533, superseded by Memorandum of President of the United States, §3, Feb. 1, 2013, 78 F.R. 8953.

Social Security Administration

Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96337.

Memorandum of President of the United States, Oct. 17, 2014, 79 F.R. 63805, revoked by Memorandum of President of the United States, §3, Dec. 23, 2016, 81 F.R. 96337.

Memorandum of President of the United States, Oct. 17, 2008, 73 F.R. 62845, revoked by Memorandum of President of the United States, §3, Oct. 17, 2014, 79 F.R. 63805.

Memorandum of President of the United States, Apr. 17, 2006, 71 F.R. 20333, superseded by Memorandum of President of the United States, §3, Oct. 17, 2008, 73 F.R. 62845.

United States Agency for International Development

Memorandum of President of the United States, Dec. 9, 2008, 73 F.R. 75535.

United States Section, International Boundary and Water Commission, United States and Mexico

Memorandum of President of the United States, Aug. 31, 2009, 74 F.R. 45533.

United States International Development Finance Corporation

Memorandum of President of the United States, Jan. 8, 2021, 86 F.R. 2949.

§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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–612.)

Editorial Notes

Prior Provisions

A prior section 3346, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for details to subordinate offices, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681-616, effective 30 days after Oct. 21, 1998. See section 3345 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§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 Government Accountability 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 Government Accountability 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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 106–31, title V, §5011, May 21, 1999, 113 Stat. 112; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Prior Provisions

A prior section 3347, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for Presidential authority relating to details, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681-616, effective 30 days after Oct. 21, 1998. See section 3345 of this title.

Amendments

2004—Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions of subsec. (a) and in subsec. (b).

1999—Subsec. (b). Pub. L. 106–31 substituted "subsection (a)(1)" for "subsection (a)(2)".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§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 Government Accountability 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 Government Accountability 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 Government Accountability Office) if a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Prior Provisions

A prior section 3348, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 100–398, §7(b), Aug. 17, 1988, 102 Stat. 988, provided for time limitations relating to details, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681-616, effective 30 days after Oct. 21, 1998. See section 3346 of this title.

Amendments

2004—Subsec. (b). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in two places.

Subsec. (e)(5). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§3349. Reporting of vacancies

(a) The head of each Executive agency (including the Executive Office of the President, and other than the Government Accountability 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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–614; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Prior Provisions

A prior section 3349, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for restrictions relating to details to fill vacancies, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681-616, effective 30 days after Oct. 21, 1998. See section 3347 of this title.

Amendments

2004—Subsec. (a). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§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.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§3349e. Presidential explanation of failure to nominate an inspector general

If the President fails to make a formal nomination for a vacant inspector general position that requires a formal nomination by the President to be filled within the period beginning on the later of the date on which the vacancy occurred or on which a nomination is rejected, withdrawn, or returned, and ending on the day that is 210 days after that date, the President shall communicate, within 30 days after the end of such period and not later than June 1 of each year thereafter, to the appropriate congressional committees, as defined in section 12 of the Inspector General Act of 1978 (5 U.S.C. App.) ¹—

(1) the reasons why the President has not yet made a formal nomination; and

(2) a target date for making a formal nomination.

(Added Pub. L. 117–263, div. E, title LII, §5221(a), Dec. 23, 2022, 136 Stat. 3234.)

Editorial Notes

References in Text

Section 12 of the Inspector General Act of 1978, referred to in text, is section 12 of Pub. L. 95–452, which was set out in the Appendix to this title and was repealed and restated as section 401 of this title by Pub. L. 117–286, §§3(b), 7, Dec. 27, 2022, 136 Stat. 4207, 4361. For definition of "appropriate congressional committees", see Amendments Not Shown in Text note set out under section 401 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 117–263, div. E, title LII, §5221(c), Dec. 23, 2022, 136 Stat. 3234, provided that: "The amendment made by subsection (a) [enacting this section] shall take effect—

"(1) on the date of enactment of this Act [Dec. 23, 2022] with respect to any vacancy first occurring on or after that date; and

"(2) on the day that is 210 days after the date of enactment of this Act with respect to any vacancy that occurred before the date of enactment of this Act."

¹ See References in Text note below.

SUBCHAPTER IV—TRANSFERS

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 94–183, §2(4), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 854 (1st 2 sentences, so much as relates to transfer).	June 27, 1944, ch. 287, §5 (1st 2 sentences, so much as relates to transfer), 58 Stat. 388.

The section is restated to conform to section 3312.

The words "in the competitive service, an Executive agency, or the government of the District of Columbia" are added on authority of former sections 851, 858, and 869, which are carried into this title. The last sentence is added on authority of former section 869.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively.

1975—Pub. L. 94–183 struck out ", except an appointment made under section 3311 of title 39" after "or made with the advice and consent of, the Senate".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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; and

(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.

(Added Pub. L. 101–12, §5(a), Apr. 10, 1989, 103 Stat. 32.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.

SUBCHAPTER V—PROMOTION

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 638 (as applicable to promotion).	Jan. 16, 1883, ch. 27, §7 (as applicable to promotion), 22 Stat. 406.

The words "That after the expiration of six months from the passage of this act" are omitted as executed. The words "in the competitive service" are substituted for "in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules" because of the definition of "competitive service" in section 2102. In the second sentence, the words "the provisions of this title governing the competitive service" are substituted for "this act".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2123(f).	Sept. 1, 1954, ch. 1208, §304(f), 68 Stat. 1113.

The word "incentive" is added for clarification. The second sentence is added on authority of former section 2122, which is carried into section 4501.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 427; Pub. L. 94–183, §2(5), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 854 (1st 2 sentences, so much as relates to promotion).	June 27, 1944, ch. 287, §5 (1st 2 sentences, so much as relates to promotion), 58 Stat. 388.

The section is restated to conform to section 3312.

The words "in the competitive service, an Executive agency, or the government of the District of Columbia" are added on authority of former sections 851, 858, and 869, which are carried into this title. The last sentence is added on authority of former section 869.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively.

1975—Pub. L. 94–183 struck out ", except an appointment made under section 3311 of title 39" after "or made with the advice and consent of, the Senate".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

[§3364. Repealed. Pub. L. 94–183, §2(6), Dec. 31, 1975, 89 Stat. 1057]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 427, related to promotion to regular force of substitute employees in postal field service.

SUBCHAPTER VI—ASSIGNMENTS TO AND FROM STATES

§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 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 Publishing Office, the Congressional Budget Office, the United States Postal Service, the Postal Regulatory 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.

(Added Pub. L. 91–648, title IV, §402(a), Jan. 5, 1971, 84 Stat. 1920; amended Pub. L. 93–638, title I, §104(a), formerly §105(a), Jan. 4, 1975, 88 Stat. 2208, renumbered §104(a), Pub. L. 100–472, title II, §203(a), Oct. 5, 1988, 102 Stat. 2290; Pub. L. 95–454, title VI, §603(a), Oct. 13, 1978, 92 Stat. 1189; Pub. L. 100–472, title II, §203(b), Oct. 5, 1988, 102 Stat. 2290; Pub. L. 101–301, §2(c), May 24, 1990, 104 Stat. 207; Pub. L. 103–337, div. A, title X, §1068(a), Oct. 5, 1994, 108 Stat. 2852; Pub. L. 109–435, title VI, §604(b), Dec. 20, 2006, 120 Stat. 3241; Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537.)

Editorial Notes

References in Text

The Alaska Native Claims Settlement Act, referred to in par. (2)(C), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688, which is classified generally to chapter 33 (§1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43 and Tables.

Section 4 of the Indian Self-Determination and Education Assistance Act, referred to in par. (2)(C), is classified to section 5304 of Title 25, Indians.

Amendments

2006—Par. (3). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission".

1994—Par. (4)(D). Pub. L. 103–337 added subpar. (D).

1990—Par. (2)(C). Pub. L. 101–301 substituted "section 4" for "section 4(m)".

1988—Par. (2)(C). Pub. L. 100–472, §203(b), amended Pub. L. 93–638, by substituting "section 4(m)" for "section 4(c)" in the provision it added as par. (2)(C) of this section. See 1975 Amendment note below.

1978—Par. (1)(A). Pub. L. 95–454, §603(a)(1), inserted reference to the Trust Territory of the Pacific Islands.

Pars. (3), (4). Pub. L. 95–454, §603(a)(2), added pars. (3) and (4).

1975—Par. (2)(C). Pub. L. 93–638, as amended by Pub. L. 100–472, §203(b), added par. (2)(C).

Statutory Notes and Related Subsidiaries

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in par. (3) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Pub. L. 91–648, title IV, §404, Jan. 5, 1971, 84 Stat. 1925, provided that: "This title [enacting this subchapter and repealing sections 1881 to 1888 of Title 7, Agriculture, section 869b of Title 20, Education, and section 246(f) of Title 42, The Public Health and Welfare, (less applicability to commissioned officers of the Public Health Service)] shall become effective sixty days after the date of enactment of this Act [Jan. 5, 1971]."

Employee Exchange Program Between Federal Employees and Employees of State and Local Governments

Pub. L. 108–196, §3, Dec. 19, 2003, 117 Stat. 2896, provided that:

"(a) Definitions.—In this section—

"(1) the term 'employing agency' means the Federal, State, or local government agency with which the participating employee was employed before an assignment under the Program;

"(2) the term 'participating employee' means an employee who is participating in the Program; and

"(3) the term 'Program' means the employee exchange program established under subsection (b).

"(b) Establishment.—The President shall establish an employee exchange program between Federal agencies that perform law enforcement functions and agencies of State and local governments that perform law enforcement functions.

"(c) Conduct of Program.—The Program shall be conducted in accordance with subchapter VI of chapter 33 of title 5, United States Code.

"(d) Qualifications.—An employee of an employing agency who performs law enforcement functions may be selected to participate in the Program if the employee—

"(1) has been employed by that employing agency for a period of more than 3 years;

"(2) has had appropriate training or experience to perform the work required by the assignment;

"(3) has had an overall rating of satisfactory or higher on performance appraisals from the employing agency during the 3-year period before being assigned to another agency under this section; and

"(4) agrees to return to the employing agency after completing the assignment for a period not less than the length of the assignment.

"(e) Written Agreement.—An employee shall enter into a written agreement regarding the terms and conditions of the assignment before beginning the assignment with another agency."

Declaration of Purpose

Pub. L. 91–648, title IV, §401, Jan. 5, 1971, 84 Stat. 1920, as amended by Pub. L. 95–454, title VI, §602(b), Oct. 13, 1978, 92 Stat. 1189, provided that: "The purpose of this title [see Effective Date note above] is to provide for the temporary assignment of personnel between the Federal Government and State and local governments, institutions of higher education, and other organizations."

Executive Documents

Termination of Trust Territory of the Pacific Islands

For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.

§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.

(Added Pub. L. 91–648, title IV, §402(a), Jan. 5, 1971, 84 Stat. 1921; amended Pub. L. 93–638, title I, §104(k), (l), as added Pub. L. 100–472, title II, §203(f), Oct. 5, 1988, 102 Stat. 2290; Pub. L. 95–454, title VI, §603(b), (c), Oct. 13, 1978, 92 Stat. 1190; Pub. L. 98–146, title II, Nov. 4, 1983, 97 Stat. 946; Pub. L. 103–89, §3(b)(1)(A), Sept. 30, 1993, 107 Stat. 981; Pub. L. 103–337, div. A, title X, §1068(b), Oct. 5, 1994, 108 Stat. 2852.)

Editorial Notes

Amendments

1994—Subsec. (e). Pub. L. 103–337 added subsec. (e).

1993—Subsec. (d). Pub. L. 103–89 substituted "and additional step-increases, as defined in chapter 53" for "additional step-increases, merit pay, and cash awards, as defined in chapters 53 and 54".

1988—Subsecs. (a), (d). Pub. L. 100–472 added Pub. L. 93–638, §104(k), (l). See 1975 Amendment note below.

1983—Subsec. (a). Pub. L. 98–146 inserted sentence providing that, in the case of assignments made to Indian tribes or tribal organizations as defined in section 3371(2)(C) of this title, 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.

1978—Subsec. (a). Pub. L. 95–454, §603(b), (c)(1), substituted "a Federal" for "an executive" wherever appearing, and in cl. (1) inserted provisions relating to a noncareer appointee, limited term appointee, or limited emergency appointee, and an employee excepted from the competitive service.

Subsec. (b). Pub. L. 95–454, §603(b), (c)(2)–(4), in cls. (1) and (2) substituted "a Federal" for "an executive", and added cls. (3) and (4).

Subsec. (c). Pub. L. 95–454, §603(c)(5), added subsec. (c).

1975—Subsec. (a). Pub. L. 93–638, §104(k), as added by Pub. L. 100–472, inserted at end "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."

Subsec. (d). Pub. L. 93–638, §104(l), as added by Pub. L. 100–472, added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 1993 Amendment

Pub. L. 103–89, §3(c), Sept. 30, 1993, 107 Stat. 983, provided that: "The amendments made by this section [amending this section and sections 4501, 4502, 5302, 5332, 5334 to 5336, 5361 to 5363, 5948, and 8473 of this title, sections 1602, 1732, and 1733 of Title 10, Armed Forces, and section 731 of Title 31, Money and Finance, repealing sections 4302a and 5401 to 5410 of this title, and amending provisions set out as a note under section 5304 of this title] shall take effect as of November 1, 1993."

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Section effective sixty days after Jan. 5, 1971, see section 404 of Pub. L. 91–648, set out as a note under section 3371 of this title.

§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.

(Added Pub. L. 91–648, title IV, §402(a), Jan. 5, 1971, 84 Stat. 1921; amended Pub. L. 95–454, title VI, §603(b), title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1190, 1224; Pub. L. 102–378, §2(14), Oct. 2, 1992, 106 Stat. 1347.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (a), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.

Amendments

1992—Pub. L. 102–378 substituted "or local" for "and local" in section catchline.

1978—Subsecs. (a), (b). Pub. L. 95–454, §603(b), substituted "a Federal" for "an executive" and "Federal agency" for "executive agency".

Subsec. (c). Pub. L. 95–454, §§603(b), 906(a)(2), substituted "Federal agency" for "executive agency" wherever appearing, and "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Section effective sixty days after Jan. 5, 1971, see section 404 of Pub. L. 91–648, set out as a note under section 3371 of this title.

§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, chapter 131 of this title, chapter 21 of title 41, 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.

(Added Pub. L. 91–648, title IV, §402(a), Jan. 5, 1971, 84 Stat. 1923; amended Pub. L. 95–454, title VI, §603(b), (d), Oct. 13, 1978, 92 Stat. 1190; Pub. L. 97–258, §3(a)(6), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 107–107, div. A, title XI, §1117, Dec. 28, 2001, 115 Stat. 1241; Pub. L. 111–350, §5(a)(5), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 117–286, §4(c)(6), Dec. 27, 2022, 136 Stat. 4354.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (c)(2), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.

Amendments

2022—Subsec. (c)(2). Pub. L. 117–286 substituted "chapter 131 of this title," for "the Ethics in Government Act of 1978,".

2011—Subsec. (c)(2). Pub. L. 111–350 substituted "chapter 21 of title 41" for "section 27 of the Office of Federal Procurement Policy Act".

2001—Subsec. (c)(2). Pub. L. 107–107 inserted "the Ethics in Government Act of 1978, section 27 of the Office of Federal Procurement Policy Act," after "chapter 73 of this title,".

1982—Subsec. (c)(2). Pub. L. 97–258 substituted "sections 1343, 1344, and 1349(b)" for "section 638a".

1978—Subsec. (a). Pub. L. 95–454, §603(b), substituted "a Federal" for "an executive", and "Federal agency" for "executive agency" in two places.

Subsec. (b). Pub. L. 95–454, §603(b), (d)(1), inserted provisions relating to nonapplicability of exceptions to non-Federal employees, and substituted "Federal" for "executive".

Subsec. (c). Pub. L. 95–454, §603(b), (d)(2), (3), inserted provisions relating to pay received from the State or local government at less than the appropriate rate of pay, and provisions relating to contributions to employee benefit systems, and substituted "a Federal" for "an executive" and "Federal agency" for "executive agency" wherever appearing.

Subsec. (d). Pub. L. 95–454, §603(b), substituted "a Federal" for "an executive" in two places.

Subsec. (e). Pub. L. 95–454, §603(b), substituted "a Federal" for "an executive" and "Federal" for "executive".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Section effective sixty days after Jan. 5, 1971, see section 404 of Pub. L. 91–648, set out as a note under section 3371 of this title.

§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.

(Added Pub. L. 91–648, title IV, §402(a), Jan. 5, 1971, 84 Stat. 1924; amended Pub. L. 95–454, title VI, §603(b), (e), Oct. 13, 1978, 92 Stat. 1190, 1191; Pub. L. 104–201, div. A, title XVII, §1723(a)(1)(A), Sept. 23, 1996, 110 Stat. 2758.)

Editorial Notes

Amendments

1996—Subsec. (a)(3). Pub. L. 104–201, §1723(a)(1)(A)(i), substituted "section 5724a(a)" for "section 5724a(a)(1)".

Subsec. (a)(4). Pub. L. 104–201, §1723(a)(1)(A)(ii), substituted "section 5724a(c)" for "section 5724a(a)(3)".

Subsec. (a)(5). Pub. L. 104–201, §1723(a)(1)(A)(iii), substituted "section 5724a(g)" for "section 5724a(b)".

1978—Subsec. (a). Pub. L. 95–454, §603(b), (e), substituted "a Federal agency" for "an executive agency" in introductory text, substituted "Federal" for "executive" in cl. (1), added cl. (5), and redesignated former cl. (5) as (6).

Subsec. (b). Pub. L. 95–454, §603(b), substituted "the Federal" for "the executive".

Subsec. (c). Pub. L. 95–454, §603(b), substituted "a Federal agency" for "an executive agency".

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–201 effective 180 days after Sept. 23, 1996, see section 1725(a) of Pub. L. 104–201, set out as a note under section 5722 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Section effective sixty days after Jan. 5, 1971, see section 404 of Pub. L. 91–648, set out as a note under section 3371 of this title.

§3376. Regulations

The President may prescribe regulations for the administration of this subchapter.

(Added Pub. L. 91–648, title IV, §402(a), Jan. 5, 1971, 84 Stat. 1925.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective sixty days after Jan. 5, 1971, see section 404 of Pub. L. 91–648, set out as a note under section 3371 of this title.

Executive Documents

Ex. Ord. No. 11589. Delegation of Functions to Office of Personnel Management

Ex. Ord. No. 11589, Apr. 1, 1971, 36 F.R. 6343, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows:

Section 1. The Office of Personnel Management is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the following:

(a) The authority of the President under section 3376 of title 5 of the United States Code [this section] to prescribe regulations for the administration of subchapter VI, "Assignments to and from States," of chapter 33 of that title [this chapter].

(b) The authority of the President under section 205 (a)(4) of the Federal Civil Defense Act of 1950, as amended ([former] 50 U.S.C. App. 2286(a)(4)), and as affected by Reorganization Plan No. 1 of 1958 (72 Stat. 1799) [set out in the Appendix to this title], relating to the establishment and maintenance of personnel standards on the merit basis.

Sec. 2. To the extent that section 1(b) of this order is inconsistent with the provisions of Executive Order No. 10952 of July 20, 1961, as amended, section 1(b) shall control.

SUBCHAPTER VII—AIR TRAFFIC CONTROLLERS

§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),¹ 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.

(Added Pub. L. 92–297, §3(a), May 16, 1972, 86 Stat. 142; amended Pub. L. 96–347, §1(b), (c)(1), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 97–258, §3(a)(7), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 103–226, §2(b)(1), Mar. 30, 1994, 108 Stat. 112.)

Editorial Notes

References in Text

For definition of Secretary, referred to in subsec. (a), see section 2109 of this title.

Subsecs. (a) and (b) of section 4107 of this title, referred to in subsec. (e), were struck out, and subsecs. (c) and (d) of section 4107 were redesignated (a) and (b), respectively, by Pub. L. 103–226, §2(a)(5)(B), Mar. 30, 1994, 108 Stat. 112. Subsequently, section 4107 was amended generally by Pub. L. 107–296, title XIII, §1331(a), Nov. 25, 2002, 116 Stat. 2298.

Amendments

1994—Subsec. (e). Pub. L. 103–226 substituted "4105," for "4105(a),".

1982—Subsec. (d). Pub. L. 97–258 substituted "section 3324(a) and (b)" for "section 529".

1980—Subsec. (a). Pub. L. 96–347, §1(b), substituted "Secretary" for "Secretary of Transportation".

Subsec. (c)(1). Pub. L. 96–347, §1(c)(1), substituted "in the Executive agency in which the controller is employed" for "in the Department of Transportation".

Statutory Notes and Related Subsidiaries

Effective Date of 1994 Amendment

Pub. L. 103–226, §2(c), Mar. 30, 1994, 108 Stat. 112, provided that: "The amendments made by this section [amending this section and sections 4101, 4103, 4105, 4107, 4108, 4113, and 4118 of this title and repealing sections 4106 and 4114 of this title] shall become effective on the date of enactment of this Act [Mar. 30, 1994]."

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date

Pub. L. 92–297, §10, May 16, 1972, 86 Stat. 145, provided that: "This Act [enacting this subchapter and section 2109 of this title, amending sections 3307, 8332, 8334 to 8336, 8339, 8341, 8344 of this title, enacting provisions set out as notes under this section and section 8335 of this title, and repealing provisions set out as a note under section 3307 of this title] shall become effective at the beginning of the ninetieth day after the date of enactment of this Act [May 16, 1972]."

Report to Congress

Pub. L. 92–297, §9, May 16, 1972, 86 Stat. 145, directed the Secretary of Transportation to report to Congress no later than 5 years after May 16, 1972, concerning his operations under the amendments made by Pub. L. 92–297, including a detailed statement of the effectiveness of Pub. L. 92–297 in meeting the needs of the Air Traffic Controller career program and of the air traffic control system plus recommendations for the management of the program or the system.

¹ See References in Text note below.

§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.

(Added Pub. L. 92–297, §3(a), May 16, 1972, 86 Stat. 142; amended Pub. L. 96–347, §1(b), Sept. 12, 1980, 94 Stat. 1150.)

Editorial Notes

References in Text

For definition of Secretary, referred to in text, see section 2109 of this title.

Amendments

1980—Pub. L. 96–347 in provisions preceding par. (1) substituted "Secretary determines" for "Secretary of Transportation determines".

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date

Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

§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.

(Added Pub. L. 92–297, §3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 95–454, title IX, §906(a)(6), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 96–347, §1(b), (c)(2), (3), Sept. 12, 1980, 94 Stat. 1150.)

Editorial Notes

References in Text

For definition of Secretary, referred to in text, see section 2109 of this title.

Amendments

1980—Subsec. (a). Pub. L. 96–347, §1(b), substituted "Secretary under" for "Secretary of Transportation under".

Subsec. (b)(2). Pub. L. 96–347, §1(c)(2), substituted "the Executive agency in which the controller is employed" for "the Department of Transportation".

Subsec. (d). Pub. L. 96–347, §1(c)(3), substituted "within the Executive agency in which such controller is employed" for "within the Department of Transportation".

1978—Subsec. (b)(3). Pub. L. 95–454 substituted "Merit Systems Protection Board" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date

Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

§3384. Regulations

The Secretary is authorized to issue regulations to carry out the provisions of this subchapter.

(Added Pub. L. 92–297, §3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 96–347, §1(b), Sept. 12, 1980, 94 Stat. 1150.)

Editorial Notes

References in Text

For definition of Secretary, referred to in text, see section 2109 of this title.

Amendments

1980—Pub. L. 96–347 substituted "Secretary" for "Secretary of Transportation".

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date

Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

§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.

(Added Pub. L. 92–297, §3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 96–347, §1(b), Sept. 12, 1980, 94 Stat. 1150.)

Editorial Notes

References in Text

For definition of Secretary, referred to in text, see section 2109 of this title.

Amendments

1980—Pub. L. 96–347 substituted "Secretary" for "Secretary of Transportation".

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date

Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE

Editorial Notes

Prior Provisions

A prior subchapter VIII, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1056, which related to part-time career employment opportunities, was redesignated as chapter 34 of this title by Pub. L. 95–454, title IX, §906(c)(1)(A), Oct. 13, 1978, 92 Stat. 1226.

§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.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1161.)

Editorial Notes

Prior Provisions

A prior section 3391, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1056, which related to definitions for part-time career employment opportunities, was renumbered as section 3401 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§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.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1161; amended Pub. L. 101–335, §7(a), July 17, 1990, 104 Stat. 325.)

Editorial Notes

References in Text

The Executive Schedule, referred to in subsec. (c), is set out as section 5311 et seq. of this title.

Prior Provisions

A prior section 3392, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1056, which related to the establishment of part-time career employment programs, was renumbered as section 3402 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Amendments

1990—Subsec. (c). Pub. L. 101–335 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 1990 Amendment

Pub. L. 101–335, §7(b)(1), July 17, 1990, 104 Stat. 325, provided that: "The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [July 17, 1990]."

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Election by Persons Previously Appointed; Retroactive Performance Awards

Pub. L. 101–335, §7(b)(2), (3), July 17, 1990, 104 Stat. 325, as amended by Pub. L. 102–378, §7(a), Oct. 2, 1992, 106 Stat. 1359, provided that:

"(2) Election by persons previously appointed.—The Office of Personnel Management shall prescribe regulations (including procedures and deadlines) under which an election under section 3392(c)(2) of title 5, United States Code (as amended by this section) may be made by any individual who—

"(A) on the date of enactment of this Act [July 17, 1990], is serving in a civilian position in the executive branch which—

"(i) is not in the Senior Executive Service; and

"(ii) satisfies section 3392(c)(2)(B) of such title 5 (as so amended);

"(B) was appointed to that position on or after November 1, 1986, and has served continuously in such position since then;

"(C) was a career appointee (within the meaning of section 3132(a)(4) of such title 5) immediately before having been so appointed; and

"(D) was not, based on such individual's appointment to the position described in subparagraph (A), eligible to make an election under section 3392(c) of such title 5 (as then in effect).

An election under this paragraph shall be effective as of the date of appointment to the position described in subparagraph (A).

"(3) Retroactive performance awards.—If an individual elects under paragraph (2) to continue to be subject to performance awards, the head of the agency in which such individual is serving shall determine whether to grant retroactive performance awards for any fiscal years prior to fiscal year 1991 to such individual, and the amount of any such awards, without regard to the provisions of subsection (b) of section 5383 of title 5, United States Code, and subsections (b) and (c) of section 5384 of such title. Before granting an award, the head of the agency shall make a written determination that the individual's performance during the fiscal year for which the award is given was at least fully successful, and shall consider the recommendation of the agency's performance review board with respect to the award. No such award for performance during any fiscal year may be less than 5 percent nor more than 15 percent of the individual's rate of basic pay as of the end of such fiscal year."

[Pub. L. 102–378, §7(b), Oct. 2, 1992, 106 Stat. 1359, provided that: "The amendment made by subsection (a) [enacting section 7(b)(3) of Pub. L. 101–335, set out above] shall be effective as if enacted as a part of section 7 of the Thrift Savings Plan Technical Amendments Act of 1990 [Pub. L. 101–335]."]

§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,,¹ 3592, 3595, 7532, or 7543 of this title.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1161; amended Pub. L. 97–35, title XVII, §1704(c), Aug. 13, 1981, 95 Stat. 758; Pub. L. 98–615, title III, §306(b)(1), Nov. 8, 1984, 98 Stat. 3220; Pub. L. 101–12, §9(b), Apr. 10, 1989, 103 Stat. 35; Pub. L. 101–194, title V, §506(b)(2), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 101–280, §6(d)(1), May 4, 1990, 104 Stat. 160; Pub. L. 107–296, title XIII, §1321(a)(1)(A), Nov. 25, 2002, 116 Stat. 2296; Pub. L. 114–92, div. A, title XI, §1105(c)(2), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, §1106(b)(2)(B), Dec. 27, 2021, 135 Stat. 1950.)

Editorial Notes

Prior Provisions

A prior section 3393, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, which related to limitations concerning part-time career employment opportunities, was renumbered as section 3403 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Amendments

2021—Subsec. (d). Pub. L. 117–81 struck out at end "The preceding sentence shall not apply to any individual covered by section 1599e of title 10."

2015—Subsec. (d). Pub. L. 114–92 inserted at end "The preceding sentence shall not apply to any individual covered by section 1599e of title 10."

2002—Subsec. (g). Pub. L. 107–296 struck out "3393a" after "1215,".

1990—Subsec. (g). Pub. L. 101–280 made technical correction to directory language of Pub. L. 101–194, see 1989 Amendment below.

1989—Subsec. (g). Pub. L. 101–194, as amended by Pub. L. 101–280, inserted "3393a," after "1215,".

Pub. L. 101–12 substituted "1215" for "1207".

1984—Subsec. (b). Pub. L. 98–615 inserted provision referring to commissioned officers of the uniformed services serving on active duty in such agency in provisions preceding par. (1).

1981—Subsec. (g). Pub. L. 97–35 added subsec. (g).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applied as if effective Dec. 31, 2022, to correspond to the effective date of the repeal of section 1599e of Title 10, Armed Forces, to reflect the probable intent of Congress. See Effective Date of Repeal note under section 1599e of Title 10.

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date of 1989 Amendments

Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of this title.

Amendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Effective Date of 1984 Amendment

Pub. L. 98–615, title III, §307, Nov. 8, 1984, 98 Stat. 3220, provided that: "The amendments made by this title [enacting section 3595a of this title, amending this section and sections 3135, 3593 to 3595, 4312, 5383, and 5384 of this title, and enacting provisions set out as a note under section 3131 of this title] shall be effective following the expiration of the 90-day period beginning on the date of enactment of this Act [Nov. 8, 1984], except that the amendments made by section 304 [amending sections 3395, 3595, 7543, and 8336 of this title] shall be effective as of such date of enactment."

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–35 effective June 1, 1981, with certain exceptions and conditions, see section 1704(e) of Pub. L. 97–35, set out as an Effective Date note under section 3595 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Temporary Inapplicability of Certification of Executive Qualifications by Qualification Review Boards of Office of Personnel Management

Pub. L. 115–232, div. A, title XI, §1109, Aug. 13, 2018, 132 Stat. 2010, as amended by Pub. L. 116–283, div. A, title XI, §1118, Jan. 1, 2021, 134 Stat. 3897; Pub. L. 118–31, div. A, title XI, §1118, Dec. 22, 2023, 137 Stat. 433, provided that:

"(a) Temporary Inapplicability.—Notwithstanding section 3393(c) of title 5, United States Code, or any regulations implementing that section, and subject to the provisions of this section, the Secretary of Defense may appoint individuals for service in the Senior Executive Service of the Department of Defense without such individuals being subject to the certification of executive qualifications by a qualification review board of the Office of Personnel Management in connection with such appointment otherwise required by that section.

"(b) Qualifications of Individuals Appointed.—The Secretary shall ensure that individuals appointed under this section possess the necessary qualifications and experience for the position to which appointed.

"(c) Limitation.—The total number of appointments made under this section in any year may not exceed 50 appointments.

"(d) Reports.—

"(1) Initial report.—Not later than one year after the date of the enactment of this Act [Aug. 13, 2018], the Secretary shall submit to the committees of Congress and official specified in paragraph (4) a report on the number and type of appointments made under this section as of the date of the report, including—

"(A) a description of the qualifications of the individuals appointed; and

"(B) data on the time required to appoint the individuals.

"(2) Final report.—Not later than two years after the date of the enactment of this Act, the Secretary shall submit to the committees of Congress and official specified in paragraph (4) a report on the use of the authority in this section. The report shall include the following:

"(A) The number and type of appointments made under this section during the one-year period ending on the date of the report.

"(B) Data on and an assessment whether appointments under the authority in this section reduced the time to hire when compared with the time to hire under the current review system of the Office of Personnel Management.

"(C) An assessment of the utility of the appointment authority and process under this section.

"(D) An assessment whether the appointments made under this section resulted in higher quality new executives for the Senior Executive Service of the Department when compared with the executives produced under the current review system of the Office of Personnel Management.

"(E) Any recommendation for the improvement of the selection and qualification process for the Senior Executive Service of the Department that the Secretary considers necessary in order to attract and hire highly qualified candidates for service in that Senior Executive Service.

"(3) Additional report.—Not later than December 1, 2024, the Secretary shall submit to the committees of Congress specified in paragraph (4) and the Comptroller General of the United States a report on the use of the authority provided in this section. The report shall include the following:

"(A) The number and type of appointments made under this section between August 13, 2018, and the date of the report.

"(B) Data on and an assessment of whether appointments under the authority in this section reduced the time to hire when compared with the time to hire under the review system of the Office of Personnel Management in use as of the date of the report.

"(C) An assessment of the utility of the appointment authority and process under this section.

"(D) An assessment of whether the appointments made under this section resulted in higher quality new executives for the Senior Executive Service of the Department when compared with the executives produced in the Department under the review system in use between August 13, 2013, and August 13, 2018.

"(E) Any recommendation for the improvement of the selection and qualification process for the Senior Executive Service of the Department that the Secretary considers necessary in order to attract and hire highly qualified candidates for service in that Senior Executive Service.

"(4) Committees of congress and official.—The committees of Congress and official specified in this paragraph are—

"(A) the Committee on Armed Services and the Committee on Homeland Security and Governmental Affairs of the Senate;

"(B) the Committee on Armed Services and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives; and

"(C) the Director of the Office of Personnel Management.

"(e) Sunset.—Subsection (a) shall cease to be effective on September 30, 2025."

¹ So in original.

[§3393a. Repealed. Pub. L. 107–296, title XIII, §1321(a)(1)(B), Nov. 25, 2002, 116 Stat. 2296]

Section, added Pub. L. 101–194, title V, §506(a)(1), Nov. 30, 1989, 103 Stat. 1756, related to recertification of career appointees.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal

Repeal effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

§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.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1162.)

Editorial Notes

Prior Provisions

A prior section 3394, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, which related to personnel ceilings, was renumbered as section 3404 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§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.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1163; amended Pub. L. 98–615, title III, §304(a), Nov. 8, 1984, 98 Stat. 3218; Pub. L. 102–175, §3, Dec. 2, 1991, 105 Stat. 1222.)

Editorial Notes

Prior Provisions

A prior section 3395, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, which related to nonapplicability of part-time career employment opportunities program was renumbered as section 3405 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Amendments

1991—Subsec. (e)(1)(B)(ii). Pub. L. 102–175, §3(1), amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: "has the authority to reassign the career appointee."

Subsec. (e)(3). Pub. L. 102–175, §3(2), added par. (3).

1984—Subsec. (a)(2). Pub. L. 98–615 designated existing provisions as subpar. (A), inserted exception relating to subpar. (B), and added subpar. (B).

Statutory Notes and Related Subsidiaries

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–615 effective Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under section 3393 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§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.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1163; amended Pub. L. 102–175, §4, Dec. 2, 1991, 105 Stat. 1223.)

Editorial Notes

Prior Provisions

A prior section 3396, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, which related to issuance of regulations, was renumbered as section 3406 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Amendments

1991—Subsec. (d). Pub. L. 102–175 designated existing provisions as par. (1) and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Federal Procurement Training

Pub. L. 112–239, div. A, title XVI, §1633(a), Jan. 2, 2013, 126 Stat. 2076, provided that: "Programs established for the development of senior executives under section 3396(a) of title 5, United States Code, shall include training with respect to Federal procurement requirements, including contracting requirements under the Small Business Act (15 U.S.C. 631 et seq.)."

§3397. Regulations

The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.

(Added Pub. L. 95–454, title IV, §403(a), Oct. 13, 1978, 92 Stat. 1164.)

Editorial Notes

Prior Provisions

A prior section 3397, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1058, which related to reports, was renumbered as section 3407 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

A prior section 3398, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1058, which related to representation by employee organizations of employees employed on a part-time career employment basis, was renumbered as section 3408 of this title by Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

CHAPTER 34—PART-TIME CAREER EMPLOYMENT OPPORTUNITIES

        

Editorial Notes

Amendments

1995—Pub. L. 104–66, title III, §3001(a)(2), Dec. 21, 1995, 109 Stat. 734, struck out item 3407 "Reports".

1978—Pub. L. 95–437, §3(b), Oct. 10, 1978, 92 Stat. 1058, added items 3391 to 3398, which were renumbered 3401 to 3408 by Pub. L. 95–454, title IX, §906(c)(1)(A), Oct. 13, 1978, 92 Stat. 1226, which section also substituted "CHAPTER 34" for "SUBCHAPTER VIII" in heading.

§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 Virgin Islands Corporation;

(iv) the Federal Bureau of Investigation, Department of Justice;

(v) the Central Intelligence Agency; and

(vi) 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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1056, §3391; renumbered §3401 and amended Pub. L. 95–454, title IX, §906(c)(1)(B), (2)(A), Oct. 13, 1978, 92 Stat. 1226; Pub. L. 97–221, §3, July 23, 1982, 96 Stat. 233; Pub. L. 97–468, title VI, §615(b)(1)(B), Jan. 14, 1983, 96 Stat. 2578; Pub. L. 102–378, §2(15), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 104–201, div. C, title XXXV, §3548(a)(1), Sept. 23, 1996, 110 Stat. 2868.)

Editorial Notes

Amendments

1996—Par. (1). Pub. L. 104–201, which directed amendment of par. (1) by striking cl. (v) and redesignating cls. (vi), (vii), and (viii) as (v), (vi), and (vii), respectively, was executed by striking cl. (iv), relating to the Panama Canal Company, and redesignating cls. (v), (vi), and (vii) as (iv), (v), and (vi), respectively, to reflect the probable intent of Congress, because par. (1) does not contain a cl. (viii) and the amendments were included in a series of conforming amendments relating to the Panama Canal.

1992—Par. (1)(iii). Pub. L. 102–378, which directed the amendment of cl. (iv) by substituting "Virgin Islands" for "Virgin Island", was executed by making the substitution in cl. (iii) to reflect the probable intent of Congress.

1983—Par. (1)(iii) to (viii). Pub. L. 97–468 struck out cl. (iii) which excluded the Alaska Railroad, and redesignated cls. (iv) to (viii) as (iii) to (vii), respectively.

1982—Par. (2). Pub. L. 97–221 inserted "(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)" after "week".

1978—Pub. L. 95–454, §906(c)(1)(B), renumbered section 3391 of this title as this section.

Pub. L. 95–454, §906(c)(2)(A), substituted "chapter" for "subchapter".

Statutory Notes and Related Subsidiaries

Effective Date of 1983 Amendment

Amendment by Pub. L. 97–468 effective on date of transfer of Alaska Railroad to the State [Jan. 5, 1985], pursuant to section 1203 of Title 45, Railroads, see section 615(b) of Pub. L. 97–468.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Short Title of 1978 Amendment

Section 1 of Pub. L. 95–437 provided that: "This Act [enacting this chapter, amending sections 8347, 8716, 8906, and 8913 of this title, and enacting provisions set out as notes under this section and sections 3407 and 8906 of this title] may be cited as the 'Federal Employees Part-Time Career Employment Act of 1978'."

Congressional Findings and Purpose

Pub. L. 95–437, §2, Oct. 10, 1978, 92 Stat. 1055, provided that:

"(a) The Congress finds that—

"(1) many individuals in our society possess great productive potential which goes unused because they cannot meet the requirements of a standard workweek; and

"(2) part-time permanent employment—

"(A) provides older individuals with a gradual transition into retirement;

"(B) provides employment opportunities to handicapped individuals or others who require a reduced workweek;

"(C) provides parents opportunities to balance family responsibilities with the need for additional income;

"(D) benefits students who must finance their own education or vocational training;

"(E) benefits the Government, as an employer, by increasing productivity and job satisfaction, while lowering turnover rates and absenteeism, offering management more flexibility in meeting work requirements, and filling shortages in various occupations; and

"(F) benefits society by offering a needed alternative for those individuals who require or prefer shorter hours (despite the reduced income), thus increasing jobs available to reduce unemployment while retaining the skills of individuals who have training and experience.

"(b) The purpose of this Act [enacting this chapter, amending sections 8347, 8716, 8906, and 8913 of this title, and enacting provisions set out as notes under this section and sections 3407 and 8906 of this title] is to provide increased part-time career employment opportunities throughout the Federal Government."

§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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1056, §3392; renumbered §3402 and amended Pub. L. 95–454, title IX, §906(c)(1)(B), (2)(B), Oct. 13, 1978, 92 Stat. 1226.)

Editorial Notes

Amendments

1978—Pub. L. 95–454, §906(c)(1)(B), renumbered section 3392 of this title as this section.

Subsec. (a)(1)(B). Pub. L. 95–454, §906(c)(2)(B)(i), substituted "3403" for "3393".

Subsec. (b)(1). Pub. L. 95–454, §906(c)(2)(B)(ii), substituted "Office of Personnel Management" for "Civil Service Commission" and "chapter" for "subchapter".

Subsec. (b)(2). Pub. L. 95–454, §906(c)(2)(B)(iii), substituted "Office" for "Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, §3393; renumbered §3403, Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.)

Editorial Notes

Amendments

1978—Pub. L. 95–454 renumbered section 3393 of this title as this section.

§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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, §3394; renumbered §3404, Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.)

Editorial Notes

Amendments

1978—Pub. L. 95–454 renumbered section 3394 of this title as this section.

§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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, §3395; renumbered §3405 and amended Pub. L. 95–454, title IX, §906(c)(1)(B), (2)(C), Oct. 13, 1978, 92 Stat. 1226, 1227; Pub. L. 101–509, title V, §529 [title I, §101(b)(9)(D)], Nov. 5, 1990, 104 Stat. 1427, 1441.)

Editorial Notes

References in Text

The date of enactment of this chapter, referred to in subsec. (a), is the date of the enactment of Pub. L. 95–437, which was approved Oct. 10, 1978.

Amendments

1990—Subsec. (b). Pub. L. 101–509 substituted "payable under section 5376" for "fixed for GS–16 of the General Schedule".

1978—Pub. L. 95–454, §906(c)(1)(B), renumbered section 3395 of this title as this section.

Subsecs. (a), (b). Pub. L. 95–454, §906(c)(2)(C), substituted "chapter" for "subchapter" wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1057, §3396; renumbered §3406 and amended Pub. L. 95–454, title IX, §906(c)(1)(B), (2)(C), Oct. 13, 1978, 92 Stat. 1226, 1227.)

Editorial Notes

References in Text

The date of the enactment of this chapter, referred to in text, is the date of the enactment of Pub. L. 95–437, which was approved Oct. 10, 1978.

Amendments

1978—Pub. L. 95–453, §901(c)(1)(B), renumbered section 3396 of this title as this section.

Pub. L. 95–454, §906(c)(2)(C), substituted "chapter" for "subchapter" wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

[§3407. Repealed. Pub. L. 104–66, title III, §3001(a)(1), Dec. 21, 1995, 109 Stat. 733]

Section, added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1058, §3397; renumbered §3407 and amended Pub. L. 95–454, title IX, §906(c)(1)(B), (2)(D), (E), Oct. 13, 1978, 92 Stat. 1226, 1227, related to reports.

§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.

(Added Pub. L. 95–437, §3(a), Oct. 10, 1978, 92 Stat. 1058, §3398; renumbered §3408, Pub. L. 95–454, title IX, §906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.)

Editorial Notes

Amendments

1978—Pub. L. 95–454 renumbered section 3398 of this title as this section.

CHAPTER 35—RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE PAYMENTS, RESTORATION, AND REEMPLOYMENT

SUBCHAPTER I—RETENTION PREFERENCE

        

SUBCHAPTER II—VOLUNTARY SEPARATION INCENTIVE PAYMENTS

        

SUBCHAPTER III—REINSTATEMENT OR RESTORATION AFTER SUSPENSION OR REMOVAL FOR NATIONAL SECURITY

        

SUBCHAPTER IV—REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL ORGANIZATION

        

SUBCHAPTER V—REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR EXECUTIVE SERVICE

        

SUBCHAPTER VI—REEMPLOYMENT FOLLOWING LIMITED APPOINTMENT IN THE FOREIGN SERVICE

        

SUBCHAPTER VII—RETENTION OF RETIRED SPECIALIZED EMPLOYEES AT THE FEDERAL BUREAU OF INVESTIGATION

        

        

Editorial Notes

Amendments

2004—Pub. L. 108–447, div. B, title I, §114(b), Dec. 8, 2004, 118 Stat. 2869, and Pub. L. 108–458, title II, §2004(b), Dec. 17, 2004, 118 Stat. 3704, amended analysis identically, adding item for subchapter VII.

Pub. L. 108–458, title II, §2004(b), Dec. 17, 2004, 118 Stat. 3704, added item 3598, set out second.

Pub. L. 108–447, div. B, title I, §114(b), Dec. 8, 2004, 118 Stat. 2869, added item 3598, set out first.

2002—Pub. L. 107–296, title XIII, §1313(a)(1)(B), Nov. 25, 2002, 116 Stat. 2294, substituted "RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE PAYMENTS, RESTORATION, AND REEMPLOYMENT" for "RETENTION PREFERENCE, RESTORATION, AND REEMPLOYMENT" in chapter heading and added item for subchapter II and items 3521 to 3525.

1994—Pub. L. 103–353, §2(b)(2)(C), Oct. 13, 1994, 108 Stat. 3169, struck out item for subchapter II "RESTORATION AFTER ACTIVE DUTY OR TRAINING DUTY" and item 3551 "Restoration; Reserves and National Guardsmen".

1984—Pub. L. 98–615, title III, §306(c)(2), Nov. 8, 1984, 98 Stat. 3220, added item 3595a.

1981—Pub. L. 97–35, title XVII, §1704(a)(2), Aug. 13, 1981, 95 Stat. 757, redesignated item 3595 as 3596, and added item 3595.

1980—Pub. L. 96–465, title II, §2301(b), Oct. 17, 1980, 94 Stat. 2164, added item for subchapter VI and item 3597.

1978—Pub. L. 95–454, title IV, §404(c), Oct. 13, 1978, 92 Stat. 1167, added item for subchapter V and items 3591 to 3595.

¹ So in original. Two sections "3598" have been enacted.

² So in original. Does not conform to section catchline.

SUBCHAPTER I—RETENTION PREFERENCE

§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 1101 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 periods 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 428; Pub. L. 94–183, §2(8), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IV, §404(a), Oct. 13, 1978, 92 Stat. 1165; Pub. L. 100–325, §2(e), May 30, 1988, 102 Stat. 581; Pub. L. 102–83, §5(c)(2), Aug. 6, 1991, 105 Stat. 406.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)(1), (2)	5 U.S.C. 3101 (as applicable to 5 U.S.C. 861).	Aug. 19, 1964, Pub. L. 88–448, §101 (as applicable to §202), 78 Stat. 484.
(a)(3)	5 U.S.C. 861(b).	June 27, 1944, ch. 287, §12(b); added Aug. 19, 1964, Pub. L. 88–448, §202(4) ("(b)"), 78 Stat. 486.

In subsection (a), the definitions of "uniformed services" and "armed forces" are omitted as unnecessary in view of the definitions in section 2101. The definition of "civilian office" is omitted as unnecessary as subsection (b) of this section states the application of this subchapter.

In subsection (a)(3), the words "Notwithstanding any other provision of this Act" are omitted as unnecessary. The words "preference eligible employee" are coextensive with and substituted for "employee * * * included under section 2 of this Act" in view of the definition of preference eligible in section 2108. In paragraph (3)(C), the words "on November 30, 1964, he was employed in a position to which this subchapter applies and thereafter he continued to be so employed" are substituted for "immediately prior to the effective date of this subsection, he was employed in a civilian office to which this Act applies and, on and after such date, he continues to be employed in any such office".

Subsection (b) is supplied on authority of sections 2, 12, and 20 of the Act of June 27, 1944, ch. 287, 58 Stat. 387, 391, which are carried into this title.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preference to the report.

Editorial Notes

Amendments

1991—Subsec. (a)(3)(A)(ii). Pub. L. 102–83 substituted reference to section 1101 of title 38 for reference to section 301 of title 38.

1988—Subsec. (b). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

1978—Subsec. (b). Pub. L. 95–454 inserted reference to a member of Senior Executive Service.

1975—Subsec. (b). Pub. L. 94–183 struck out ", except an employee whose appointment is made under section 3311 of title 39" after "or made with the advice and consent of, the Senate".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§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; ¹ 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 1998.¹

(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 1998.¹

(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, 2018.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 428; Pub. L. 90–367, §3, June 29, 1968, 82 Stat. 278; Pub. L. 90–623, §1(23), Oct. 22, 1968, 82 Stat. 1313; Pub. L. 95–454, title III, §307(e), title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1149, 1224; Pub. L. 99–251, title III, §306(a), Feb. 27, 1986, 100 Stat. 27; Pub. L. 101–508, title VII, §7202(c), Nov. 5, 1990, 104 Stat. 1388–335; Pub. L. 102–484, div. D, title XLIV, §4433(a)(1), Oct. 23, 1992, 106 Stat. 2721; Pub. L. 104–106, div. A, title X, §§1034, 1043(d)(1), Feb. 10, 1996, 110 Stat. 430, 438; Pub. L. 104–201, div. A, title XVI, §1609, Sept. 23, 1996, 110 Stat. 2738; Pub. L. 105–277, div. A, §101(f) [title VIII, §405(d)(1), (f)(1)], Oct. 21, 1998, 112 Stat. 2681–337, 2681-417, 2681-429; Pub. L. 106–398, §1 [[div. A], title XI, §1103], Oct. 30, 2000, 114 Stat. 1654, 1654A-311; Pub. L. 109–163, div. A, title XI, §1102, Jan. 6, 2006, 119 Stat. 3447; Pub. L. 110–417, [div. A], title XI, §1105, Oct. 14, 2008, 122 Stat. 4617; Pub. L. 113–66, div. A, title XI, §1103, Dec. 26, 2013, 127 Stat. 885.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 861(a) (less 2d and 3d provisos), (c).	June 27, 1944, ch. 287, §12 (less 2d and 3d provisos), 58 Stat. 390. Aug. 19, 1964, Pub. L. 88–448, §202 (1)–(3), (4) ("(c)"), 78 78 Stat. 486.
(b)	5 U.S.C. 861(a) (2d proviso).	June 27, 1944, ch. 287, §12 (2d proviso), 58 Stat. 390.

In subsection (a), the words "reduction in force" are substituted for "reduction in personnel". The words "in any civilian service of any Federal agency" are omitted as unnecessary because of the application stated in section 3501. In the second sentence, the word "total" in the phrase "length of service" is omitted for consistency with paragraph (3), and the words "subject to subsection (c) of this section" are omitted as unnecessary in view of the supplied distinction between a competing employee who is not a retired member of a uniformed service and such an employee who is a retired member of a uniformed service. In paragraph (A), the words "total length of time in active service" are substituted for "length of time spent in active service" for consistency with paragraph (B)(ii).

In subsections (a) and (b), the references to "performance" ratings and ratings of "satisfactory" are added on authority of former section 2005, which is carried into section 4304.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in Text

Section 8(b) of the Soil Conservation and Allotment Act, referred to in subsec. (a)(C)(i), probably means section 8(b) of the Soil Conservation and Domestic Allotment Act, which is classified to section 590h(b) of Title 16, Conservation.

Section 10(b) of the Agricultural Adjustment Act, referred to in subsec. (a)(C)(i), is classified to section 610(b) of Title 7, Agriculture.

The Workforce Investment Act of 1998, referred to in subsec. (d)(3), (4), is Pub. L. 105–220, Aug. 7, 1998, 112 Stat. 936, and was repealed by Pub. L. 113–128, title V, §§506, 511(a), July 22, 2014, 128 Stat. 1703, 1705, effective July 1, 2015. Title I of the Act was classified principally to former chapter 30 (former §2801 et seq.) of Title 29, Labor. Section 134(a)(2)(A) of the Act was classified to former section 2864(a)(2)(A) of Title 29. Pursuant to section 3361(a) of Title 29, references to a provision of the Workforce Investment Act of 1998 are deemed to refer to the corresponding provision of the Workforce Innovation and Opportunity Act, Pub. L. 113–128, July 22, 2014, 128 Stat. 1425, effective July 1, 2015. For complete classification of this Act to the Code, see Tables.

Amendments

2013—Subsec. (f)(5). Pub. L. 113–66 substituted "September 30, 2018" for "September 30, 2014".

2008—Subsec. (f)(5). Pub. L. 110–417 substituted "September 30, 2014" for "September 30, 2010".

2006—Subsec. (f)(5). Pub. L. 109–163 substituted "September 30, 2010" for "September 30, 2005".

2000—Subsec. (f)(5). Pub. L. 106–398 substituted "September 30, 2005" for "September 30, 2001".

1998—Subsec. (d)(3)(A)(i). Pub. L. 105–277, §101(f) [title VIII, §405(f)(1)(A)(i)], added cl. (i) and struck out former cl. (i) which read as follows: "the appropriate State dislocated worker unit or office (referred to in section 311(b)(2) of the Job Training Partnership Act), or 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".

Pub. L. 105–277, §101(f) [title VIII, §405(d)(1)(A)(i)], added cl. (i) and struck out former cl. (i) which read as follows: "the appropriate State dislocated worker unit or units (referred to in section 311(b)(2) of the Job Training Partnership Act); and".

Subsec. (d)(3)(B)(iii). Pub. L. 105–277, §101(f) [title VIII, §405(f)(1)(A)(ii)], struck out "under the Job Training Partnership Act or" before "under title I of".

Pub. L. 105–277, §101(f) [title VIII, §405(d)(1)(A)(ii)], substituted "other services under the Job Training Partnership Act or under title I of the Workforce Investment Act of 1998" for "other services under the Job Training Partnership Act".

Subsec. (d)(4). Pub. L. 105–277, §101(f) [title VIII, §405(f)(1)(B)], struck out "the Job Training Partnership Act or" before "title I of".

Pub. L. 105–277, §101(f) [title VIII, §405(d)(1)(B)], substituted "Secretary of Labor on matters relating to the Job Training Partnership Act or title I of the Workforce Investment Act of 1998" for "Secretary of Labor on matters relating to the Job Training Partnership Act".

1996—Subsec. (a)(C)(ii). Pub. L. 104–106, §1043(d)(1), substituted "January 1, 1966" for "January 1, 1987".

Subsec. (f). Pub. L. 104–201 amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows:

"(f)(1) The Secretary of Defense or the Secretary of a military department may—

"(A) release in a reduction in force an employee who volunteers for the release even though the employee is not otherwise subject to release in the reduction in force under the criteria applicable under the other provisions of this section; and

"(B) for each employee voluntarily released in the reduction in force under subparagraph (A), retain an employee in a similar position who would otherwise be released in the reduction in force under such criteria.

"(2) A voluntary release of an employee in a reduction in force pursuant to paragraph (1) shall be treated as an involuntary release in the reduction in force.

"(3) An employee with critical knowledge and skills (as defined by the Secretary concerned) may not participate in a voluntary release under paragraph (1) 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) The authority under paragraph (1) may not be exercised after September 30, 1996."

Pub. L. 104–106, §1034, added subsec. (f).

1992—Subsecs. (d), (e). Pub. L. 102–484 added subsecs. (d) and (e).

1990—Subsec. (a)(C). Pub. L. 101–508 amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: "is entitled to credit for service rendered as an employee of a county committee established pursuant to section 590h(b) of title 16, or of a committee or an association of producers described in section 610(b) of title 7."

1986—Subsec. (a)(C). Pub. L. 99–251 struck out "who is an employee in or under the Department of Agriculture" before "is entitled to credit".

1978—Subsec. (a). Pub. L. 95–454, §906(a)(2), substituted "Office of Personnel Management" for "Civil Service Commission".

Subsec. (b). Pub. L. 95–454, §307(e), substituted provisions relating to retention of a preference eligible with a compensable service-connected disability of 30 percent or more, for provisions relating to retention of preference eligible employees on the basis of ratings.

Subsec. (c). Pub. L. 95–454, §307(e), added subsec. (c).

1968—Subsec. (a). Pub. L. 90–623 made minor changes in form and punctuation in subpars. (A) and (B), and, in subpar. (C), substituted "section 590h(b) of title 16" and "section 610(b) of title 7" for "section 8(b) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b))" and "section 10(b) of the Agricultural Adjustment Act of May 12, 1933 (48 Stat. 37)" respectively.

Subsec. (a)(C). Pub. L. 90–367 added subsec. (a)(C).

Statutory Notes and Related Subsidiaries

Effective Date of 1998 Amendment

Pub. L. 105–277, div. A, §101(f) [title VIII, §405(g)], Oct. 21, 1998, 112 Stat. 2681–337, 2681-434, as amended by Pub. L. 106–400, §2, Oct. 30, 2000, 114 Stat. 1675, provided that:

"(1) Immediately effective amendments.—The amendments made by subsections (a) through (d) [amending this section and sections 2014, 2015, and 2026 of Title 7, Agriculture, sections 1255a and 1613 of Title 8, Aliens and Nationality, sections 636, 1022a, 3116, and 3151 of Title 15, Commerce and Trade, section 79l of Title 16, Conservation, section 665 of Title 18, Crimes and Criminal Procedure, sections 2296 and 2311 of Title 19, Customs Duties, sections 1070d–2, 1087vv, 3443, 5934, 5938, 6365, 6434, 6453, and 6455 of Title 20, Education, section 5855 of Title 22, Foreign Relations and Intercourse, section 2102 of Title 29, Labor, section 6703 of Title 31, Money and Finance, sections 4102A, 4103A, and 4213 of Title 38, Veterans' Benefits, and sections 603, 1437u, 1474, 3013, 3056, 3056a, 3056h, 3796ee, 4368a, 4953, 4959, 6103, 6864, 6873, 7274h, 9806, 11302, 12637, 12653c, 12655m, 12899c, 12899e, and 13823 of Title 42, The Public Health and Welfare, amending provisions set out as notes under sections 1183a and 1522 of Title 8, sections 1143, 2391, 2501, 2701, and 2687 of Title 10, Armed Forces, section 3304 of Title 26, Internal Revenue Code, section 1721 of Title 29, and section 4101 of Title 38, and repealing provisions set out as notes under sections 1501 and 1551 of Title 29] shall take effect on the date of the enactment of this Act [Oct. 21, 1998].

"(2) Subsequently effective amendments.—

"(A) Mckinney-vento homeless assistance act.—The amendments made by subsection (e) shall take effect on July 1, 1999.

"(B) Job training partnership act.—The amendments made by subsection (f) [amending this section and sections 2014, 2015, and 2026 of Title 7, Agriculture, sections 1255a and 1613 of Title 8, Aliens and Nationality, sections 636 and 3116 of Title 15, Commerce and Trade, sections 2296 and 2311 of Title 19, Customs Duties, sections 1070d–2, 1087vv, 6365, 6434, 6453, and 6455 of Title 20, Education, section 2102 of Title 29, Labor, section 6703 of Title 31, Money and Finance, sections 4102A, 4103A, and 4213 of Title 38, Veterans' Benefits, and sections 603, 1437u, 1474, 3013, 3056, 3056a, 3056h, 3796ee, 4368a, 4953, 4959, 6864, 6873, 7274h, 9806, 11302, 12653c, 12655m, 12899c, and 13823 of Title 42, The Public Health and Welfare, and amending provisions set out as notes under sections 1183a and 1522 of Title 8, sections 1143, 2501, 2687, and 2701 of Title 10, Armed Forces, section 3304 of Title 26, Internal Revenue Code, section 1721 of Title 29, and section 4101 of Title 38] shall take effect on July 1, 2000."

Effective Date of 1996 Amendment

Pub. L. 104–106, div. A, title X, §1043(d)(2), Feb. 10, 1996, 110 Stat. 438, provided that: "Notwithstanding any provision of subsection (c) [set out as a note under section 8347 of this title], the amendment made by paragraph (1) [amending this section] shall—

"(A) take effect on the date of the enactment of this Act [Feb. 10, 1996]; and

"(B) apply with respect to any reduction in force carried out on or after such date."

Effective Date of 1992 Amendment

Pub. L. 102–484, div. D, title XLIV, §4433(a)(2), Oct. 23, 1992, 106 Stat. 2722, provided that: "The amendment made by paragraph (1) [amending this section] shall apply with respect to any personnel action taking effect on or after the last day of the 90-day period beginning on the date of enactment of this Act [Oct. 23, 1992]."

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–508 applicable with respect to any individual who, on or after Jan. 1, 1987, moves from employment in nonappropriated fund instrumentality of Department of Defense or Coast Guard, that is described in section 2105(c) of this title, to employment in Department or Coast Guard, that is not described in section 2105(c), or who moves from employment in Department or Coast Guard, that is not described in section 2105(c), to employment in nonappropriated fund instrumentality of Department or Coast Guard, that is described in section 2105(c), see section 7202(m)(1) of Pub. L. 101–508, set out as a note under section 2105 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

Regulations

For provisions relating to promulgation of regulations necessary to carry out amendment by section 1043(d)(1) of Pub. L. 104–106, see section 1043(b) of Pub. L. 104–106, set out as a Regulations; Effective Date of 1996 Amendment note under section 8347 of this title.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Interagency Placement Program for Federal Employees Affected by Reductions in Force

Pub. L. 103–337, div. A, title X, §1066, Oct. 5, 1994, 108 Stat. 2850, as amended by Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814, provided that:

"(a) Study and Report.—(1) The Director of the Office of Personnel Management shall conduct a study on the feasibility of establishing a mandatory interagency placement program for Federal employees affected by reductions in force.

"(2) For purposes of paragraph (1), an interagency placement program is a program that provides a system to require the offering of a position in an agency to an employee of another agency affected by a reduction in force if—

"(A) the position cannot be filled through a placement program of the agency in which the position is located;

"(B) the employee to whom the offer is made is qualified for the offered position; and

"(C) the geographic location of the offered position is within the commuting area of—

"(i) the residence of the employee; or

"(ii) the employee's present or last-held position.

"(3) The Director shall carry out this subsection in consultation with the Secretary of Defense.

"(4) The Director shall seek comments from the heads of all appropriate Federal agencies in conducting the study required by paragraph (1).

"(5) Not later than six months after the date of the enactment of this Act [Oct. 5, 1994], the Director shall submit to Congress a report on the results of the study required by paragraph (1) and on any action taken by the Director under subsection (b).

"(b) Agreements To Establish Interagency Placement Program.—(1) The Director may establish a Government-wide interagency placement program for Federal employees affected by reductions in force if, during the 6-month period beginning on the date of the enactment of this Act [Oct. 5, 1994], the Director, in consultation with the Secretary of Defense, determines that such a program is feasible. To carry out the program, the Director may enter into an agreement with the head of each agency that agrees to participate in the program. If the Director establishes a program under this subsection, it is not necessary that the program be an interagency placement program within the meaning of subsection (a)(2).

"(2) If the Director establishes a program pursuant to paragraph (1), the report required by subsection (a)(5) shall identify each agency that does not agree to participate in the program and the reasons of the head of that agency for not agreeing to participate.

"(c) Definitions.—For purposes of this section:

"(1) The term 'agency' means an Executive agency as defined in section 105 of title 5, United States Code, except that such term does not include the Government Accountability Office.

"(2) The term 'Federal employees affected by reductions in force' means Federal employees who are separated, or are scheduled to be separated, from service under a reduction in force pursuant to—

"(A) regulations prescribed under section 3502 of title 5, United States Code; or

"(B) procedures established under section 3595 of such title."

Special Rule on Application of Subsections (d) and (e)

Pub. L. 102–484, div. D, title XLIV, §4433(b), Oct. 23, 1992, 106 Stat. 2722, as amended by Pub. L. 103–337, div. A, title III, §341(a), Oct. 5, 1994, 108 Stat. 2720, provided that:

"(1) The provisions of section 3502(d) and (e) of title 5, United States Code (as added by subsection (a)) shall apply to employees of the Department of Defense according to their terms, except that, with respect to any reduction in force within that agency that would involve the separation of a significant number of employees (as determined under paragraph (1)(B) of such section 3502(d)), any reference in such section 3502(d) to '60 days' shall, in the case of the employees described in paragraph (2), be deemed to read '120 days'.

"(2) The employees described in this paragraph are those employees of the Department of Defense who are to be separated, due to a reduction in force described in paragraph (1), effective on or after the last day of the 90-day period referred to in subsection (a)(2) [see Effective Date of 1992 Amendment note above] and before February 1, 2000.

"(3) Nothing in this subsection shall prevent the application of the amendment made by subsection (a) [amending this section] with respect to an employee if—

"(A) the preceding paragraphs of this subsection do not apply with respect to such employee; and

"(B) the amendment made by subsection (a) would otherwise apply with respect to such employee.

"(4) The Secretary of Defense shall prescribe such regulations as may be necessary to carry out this subsection."

Indian Preference Laws Applicable to Bureau of Indian Affairs and Indian Health Service Positions

Applicability of Indian preference laws to Bureau of Indian Affairs and Indian Health Service positions for purposes of reduction-in-force procedures under subsec. (a) of this section, see section 5117(a) of Title 25, Indians.

Executive Documents

Ex. Ord. No. 12828. Delegation of Certain Personnel Management Authorities

Ex. Ord. No. 12828, Jan. 5, 1993, 58 F.R. 2965, as amended by Ex. Ord. No. 13415, §2(b), Dec. 1, 2006, 71 F.R. 70641, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3 of the United States Code and sections 3502(e), 4505a(e), and 5377(i)(2) of title 5 of the United States Code, it is hereby ordered as follows:

Section 1. The Office of Personnel Management is designated and empowered to exercise, without the approval, ratification, or other action of the President, the following:

(1) The authority of the President under 5 U.S.C. 3502(e), as added by section 4433 of Public Law 102–484, to shorten the period of advance notice otherwise required by law with respect to reductions in force.

(2) The authority of the President under 5 U.S.C. 4505a(e), as added by section 2(19) of Public Law 102–378, to permit performance-based cash awards to be paid to categories of employees who would not otherwise be eligible.

Sec. 2. This order shall be effective immediately.

¹ See References in Text note below.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 429; Pub. L. 95–454, title III, §307(f), Oct. 13, 1978, 92 Stat. 1149; Pub. L. 96–54, §2(a)(18), Aug. 14, 1979, 93 Stat. 382.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 861(a) (3d proviso).	June 27, 1944, ch. 287, §12 (3d proviso), 58 Stat. 390.

In subsection (a), the words "a function" are substituted for "any or all of the functions". The word "receiving" is substituted for "replacing" in the phrase "receiving agency" to avoid confusion with subsection (b).

In subsections (a) and (b), the word "first" in the phrase "shall first be transferred" is omitted as redundant in view of the subsequent limitation imposed by the words following "before". The words "make an appointment from another source to that position" are substituted for "appoint additional employees from any other source for such position".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1979—Subsecs. (a), (b). Pub. L. 96–54 substituted "competing employee" for "preference eligible employed".

1978—Subsecs. (a), (b). Pub. L. 95–454 which directed the substitution of "competing employee" for "preference eligible employee" was impossible to execute literally because the text contained reference to "preference eligible employed". See 1979 Amendment note above.

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 429; Pub. L. 95–454, title III, §307(g), title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1149, 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 854 (1st 2 sentences, so much as relates to retention).	June 27, 1944, ch. 287, §5 (1st 2 sentences, so much as relates to retention), 58 Stat. 388.

The words "in the competitive service, an Executive agency, or the government of the District of Columbia" are added on authority of former sections 851, 858, and 869 which are carried into this title. The words "preference eligible" are substituted for "veteran".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 designated existing provisions as subsec. (a), substituted "Office of Personnel Management" for "Civil Service Commission" and "Office" for "Commission", and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

SUBCHAPTER II—VOLUNTARY SEPARATION INCENTIVE PAYMENTS

Editorial Notes

Prior Provisions

A prior subchapter II of this chapter consisting of section 3551, related to restoration of positions of Federal and District of Columbia employees upon release from duty in Reserves or National Guard, prior to repeal by Pub. L. 103–353, §§2(b)(2)(B), 8, Oct. 13, 1994, 108 Stat. 3169, 3175, effective with respect to reemployments initiated on or after first day after 60-day period beginning Oct. 13, 1994, with transition rules.

§3521. Definitions

In this subchapter, the term—

(1) "agency" means an Executive agency as defined under section 105 (other than the Government Accountability Office); and

(2) "employee"—

(A) means an employee as defined under section 2105 employed by an agency and an individual employed by a county committee established under section 8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)(5)) who—

(i) is serving under an appointment without time limitation; and

(ii) has been currently employed for a continuous period of at least 3 years; and

(B) shall not include—

(i) a reemployed annuitant under subchapter III of chapter 83 or 84 or another retirement system for employees of the Government;

(ii) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under subchapter III of chapter 83 or 84 or another retirement system for employees of the Government;

(iii) an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance;

(iv) an employee who has previously received any voluntary separation incentive payment from the Federal Government under this subchapter or any other authority;

(v) an employee covered by statutory reemployment rights who is on transfer employment with another organization; or

(vi) any employee who—

(I) during the 36-month period preceding the date of separation of that employee, performed service for which a student loan repayment benefit was or is to be paid under section 5379;

(II) during the 24-month period preceding the date of separation of that employee, performed service for which a recruitment or relocation bonus was or is to be paid under section 5753; or

(III) during the 12-month period preceding the date of separation of that employee, performed service for which a retention bonus was or is to be paid under section 5754.

(Added Pub. L. 107–296, title XIII, §1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2291; amended Pub. L. 112–74, div. G, title I, §1401(b), Dec. 23, 2011, 125 Stat. 1134.)

Editorial Notes

Amendments

2011—Par. (1). Pub. L. 112–74 substituted "section 105 (other than the Government Accountability Office)" for "section 105".

Statutory Notes and Related Subsidiaries

Effective Date of 2011 Amendment

Amendment by Pub. L. 112–74 applicable to voluntary separation incentive payments made during fiscal year 2012 or any succeeding fiscal year, see section 1401(c) of Pub. L. 112–74, set out as a note under section 4505 of Title 2, The Congress.

Effective Date

Pub. L. 107–296, title XIII, §1313(a)(4), Nov. 25, 2002, 116 Stat. 2294, provided that: "This subsection [enacting this subchapter and provisions set out as notes under this section] shall take effect 60 days after the date of enactment of this Act [Nov. 25, 2002]."

Smithsonian Institution Employees

Pub. L. 108–72, §5, Aug. 15, 2003, 117 Stat. 889, provided that: "The Secretary of the Smithsonian Institution may establish a program for making voluntary separation incentive payments for employees of the Smithsonian Institution which is substantially similar to the program established under subchapter II of chapter 35 of title 5, United States Code (as added by section 1313(a) of the Homeland Security Act of 2002 [Pub. L. 107–296])."

Judicial Branch Employees

Pub. L. 107–296, title XIII, §1313(a)(2), Nov. 25, 2002, 116 Stat. 2294, provided that: "The Director of the Administrative Office of the United States Courts may, by regulation, establish a program substantially similar to the program established under paragraph (1) [enacting this subchapter] for individuals serving in the judicial branch."

Continuation of Other Authority

Pub. L. 107–296, title XIII, §1313(a)(3), Nov. 25, 2002, 116 Stat. 2294, provided that: "Any agency exercising any voluntary separation incentive authority in effect on the effective date of this subsection [see Effective Date note above] may continue to offer voluntary separation incentives consistent with that authority until that authority expires."

Sense of Congress

Pub. L. 107–296, title XIII, §1313(c), Nov. 25, 2002, 116 Stat. 2296, provided that: "It is the sense of Congress that the implementation of this section [enacting this subchapter, amending sections 8336 and 8414 of this title, enacting provisions set out as notes under this section and section 8336 of this title, and repealing provisions set out as notes under sections 8336 and 8414 of this title] is intended to reshape the Federal workforce and not downsize the Federal workforce."

§3522. Agency plans; approval

(a) Before obligating any resources for voluntary separation incentive payments, the head of each agency shall submit to the Office of Personnel Management a plan outlining the intended use of such incentive payments and a proposed organizational chart for the agency once such incentive payments have been completed.

(b) The plan of an agency under subsection (a) shall include—

(1) the specific positions and functions to be reduced or eliminated;

(2) a description of which categories of employees will be offered incentives;

(3) the time period during which incentives may be paid;

(4) the number and amounts of voluntary separation incentive payments to be offered; and

(5) a description of how the agency will operate without the eliminated positions and functions.

(c) The Director of the Office of Personnel Management shall review each agency's plan an ¹ may make any appropriate modifications in the plan, in consultation with the Director of the Office of Management and Budget. A plan under this section may not be implemented without the approval of the Directive ² of the Office of Personnel Management.

(Added Pub. L. 107–296, title XIII, §1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2292.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 60 days after Nov. 25, 2002, see section 1313(a)(4) of Pub. L. 107–296, set out as a note under section 3521 of this title.

¹ So in original. Probably should be "and".

² So in original. Probably should be "Director".

§3523. Authority to provide voluntary separation incentive payments

(a) A voluntary separation incentive payment under this subchapter may be paid to an employee only as provided in the plan of an agency established under section 3522.

(b) A voluntary incentive payment—

(1) shall be offered to agency employees on the basis of—

(A) 1 or more organizational units;

(B) 1 or more occupational series or levels;

(C) 1 or more geographical locations;

(D) skills, knowledge, or other factors related to a position;

(E) specific periods of time during which eligible employees may elect a voluntary incentive payment; or

(F) any appropriate combination of such factors;

(2) shall be paid in a lump sum after the employee's separation;

(3) 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 (without adjustment for any previous payment made); or

(B) an amount determined by the agency head, not to exceed $25,000;

(4) may be made only in the case of an employee who voluntarily separates (whether by retirement or resignation) under this subchapter;

(5) shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit;

(6) shall not be taken into account in determining the amount of any severance pay to which the employee may be entitled under section 5595, based on another other ¹ separation; and

(7) shall be paid from appropriations or funds available for the payment of the basic pay of the employee.

(Added Pub. L. 107–296, title XIII, §1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2293.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 60 days after Nov. 25, 2002, see section 1313(a)(4) of Pub. L. 107–296, set out as a note under section 3521 of this title.

¹ So in original.

§3524. Effect of subsequent employment with the Government

(a) The term "employment"—

(1) in subsection (b) includes employment under a personal services contract (or other direct contract) with the United States Government (other than an entity in the legislative branch); and

(2) in subsection (c) does not include employment under such a contract.

(b) An individual who has received a voluntary separation incentive payment under this subchapter and accepts any employment for compensation with the Government of the United States with ¹ 5 years after the date of the separation on which the payment is based shall be required to pay, before the individual's first day of employment, the entire amount of the incentive payment to the agency that paid the incentive payment.

(c)(1) If the employment under this section is with an agency, other than the Government Accountability Office, the United States Postal Service, or the Postal Regulatory Commission, the Director of the Office of Personnel Management may, at the request of the head of the agency, may ² waive the repayment if—

(A) the individual involved possesses unique abilities and is the only qualified applicant available for the position; or

(B) in case of an emergency involving a direct threat to life or property, the individual—

(i) has skills directly related to resolving the emergency; and

(ii) will serve on a temporary basis only so long as that individual's services are made necessary by the emergency.

(2) If the employment under this section 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.

(3) If the employment under this section 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.

(Added Pub. L. 107–296, title XIII, §1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2293; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, §604(f), Dec. 20, 2006, 120 Stat. 3242.)

Editorial Notes

Amendments

2006—Subsec. (c)(1). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission" in introductory provisions.

2004—Subsec. (c)(1). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 60 days after Nov. 25, 2002, see section 1313(a)(4) of Pub. L. 107–296, set out as a note under section 3521 of this title.

¹ So in original. Probably should be "within".

² So in original.

§3525. Regulations

The Office of Personnel Management may prescribe regulations to carry out this subchapter.

(Added Pub. L. 107–296, title XIII, §1313(a)(1)(A), Nov. 25, 2002, 116 Stat. 2294.)

Editorial Notes

Prior Provisions

A prior section 3551, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 429; Pub. L. 90–491, §2, Aug. 17, 1968, 82 Stat. 791, related to restoration of positions of Federal and District of Columbia employees upon release from duty in Reserves or National Guard, prior to repeal by Pub. L. 103–353, §§2(b)(2)(B), 8, Oct. 13, 1994, 108 Stat. 3169, 3175, effective with respect to reemployments initiated on or after first day after 60-day period beginning Oct. 13, 1994, with transition rules.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 60 days after Nov. 25, 2002, see section 1313(a)(4) of Pub. L. 107–296, set out as a note under section 3521 of this title.

SUBCHAPTER III—REINSTATEMENT OR RESTORATION AFTER SUSPENSION OR REMOVAL FOR NATIONAL SECURITY

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 429.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 22–1 (1st 31 words of 3d proviso).	Aug. 26, 1950, ch. 803, §1 (1st 31 words of 3d proviso), 64 Stat. 477.

The words "suspended or removed under section 7532 of this title" are coextensive with and substituted for "whose employment is so suspended or terminated under the authority of said sections".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER IV—REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL ORGANIZATION

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 429; Pub. L. 91–175, pt. V, §502(b), Dec. 30, 1969, 83 Stat. 825; Pub. L. 94–183, §2(9), Dec. 31, 1975, 89 Stat. 1057.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2331.	Aug. 28, 1958, Pub. L. 85–795, §2, 72 Stat. 959.

In paragraphs (1)(A) and (B), the terms "Executive agency" and "military department" are coextensive with and substituted for "any department or agency in the executive branch of the United States Government including independent establishments and Government owned or controlled corporations" in view of the definitions in sections 105 and 102.

In paragraph (2), the word "employee" is substituted for "any civilian appointive officer or employee" in view of the definition of "employee" in section 2105. The words "in or under an agency" are substituted for "in or under the executive or the legislative branch of the United States Government".

The definition of "Congressional employee" in former section 2331(4) is omitted as unnecessary because the term "Congressional employee", defined for the purpose of this title in section 2107, is coextensive with the definition in former section 2331(4).

The definition of "Detail" in former section 2331(6) is omitted from this section as inappropriate but is carried into section 3343.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1975—Subsec. (5)(A). Pub. L. 94–183 substituted "3582(b)" for "3582(a)".

1969—Par. (5). Pub. L. 91–175 substituted "the first 5 consecutive years, or any extension thereof, after entering the employ of the international organization" for "the first 3 consecutive years after entering the employ of the international organization".

Executive Documents

Delegation of Authority

Authority of President to extend a transfer of an employee under this section delegated to Secretary of State, see section 3 of Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, set out as a note under section 3584 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 430; Pub. L. 91–175, pt. V, §502(c)–(f), Dec. 30, 1969, 83 Stat. 825, 826; Pub. L. 94–183, §2(10), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 105–277, div. G, subdiv. B, title XXV, §2504(a), Oct. 21, 1998, 112 Stat. 2681–837.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2333 (less (c)).	Aug. 28, 1958, Pub. L. 85–795 §4 (less (c)), 72 Stat. 960.

In subsection (a), the words "Notwithstanding the provisions of any law, Executive order, or regulation" are omitted as unnecessary. In paragraph (2), the words "an employee under chapter 87 of this title" are substituted for "an officer or employee of the United States". In paragraph (4), the words "under no circumstances" are omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1998—Subsec. (b). Pub. L. 105–277 inserted concluding provisions and struck out former concluding provisions which read as follows: "On reemployment, he is entitled to the rate of basic pay to which he would be entitled had he remained in the civil service. On reemployment, the agency shall restore his sick leave account, by credit or charge, to its status at the time of transfer. The period of separation caused by his employment with the international organization and the period necessary to effect reemployment are deemed creditable service for all appropriate civil service employment purposes. On reemployment, he is entitled to be paid, under such regulations as the President may prescribe and from appropriations or funds of the agency from which transferred, an amount equal to the difference between the pay, allowances, post differential, and other monetary benefits paid by the international organization and the pay, allowances, post differential, and other monetary benefits that would have been paid by the agency had he been detailed to the international organization under section 3343 of this title. Such a payment shall be made to an employee who is unable to exercise his reemployment right because of disability incurred while on transfer to an international organization under this subchapter and, in the case of any employee who dies while on such a transfer or during the period after separation from the international organization in which he is properly exercising or could exercise his reemployment right, in accordance with subchapter VIII of chapter 55 of this title. This subsection does not apply to a congressional employee nor may any payment provided for in the preceding two sentences of this subsection be based on a period of employment with an international organization occurring before the first day of the first pay period which begins after December 29, 1969."

1975—Subsec. (b). Pub. L. 94–183 substituted "after December 29, 1969" for "on or after the date of enactment of the Foreign Assistance Act of 1969" in last sentence.

1969—Subsec. (a). Pub. L. 91–175, §502(c), inserted provision at end of cl. (1) excepting from creditable service, for the purpose of any retirement system, an agency employee who transfers to an international organization, if such service forms the basis for an annuity or pension under the retirement system of the international organization, and, in cl. (2), inserted references to chapter 89 and Employees' Health Benefits Fund.

Subsec. (b). Pub. L. 91–175, §502(d), struck out ", except a Congressional employee," in provisions preceding cl. (1), substituted "5 years or any extension thereof," for "3 years" in cl. (1), and, in provisions following cl. (2), inserted provision dealing with pay differentials to be received by former agency employee on reemployment with agency after service with international organization.

Subsec. (c). Pub. L. 91–175, §502(e), substituted "5 years, or any extension thereof," for "3 years".

Subsec. (d). Pub. L. 91–175, §502(f), made contributions for retirement and insurance purposes mandatory by the agency from which employee is transferred, during employee's period of service with international organization, so long as contributions are made by employee.

Statutory Notes and Related Subsidiaries

Effective Date of 1998 Amendment

Pub. L. 105–277, div. G, subdiv. B, title XXV, §2504(b), Oct. 21, 1998, 112 Stat. 2681–837, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to transfers that take effect on or after the date of enactment of this Act [Oct. 21, 1998]."

Executive Documents

Delegation of Authority

Authority of President under subsec. (b) of this section delegated to Office of Personnel Management, and authority to define and specify pay, allowances, etc., to be paid by the agency, delegated to Secretary of State, see section 3 of Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, set out as a note under section 3584 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 431.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2333(c).	Aug. 28, 1958, Pub. L. 85–795, §4(c), 72 Stat. 961.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 431.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2334.	Aug. 28, 1958, Pub. L. 85–795, §5, 72 Stat. 961.

The words "civil service employment rights" are substituted for "Federal employment rights". The word "including" is substituted for "such as, but not limited to".

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Executive Documents

Executive Order No. 10804

Ex. Ord. No. 10804, Feb. 12, 1959, 24 F.R. 1147, which delegated to the United States Civil Service Commission the authority vested in the President by section 5 of the Federal Employees International Organization Service Act (72 Stat. 961) [now this section], was revoked by Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, set out below.

Ex. Ord. No. 11552. Providing for Details and Transfers of Federal Employees to International Organizations

Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 301 of title 3 and section 3584 of title 5 [this section], United States Code, and as President of the United States, it is ordered as follows:

Section 1. Leadership and coordination. The Secretary of State shall provide leadership and coordination for the effort of the Federal Government to increase and improve its participation in international organizations through transfers and details of well-qualified Federal employees, and shall develop policies, procedures, and programs consistent with this order to advance and encourage such participation.

Sec. 2. Federal agency cooperation. Each agency in the executive branch of the Federal Government shall to the maximum extent feasible and with due regard to its manpower requirements assist and encourage details and transfers of employees to international organizations by observing the following policies and procedures:

(1) Vacancies in international organizations shall be brought to the notice of well-qualified agency employees whose abilities and levels of responsibility in the Federal service are commensurate with those required to fill such vacancies.

(2) Subject to prior approval of his agency, no leave shall be charged an employee who is absent for a maximum of three days for interview for a proposed detail or transfer at the formal request of an international organization of a Federal official; an agency may approve official travel for necessary travel within the United States in connection with such an interview.

(3) An agency, upon request of an appropriate authority, shall provide international organizations with detailed assessments of the technical or professional qualifications of individual employees being formally considered for details and transfers to specific positions.

(4) Upon return of an employee to his agency, the agency shall give due consideration to the employee's overall qualifications, including those which may have been acquired during his service with the international organization, in determining the position and grade in which he is reemployed.

Sec. 3. Delegations. (a) Except as otherwise provided in this order, there is hereby delegated to the Office of Personnel Management the authority vested in the President by sections 3582(b) and 3584 of title 5, United States Code.

(b) The following are hereby delegated to the Secretary of State:

(1) The authority vested in the President by sections 3343 and 3581 of title 5, United States Code, to determine whether it is in the national interest to extend a detail or transfer of an employee beyond five years.

(2) The authority vested in the President by section 3582(b) of title 5, United States Code, to define and specify "pay, allowances, post differential, and other monetary benefits" to be paid by the agency upon reemployment, disability, or death.

Sec. 4. Revocation. Executive Order No. 10804 of February 12, 1959, is hereby revoked.

SUBCHAPTER V—REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR EXECUTIVE SERVICE

§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.

(Added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1165.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

§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, or

(2) at any time for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title,

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.

(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.

(Added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1165; amended Pub. L. 101–194, title V, §506(b)(3), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 107–296, title XIII, §1321(a)(2)(A), Nov. 25, 2002, 116 Stat. 2297.)

Editorial Notes

Amendments

2002—Subsec. (a). Pub. L. 107–296, §1321(a)(2)(A)(iv), struck out last sentence which read as follows: "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."

Subsec. (a)(1). Pub. L. 107–296, §1321(a)(2)(A)(i), inserted "or" at end.

Subsec. (a)(2). Pub. L. 107–296, §1321(a)(2)(A)(ii), struck out "or" at end.

Subsec. (a)(3). Pub. L. 107–296, §1321(a)(2)(A)(iii), struck out par. (3) which read as follows: "if the career appointee is not recertified as a senior executive under section 3393a,".

1989—Subsec. (a). Pub. L. 101–194, §506(b)(3)(D), inserted at end "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."

Subsec. (a)(3). Pub. L. 101–194, §506(b)(3)(A)–(C), added par. (3).

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

Savings Provision

Pub. L. 107–296, title XIII, §1321(b), Nov. 25, 2002, 116 Stat. 2297, provided that: "Notwithstanding the amendments made by subsection (a)(2)(A) [amending this section], an appeal under the final sentence of section 3592(a) of title 5, United States Code, that is pending on the day before the effective date of this section [see Effective Date of 2002 Amendment note above]—

"(1) shall not abate by reason of the enactment of the amendments made by subsection (a)(2)(A); and

"(2) shall continue as if such amendments had not been enacted."

§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, or less than fully successful executive performance as determined under subchapter II of chapter 43.

(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.

(Added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1166; amended Pub. L. 97–35, title XVII, §1704(b), Aug. 13, 1981, 95 Stat. 757; Pub. L. 98–615, title III, §303(a), Nov. 8, 1984, 98 Stat. 3217; Pub. L. 101–194, title V, §506(b)(4), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 107–296, title XIII, §1321(a)(2)(B), Nov. 25, 2002, 116 Stat. 2297.)

Editorial Notes

Amendments

2002—Subsec. (a)(2). Pub. L. 107–296 added par. (2) and struck out former par. (2) which read as follows: "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."

1989—Subsec. (a)(2). Pub. L. 101–194 struck out "or" after "malfeasance," and inserted ", or failure to be recertified as a senior executive under section 3393a" before period at end.

1984—Subsec. (c)(1)(B). Pub. L. 98–615 inserted "before October 1, 1984,".

1981—Subsec. (c). Pub. L. 97–35 added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Pub. L. 107–296, title XIII, §1321(c), Nov. 25, 2002, 116 Stat. 2297, provided that: "The amendment made by subsection (a)(2)(B) [amending this section] shall not apply with respect to an individual who, before the effective date of this section [see note above], leaves the Senior Executive Service for failure to be recertified as a senior executive under section 3393a of title 5, United States Code."

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–615 effective following expiration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under section 3393 of this title.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–35 effective June 1, 1981, with certain exceptions and conditions, see section 1704(e) of Pub. L. 97–35, set out as an Effective Date note under section 3595 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

§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; or

(2) is removed from the Senior Executive Service under paragraph (4) or (5) of section 3595(b) of this title;

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.

(Added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1166; amended Pub. L. 98–615, title III, §303(b), Nov. 8, 1984, 98 Stat. 3217; Pub. L. 101–194, title V, §506(b)(5), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 101–509, title V, §529 [title I, §101(b)(9)(E)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 102–378, §2(16), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 107–296, title XIII, §1321(a)(2)(C), Nov. 25, 2002, 116 Stat. 2297.)

Editorial Notes

References in Text

GS–15 of the General Schedule, referred to in subsec. (c)(1)(A), is set out under section 5332 of this title.

Amendments

2002—Subsec. (b)(1). Pub. L. 107–296, §1321(a)(2)(C)(i), inserted "or" at end.

Subsec. (b)(2). Pub. L. 107–296, §1321(a)(2)(C)(ii), struck out "or" at end.

Subsec. (b)(3). Pub. L. 107–296, §1321(a)(2)(C)(iii), struck out par. (3) which read as follows: "is removed from the Senior Executive Service for failure to be recertified under section 3393a;".

1992—Subsec. (c)(1)(A). Pub. L. 102–378 substituted "section 5108," for "section 5108,,".

1990—Subsec. (c)(1)(A). Pub. L. 101–509 substituted "at GS–15 of the General Schedule or classified above GS–15 pursuant to section 5108," for "at GS–15 or above of the General Schedule".

1989—Subsec. (b)(3). Pub. L. 101–194 added par. (3).

1984—Subsec. (b). Pub. L. 98–615 inserted provision relating to career appointees removed from the Senior Executive Service under section 3595(b)(4) or (5) of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–615 effective following expiration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under section 3393 of this title.

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

§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 that 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.

(Added Pub. L. 97–35, title XVII, §1704(a)(1), Aug. 13, 1981, 95 Stat. 756; amended Pub. L. 97–346, §5(a), (b), Oct. 15, 1982, 96 Stat. 1650; Pub. L. 98–615, title III, §§303(c), (d), 304(b), Nov. 8, 1984, 98 Stat. 3218, 3219.)

Editorial Notes

Prior Provisions

A prior section 3595, added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1167, which related to prescribing regulations, was renumbered section 3596 by Pub. L. 97–35, title XVII, §1704(a)(1), Aug. 13, 1981, 95 Stat. 756.

Amendments

1984—Subsec. (b)(3)(B). Pub. L. 98–615, §303(c)(1), struck out the designation "(i)" before provisions relating to placement in any agency in any vacant Executive Service position, and struck out former cl. (ii), which had related to detailing by the Office of Personnel Management to any vacant Senior Executive Service position for which the Office deemed the employee to be qualified in any agency for a period not to exceed 60 days, and placement in such position by the Office after the period of such detail, unless the head of the agency determined that the career appointee was not qualified for such position.

Subsec. (b)(4). Pub. L. 98–615, §303(c)(2), struck out "and the civil service" after "removed from the Senior Executive Service", struck out the designation "(A)" before "the career appointee declines", and substituted a period for the semicolon and "or" at the end thereof. Former subpar. (B) redesignated par. (5).

Subsec. (b)(5). Pub. L. 98–615, §303(c)(2), redesignated former par. (4)(B) as (5), substituted "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" for "subject to paragraph (5),", substituted "45 days" for "120 days", and struck out former par. (5), which had provided that persons who were career appointees as of May 31, 1981, could only be removed from the Senior Executive Service and the civil service due to a reduction in force after the 120-day period if the Director of the Office of Personnel Management certified to certain Congressional committees that the Office had taken all reasonable steps to place the appointee but had been unable to do so due to the appointee's highly specialized skills and experience.

Subsec. (c). Pub. L. 98–615, §303(d), struck out the designation "(1)" before "whether the reduction", and struck out pars. (2) and (3), which had provided, respectively, the right to appeal any removal under subsec. (b)(4)(A) and the right to appeal any nonappointment under subsec. (b)(3), and, in the event of such nonappointment, whether the Office of Personnel Management took all reasonable steps to achieve such placement and whether the agency correctly decided under subsec. (b)(3)(B) that the career appointee was not qualified for such placement.

Subsec. (e). Pub. L. 98–615, §304(b), added subsec. (e).

1982—Subsec. (b)(3)(B). Pub. L. 97–346, §5(a), designated as cl. (i) existing provisions relating to placement in any agency in any vacant Executive Service position, and added cl. (ii).

Subsec. (c)(3). Pub. L. 97–346, §5(b), designated as subpar. (A) existing provisions relating to taking of all reasonable steps by Office of Personnel Management, and added subpar. (B).

Statutory Notes and Related Subsidiaries

Effective Date of 1984 Amendment

Amendment by section 303(c), (d) of Pub. L. 98–615 effective following expiration of 90-day period beginning on Nov. 8, 1984, and amendment by section 304(b) of Pub. L. 98–615 effective Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under section 3393 of this title.

Effective Date of 1982 Amendment

Pub. L. 97–346, §5(c), Oct. 15, 1982, 96 Stat. 1650, provided that:

"(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Oct. 15, 1982].

"(2) The amendments made by this section [amending this section] shall apply to an individual who is a career appointee on or after September 30, 1982, except that any individual who is a career appointee on September 30, 1982, and who is described in section 3595(b)(3) of title 5, United States Code, may not be removed before December 15, 1982, due to a reduction in force, unless the removal is under section 3595(b)(4)(A) of such title on the grounds the individual declined a reasonable placement offer."

Effective Date

Pub. L. 97–35, title XVII, §1704(e), Aug. 13, 1981, 95 Stat. 758, provided that:

"(1) Subject to paragraph (2), the amendments made by this section [enacting this section, redesignating former section 3595 as section 3596 of this title, and amending sections 3393, 3593, 7542, and 7543 of this title] shall be effective as of June 1, 1981.

"(2)(A) Except as provided in subparagraph (B), the amendments made by this section shall apply to any career appointee removed from the civil service after May 31, 1981, and before the date of the enactment of this section [Aug. 13, 1981] if, not later than 14 days after such date of enactment, application therefor is made to the Office of Personnel Management and to the head of the Agency in which the appointee was employed.

"(B) The provisions of section 3595(a), as added by subsection (a)(1), shall take effect on the date of the enactment of this Act [Aug. 13, 1981].

"(3) The effectiveness of the amendments made by this section shall be subject to section 415(b) of the Civil Service Reform Act of 1978 [Pub. L. 95–454, title IV, Oct. 13, 1978, 92 Stat. 1154] (5 U.S.C. 3131 note) to the same extent and manner as the amendments made by title IV of that Act."

§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.

(Added Pub. L. 98–615, title III, §306(c)(1), Nov. 8, 1984, 98 Stat. 3220.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective following expiration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as an Effective Date of 1984 Amendment note under section 3393 of this title.

§3596. Regulations

The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.

(Added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1167, §3595; renumbered §3596, Pub. L. 97–35, title XVII, §1704(a)(1), Aug. 13, 1981, 95 Stat. 756.)

Editorial Notes

Amendments

1981—Pub. L. 97–35 renumbered section 3596 of this title as this section.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

SUBCHAPTER VI—REEMPLOYMENT FOLLOWING LIMITED APPOINTMENT IN THE FOREIGN SERVICE

§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.

(Added Pub. L. 96–465, title II, §2301(a), Oct. 17, 1980, 94 Stat. 2164.)

Editorial Notes

References in Text

Section 309 of the Foreign Service Act of 1980, referred to in text, is classified to section 3949 of Title 22, Foreign Relations and Intercourse.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as a note under section 3901 of Title 22, Foreign Relations and Intercourse.

SUBCHAPTER VII—RETENTION OF RETIRED SPECIALIZED EMPLOYEES AT THE FEDERAL BUREAU OF INVESTIGATION

Editorial Notes

Codification

Pub. L. 108–447, div. B, title I, §114(a), Dec. 8, 2004, 118 Stat. 2869, and Pub. L. 108–458, title II, §2004(a), Dec. 17, 2004, 118 Stat. 3704, amended chapter identically adding subchapter VII heading.

§3598.¹ Federal Bureau of Investigation Reserve Service

(a) Establishment.—The Director of the Federal Bureau of Investigation may provide for the establishment and training of a Federal Bureau of Investigation Reserve Service (hereinafter in this section referred to as the "FBI Reserve Service") for temporary reemployment of employees in the Bureau during periods of emergency, as determined by the Director.

(b) Membership.—Membership in the FBI Reserve Service shall be limited to individuals who previously served as full-time employees of the Bureau.

(c) Annuitants.—If an annuitant receiving an annuity from the Civil Service Retirement and Disability Fund becomes temporarily reemployed pursuant to this section, such annuity shall not be discontinued thereby. An annuitant so reemployed shall not be considered an employee for the purposes of chapter 83 or 84.

(d) No Impact on Bureau Personnel Ceiling.—FBI Reserve Service members reemployed on a temporary basis pursuant to this section shall not count against any personnel ceiling applicable to the Bureau.

(e) Expenses.—The Director may provide members of the FBI Reserve Service transportation and per diem in lieu of subsistence, in accordance with applicable provisions of this title, for the purpose of participating in any training that relates to service as a member of the FBI Reserve Service.

(f) Limitation on Membership.—Membership of the FBI Reserve Service is not to exceed 500 members at any given time.

(Added Pub. L. 108–447, div. B, title I, §114(a), Dec. 8, 2004, 118 Stat. 2869.)

¹ Another section 3598 is set out after this section.

§3598.¹ Federal Bureau of Investigation Reserve Service

(a) Establishment.—The Director of the Federal Bureau of Investigation may provide for the establishment and training of a Federal Bureau of Investigation Reserve Service (hereinafter in this section referred to as the "FBI Reserve Service") for temporary reemployment of employees in the Bureau during periods of emergency, as determined by the Director.

(b) Membership.—Membership in the FBI Reserve Service shall be limited to individuals who previously served as full-time employees of the Bureau.

(c) Annuitants.—If an individual receiving an annuity from the Civil Service Retirement and Disability Fund on the basis of such individual's service becomes temporarily reemployed pursuant to this section, such annuity shall not be discontinued thereby. An individual so reemployed shall not be considered an employee for the purposes of chapter 83 or 84.

(d) No Impact on Bureau Personnel Ceiling.—FBI Reserve Service members reemployed on a temporary basis pursuant to this section shall not count against any personnel ceiling applicable to the Bureau.

(e) Expenses.—The Director may provide members of the FBI Reserve Service transportation and per diem in lieu of subsistence, in accordance with applicable provisions of this title, for the purpose of participating in any training that relates to service as a member of the FBI Reserve Service.

(f) Limitation on Membership.—Membership of the FBI Reserve Service is not to exceed 500 members at any given time.

(g) Limitation on Duration of Service.—An individual may not be reemployed under this section for more than 180 days in connection with any particular emergency unless, in the judgment of the Director, the public interest so requires.

(Added Pub. L. 108–458, title II, §2004(a), Dec. 17, 2004, 118 Stat. 3703.)

¹ Another section 3598 is set out preceding this section.

CHAPTER 37—INFORMATION TECHNOLOGY EXCHANGE PROGRAM

        

§3701. Definitions

For purposes of this chapter—

(1) the term "agency" means an Executive agency, but does not include the Government Accountability Office; and

(2) the term "detail" means—

(A) the assignment or loan of an employee of an agency to a private sector organization without a change of position from the agency that employs the individual, or

(B) the assignment or loan of an employee of a private sector organization to an agency without a change of position from the private sector organization that employs the individual,

whichever is appropriate in the context in which such term is used.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2925; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Amendments

2004—Par. (1). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3702. General provisions

(a) Assignment Authority.—On request from or with the agreement of a private sector organization, and with the consent of the employee concerned, the head of an agency may arrange for the assignment of an employee of the agency to a private sector organization or an employee of a private sector organization to the agency. An eligible employee is an individual who—

(1) works in the field of information technology management;

(2) is considered an exceptional performer by the individual's current employer; and

(3) is expected to assume increased information technology management responsibilities in the future.

An employee of an agency shall be eligible to participate in this program only if the employee is employed at the GS–11 level or above (or equivalent) and is serving under a career or career-conditional appointment or an appointment of equivalent tenure in the excepted service, and applicable requirements of section 209(b) of the E-Government Act of 2002 are met with respect to the proposed assignment of such employee.

(b) Agreements.—Each agency that exercises its authority under this chapter shall provide for a written agreement between the agency and the employee concerned regarding the terms and conditions of the employee's assignment. In the case of an employee of the agency, the agreement shall—

(1) require the employee to serve in the civil service, upon completion of the assignment, for a period equal to the length of the assignment; and

(2) 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 agency from which assigned) the employee shall be liable to the United States for payment of all expenses of the assignment.

An amount under paragraph (2) shall be treated as a debt due the United States.

(c) Termination.—Assignments may be terminated by the agency or private sector organization concerned for any reason at any time.

(d) Duration.—Assignments under this chapter shall be for a period of between 3 months and 1 year, and may be extended in 3-month increments for a total of not more than 1 additional year, except that no assignment under this chapter may commence after the end of the 5-year period beginning on the date of the enactment of this chapter.

(e) Assistance.—The Chief Information Officers Council, by agreement with the Office of Personnel Management, may assist in the administration of this chapter, including by maintaining lists of potential candidates for assignment under this chapter, establishing mentoring relationships for the benefit of individuals who are given assignments under this chapter, and publicizing the program.

(f) Considerations.—In exercising any authority under this chapter, an agency shall take into consideration—

(1) the need to ensure that small business concerns are appropriately represented with respect to the assignments described in sections 3703 and 3704, respectively; and

(2) how assignments described in section 3703 might best be used to help meet the needs of the agency for the training of employees in information technology management.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2925.)

Editorial Notes

References in Text

GS–11, referred to in subsec. (a), is contained in the General Schedule which is set out under section 5332 of this title.

Section 209(b) of the E-Government Act of 2002, referred to in subsec. (a), is section 209(b) of Pub. L. 107–347, which is set out in a note under section 3501 of Title 44, Public Printing and Documents.

The date of the enactment of this chapter, referred to in subsec. (d), is the date of enactment of Pub. L. 107–347, which was approved Dec. 17, 2002.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

Pilot Program for the Temporary Assignment of Cyber and Information Technology Personnel to Private Sector Organizations

Pub. L. 111–84, div. A, title XI, §1110, Oct. 28, 2009, 123 Stat. 2493, as amended by Pub. L. 113–66, div. A, title XI, §1106, Dec. 26, 2013, 127 Stat. 887; Pub. L. 114–92, div. A, title X, §1075(a), Nov. 25, 2015, 129 Stat. 997; Pub. L. 114–328, div. A, title XI, §1123, Dec. 23, 2016, 130 Stat. 2455; Pub. L. 117–263, div. A, title XI, §1112, Dec. 23, 2022, 136 Stat. 2820; Pub. L. 117–286, §4(c)(7), Dec. 27, 2022, 136 Stat. 4354; Pub. L. 118–159, div. A, title XI, §1101, Dec. 23, 2024, 138 Stat. 2085, provided that:

"(a) Assignment Authority.—The Secretary of Defense may, with the agreement of the private sector organization concerned, arrange for the temporary assignment of an employee to such private sector organization, or from such private sector organization to a Department of Defense organization under this section. An employee shall be eligible for such an assignment only if—

"(1) the employee—

"(A) works in the field of cyber operations or information technology management or performs financial management and budgeting tasks for a private sector organization that primarily develops software or provides software services;

"(B) is considered by the Secretary of Defense to be an exceptional employee;

"(C) is expected to assume increased cyber operations or information technology management responsibilities in the future; and

"(D) is compensated at not less than the GS–11 level (or the equivalent); and

"(2) the proposed assignment meets applicable requirements of section 209(b) of the E-Government Act of 2002 [Pub. L. 107–347] (44 U.S.C. 3501 note).

"(b) Agreements.—The Secretary of Defense shall provide for a written agreement among the Department of Defense, the private sector organization, and the employee concerned regarding the terms and conditions of the employee's assignment under this section. The agreement—

"(1) shall require that employees of the Department of Defense, upon completion of the assignment, will serve in the civil service for a period equal to the length of the assignment; and

"(2) shall provide that if the employee of the Department of Defense or of the private sector organization (as the case may be) fails to carry out the agreement, such employee shall be liable to the United States for payment of all expenses of the assignment, unless that failure was for good and sufficient reason, as determined by the Secretary of Defense.

An amount for which an employee is liable under paragraph (2) shall be treated as a debt due the United States.

"(c) Termination.—An assignment under this section may, at any time and for any reason, be terminated by the Department of Defense or the private sector organization concerned.

"(d) Duration.—An assignment under this section shall be for a period of not less than 3 months and not more than 1 year, and may be extended in 3-month increments for a total of not more than 1 additional year; however, no assignment under this section may commence after December 31, 2026.

"(e) Terms and Conditions for Private Sector Employees.—An employee of a private sector organization who is assigned to a Department of Defense organization under this section—

"(1) may continue to receive pay and benefits from the private sector organization from which such employee is assigned;

"(2) is deemed to be an employee of the Department of Defense for the purposes of—

"(A) chapter 73 of title 5, United States Code;

"(B) sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18, United States Code;

"(C) sections 1343, 1344, and 1349(b) of title 31, United States Code;

"(D) the Federal Tort Claims Act [see Short Title note under section 2671 of Title 28, Judiciary and Judicial Procedure] and any other Federal tort liability statute;

"(E) chapter 131 of title 5, United States Code;

"(F) section 1043 of the Internal Revenue Code of 1986 [26 U.S.C. 1043]; and

"(G) section 27 of the Office of Federal Procurement Policy Act [now 41 U.S.C. 2101 et seq.]; and

"(3) may not have access to any trade secrets or to any other nonpublic information which is of commercial value to the private sector organization from which such employee is assigned.

"(f) Prohibition Against Charging Certain Costs to the Federal Government.—A private sector organization may not charge the Department of Defense or any other agency of the Federal Government, as direct or indirect costs under a Federal contract, the costs of pay or benefits paid by the organization to an employee assigned to a Department of Defense organization under this section for the period of the assignment.

"(g) Considerations.—In carrying out this section, the Secretary of Defense—

"(1) shall ensure that, of the assignments made under this section each year, at least 20 percent are to or from small business concerns (as defined by section 3703(e)(2)(A) of title 5, United States Code); and

"(2) shall take into consideration the question of how assignments under this section might best be used to help meet the needs of the Department of Defense with respect to the training of employees in cyber operations or information technology management.

"(h) Numerical Limitation.—In no event may more than 50 employees be participating in assignments under this section at any given time.

"(i) Repeal of Superseded Section.—Section 1109 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 358) [formerly set out as a note under this section] is repealed, except that—

"(1) nothing in this subsection shall, in the case of any assignment commencing under such section 1109 on or before the date of the enactment of this Act [Oct. 28, 2009], affect—

"(A) the duration of such assignment or the authority to extend such assignment in accordance with subsection (d) of such section 1109, as last in effect; or

"(B) the terms or conditions of the agreement governing such assignment, including with respect to any service obligation under subsection (b) thereof; and

"(2) any employee whose assignment is allowed to continue by virtue of paragraph (1) shall be taken into account for purposes of the numerical limitation under subsection (h)."

Pub. L. 110–181, div. A, title XI, §1109, Jan. 28, 2008, 122 Stat. 358, which authorized the Secretary of Defense to arrange for the temporary assignment of a Department of Defense employee to a private sector organization under certain terms, conditions, and considerations, and for a limited period, and required the Secretary to submit to the Committees on Armed Services a report on the potential benefits of temporarily assigning information technology specialists from private sector organizations to the Department of Defense, was repealed, with certain exceptions, by Pub. L. 111–84, div. A, title XI, §1110(i), formerly §1110(j), Oct. 28, 2009, 123 Stat. 2495, renumbered §1110(i), Pub. L. 114–92, div. A, title X, §1075(a)(2), Nov. 25, 2015, 129 Stat. 997, see above.

§3703. Assignment of employees to private sector organizations

(a) In General.—An employee of an agency assigned to a private sector organization under this chapter is deemed, during the period of the assignment, to be on detail to a regular work assignment in his agency.

(b) Coordination With Chapter 81.—Notwithstanding any other provision of law, an employee of an agency assigned to a private sector organization under this chapter is entitled to retain coverage, rights, and benefits under subchapter I of chapter 81, and employment during the assignment is deemed employment by the United States, except that, if the employee or the employee's dependents receive from the private sector organization any payment under an insurance policy for which the premium is wholly paid by the private sector organization, or other benefit of any kind on account of the same injury or death, then, the amount of such payment or benefit shall be credited against any compensation otherwise payable under subchapter I of chapter 81.

(c) Reimbursements.—The assignment of an employee to a private sector organization under this chapter may be made with or without reimbursement by the private sector organization for the travel and transportation expenses to or from the place of assignment, subject to the same terms and conditions as apply with respect to an employee of a Federal agency or a State or local government under section 3375, and for the pay, or a part thereof, of the employee during assignment. Any reimbursements shall be credited to the appropriation of the agency used for paying the travel and transportation expenses or pay.

(d) Tort Liability; Supervision.—The Federal Tort Claims Act and any other Federal tort liability statute apply to an employee of an agency assigned to a private sector organization under this chapter. The supervision of the duties of an employee of an agency so assigned to a private sector organization may be governed by an agreement between the agency and the organization.

(e) Small Business Concerns.—

(1) In general.—The head of each agency shall take such actions as may be necessary to ensure that, of the assignments made under this chapter from such agency to private sector organizations in each year, at least 20 percent are to small business concerns.

(2) Definitions.—For purposes of this subsection—

(A) the term "small business concern" means a business concern that satisfies the definitions and standards specified by the Administrator of the Small Business Administration under section 3(a)(2) of the Small Business Act (as from time to time amended by the Administrator);

(B) the term "year" refers to the 12-month period beginning on the date of the enactment of this chapter, and each succeeding 12-month period in which any assignments under this chapter may be made; and

(C) the assignments "made" in a year are those commencing in such year.

(3) Reporting requirement.—An agency which fails to comply with paragraph (1) in a year shall, within 90 days after the end of such year, submit a report to the Committees on Government Reform and Small Business of the House of Representatives and the Committees on Governmental Affairs and Small Business of the Senate. The report shall include—

(A) the total number of assignments made under this chapter from such agency to private sector organizations in the year;

(B) of that total number, the number (and percentage) made to small business concerns; and

(C) the reasons for the agency's noncompliance with paragraph (1).

(4) Exclusion.—This subsection shall not apply to an agency in any year in which it makes fewer than 5 assignments under this chapter to private sector organizations.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2926.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (d), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.

Section 3(a)(2) of the Small Business Act, referred to in subsec. (e)(2)(A), is classified to section 632(a)(2) of Title 15, Commerce and Trade.

The date of the enactment of this chapter, referred to in subsec. (e)(2)(B), is the date of enactment of Pub. L. 107–347, which was approved Dec. 17, 2002.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Small Business of Senate changed to Committee on Small Business and Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June 29, 2001.

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3704. Assignment of employees from private sector organizations

(a) In General.—An employee of a private sector organization assigned to an agency under this chapter is deemed, during the period of the assignment, to be on detail to such agency.

(b) Terms and Conditions.—An employee of a private sector organization assigned to an agency under this chapter—

(1) may continue to receive pay and benefits from the private sector organization from which he is assigned;

(2) is deemed, notwithstanding subsection (a), to be an employee of the agency for the purposes of—

(A) chapter 73;

(B) sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18;

(C) sections 1343, 1344, and 1349(b) of title 31;

(D) the Federal Tort Claims Act and any other Federal tort liability statute;

(E) chapter 131 of this title;

(F) section 1043 of the Internal Revenue Code of 1986; and

(G) chapter 21 of title 41;

(3) may not have access to any trade secrets or to any other nonpublic information which is of commercial value to the private sector organization from which he is assigned; and

(4) is subject to such regulations as the President may prescribe.

The supervision of an employee of a private sector organization assigned to an agency under this chapter may be governed by agreement between the agency and the private sector organization concerned. Such an assignment may be made with or without reimbursement by the agency for the pay, or a part thereof, of the employee during the period of assignment, or for any contribution of the private sector organization to employee benefit systems.

(c) Coordination With Chapter 81.—An employee of a private sector organization assigned to an agency under this chapter who suffers disability or dies as a result of personal injury sustained while performing duties during the assignment shall be treated, for the purpose of subchapter I of chapter 81, as an employee as defined by section 8101 who had sustained the injury in the performance of duty, except that, if the employee or the employee's dependents receive from the private sector organization any payment under an insurance policy for which the premium is wholly paid by the private sector organization, or other benefit of any kind on account of the same injury or death, then, the amount of such payment or benefit shall be credited against any compensation otherwise payable under subchapter I of chapter 81.

(d) Prohibition Against Charging Certain Costs to the Federal Government.—A private sector organization may not charge the Federal Government, as direct or indirect costs under a Federal contract, the costs of pay or benefits paid by the organization to an employee assigned to an agency under this chapter for the period of the assignment.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2928; amended Pub. L. 111–350, §5(a)(6), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 117–286, §4(c)(8), Dec. 27, 2022, 136 Stat. 4354.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (b)(2)(D), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.

Section 1043 of the Internal Revenue Code of 1986, referred to in subsec. (b)(2)(F), is classified to section 1043 of Title 26, Internal Revenue Code.

Amendments

2022—Subsec. (b)(2)(E). Pub. L. 117–286 substituted "chapter 131 of this title;" for "the Ethics in Government Act of 1978;".

2011—Subsec. (b)(2)(G). Pub. L. 111–350 substituted "chapter 21 of title 41" for "section 27 of the Office of Federal Procurement Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3705. Application to Office of the Chief Technology Officer of the District of Columbia

(a) In General.—The Chief Technology Officer of the District of Columbia may arrange for the assignment of an employee of the Office of the Chief Technology Officer to a private sector organization, or an employee of a private sector organization to such Office, in the same manner as the head of an agency under this chapter.

(b) Terms and Conditions.—An assignment made pursuant to subsection (a) shall be subject to the same terms and conditions as an assignment made by the head of an agency under this chapter, except that in applying such terms and conditions to an assignment made pursuant to subsection (a), any reference in this chapter to a provision of law or regulation of the United States shall be deemed to be a reference to the applicable provision of law or regulation of the District of Columbia, including the applicable provisions of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 (sec. 1–601.01 et seq., D.C. Official Code) and section 601 of the District of Columbia Campaign Finance Reform and Conflict of Interest Act (sec. 1–1106.01, D.C. Official Code).

(c) Definition.—For purposes of this section, the term "Office of the Chief Technology Officer" means the office established in the executive branch of the government of the District of Columbia under the Office of the Chief Technology Officer Establishment Act of 1998 (sec. 1–1401 et seq., D.C. Official Code).

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2929.)

Editorial Notes

References in Text

The District of Columbia Government Comprehensive Merit Personnel Act of 1978, referred to in subsec. (b), is an act of the District of Columbia and is not classified to the Code.

The District of Columbia Campaign Finance Reform and Conflict of Interest Act, referred to in subsec. (b), is Pub. L. 93–376, Aug. 14, 1974, 88 Stat. 447, which is not classified to the Code.

The Office of the Chief Technology Officer Establishment Act of 1998, referred to in subsec. (c), is an act of the District of Columbia and is not classified to the Code.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3706. Reporting requirement

(a) In General.—The Office of Personnel Management shall, not later than April 30 and October 31 of each year, prepare and submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate a semiannual report summarizing the operation of this chapter during the immediately preceding 6-month period ending on March 31 and September 30, respectively.

(b) Content.—Each report shall include, with respect to the 6-month period to which such report relates—

(1) the total number of individuals assigned to, and the total number of individuals assigned from, each agency during such period;

(2) a brief description of each assignment included under paragraph (1), including—

(A) the name of the assigned individual, as well as the private sector organization and the agency (including the specific bureau or other agency component) to or from which such individual was assigned;

(B) the respective positions to and from which the individual was assigned, including the duties and responsibilities and the pay grade or level associated with each; and

(C) the duration and objectives of the individual's assignment; and

(3) such other information as the Office considers appropriate.

(c) Publication.—A copy of each report submitted under subsection (a)—

(1) shall be published in the Federal Register; and

(2) shall be made publicly available on the Internet.

(d) Agency Cooperation.—On request of the Office, agencies shall furnish such information and reports as the Office may require in order to carry out this section.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2929.)

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3707. Regulations

The Director of the Office of Personnel Management shall prescribe regulations for the administration of this chapter.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2930.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

Subpart C—Employee Performance

CHAPTER 41—TRAINING

        

Editorial Notes

Amendments

2004—Pub. L. 108–411, title II, §201(b)(2), Oct. 30, 2004, 118 Stat. 2312, added item 4121.

2003—Pub. L. 108–7, div. H, title I, §1010(b), Feb. 20, 2003, 117 Stat. 360, added item 4120.

2002—Pub. L. 107–296, title XIII, §1331(b), Nov. 25, 2002, 116 Stat. 2299, substituted "Academic degree training" for "Restriction on degree training" in item 4107.

1995—Pub. L. 104–66, title II, §2181(c)(2), Dec. 21, 1995, 109 Stat. 732, struck out item 4113 "Agency review of training needs; annual program reports".

1994—Pub. L. 103–226, §2(b)(2), Mar. 30, 1994, 108 Stat. 112, struck out item 4106 "Non-Government facilities; amount of training limited", substituted "Restriction on degree training" for "Non-Government facilities; restrictions" in item 4107, and struck out item 4114 "Non-Government facilities; review of training programs".

1982—Pub. L. 97–346, §1(b), Oct. 15, 1982, 96 Stat. 1647, added item 4119.

§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 Publishing 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 432; Pub. L. 90–206, title II, §224(a), Dec. 16, 1967, 81 Stat. 642; Pub. L. 97–258, §3(a)(8), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 103–226, §2(a)(1), Mar. 30, 1994, 108 Stat. 111; Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2302.	July 7, 1958, Pub. L. 85–507, §3, 72 Stat. 328.

In paragraph (1), the word "agency" is substituted for "department". Reference to the "General Accounting Office" is omitted as included in "independent establishment" because of the definition in section 104.

In paragraph (2)(B), the words "in the Department of Commerce" are omitted as unnecessary.

In paragraph (6)(C), the word "agency" is omitted as unnecessary and to avoid confusion with the word "agency" defined by paragraph (1).

In paragraph (6)(E), the words "individuals other than civilian or military personnel of the Government" are substituted for "an individual not a civilian or military officer or employee of the Government of the United States or of the municipal government of the District of Columbia" to conform to paragraph (5).

The definition of "Commission" in former section 2302(4) is omitted as unnecessary as the title "Civil Service Commission" is fully set out the first time it is used in each section of this chapter.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1994—Par. (4). Pub. L. 103–226 substituted "fields which will improve individual and organizational performance and assist in achieving the agency's mission and performance goals;" for "fields which are or will be directly related to the performance by the employee of official duties for the Government, in order to increase the knowledge, proficiency, ability, skill, and qualifications of the employee in the performance of official duties;".

1982—Par. (1)(C). Pub. L. 97–258 substituted "chapter 91" for "sections 846–852 or 856–859".

1967—Par. (2)(B). Pub. L. 90–206 substituted "Environmental Science Services Administration" for "Coast and Geodetic Survey"

Statutory Notes and Related Subsidiaries

Change of Name

"Government Publishing Office" substituted for "Government Printing Office" in par. (1)(E) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–206 effective Dec. 16, 1967, see section 220(a)(1) of Pub. L. 90–206, set out as an Effective Date note under section 3110 of this title.

Executive Documents

Transfer of Functions

For transfer of Environmental Science Services Administration to National Oceanic and Atmospheric Administration, see Transfer of Functions note set out under section 5541 of this title.

Delegation of Functions

Functions of President under subsec. (6)(B) of this section delegated to head of each agency concerned, see section 402 of Ex. Ord. No. 11348, Apr. 20, 1967, 32 F.R. 6335, set out as a note under section 4103 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 433; Pub. L. 90–83, §1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 94–183, §2(11), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, §2(a)(15), (19), Aug. 14, 1979, 93 Stat. 382.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2303.	July 7, 1958, Pub. L. 85–507, §4, 72 Stat. 329. May 26, 1959, Pub. L. 86–33, 73 Stat. 62. Aug. 2, 1962, Pub. L. 87–566, 76 Stat. 264.

In subsection (a)(1), the exception for the President and Vice President is omitted as surplusage as these elected officers are not employed in or under an agency and thus are not included in the definition of "employee" in section 4101(2).

In subsection (a)(1)(C), the words "as defined by section 231(a) of Title 37" are omitted as unnecessary in view of the definition of "uniformed services" in section 2101(b). The words "section 204 of title 37" are substituted for "sections 232–234, 235, 236, 237, 238, and 239 of Title 37" on authority of section 12(b) of the Act of Sept. 7, 1962, Pub. L. 87–649, 76 Stat. 497.

In subsection (a)(2)(B), the words "by the President" are coextensive with and substituted for "by the President by and with the advice and consent of the Senate or by the President alone".

In subsection (b)(1), reference to "section 21, and section 22" is omitted as unnecessary since the sections are not carried into this title, but are scheduled for repeal, see Table II.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1979—Subsec. (a)(1)(C). Pub. L. 96–54, §2(a)(19), substituted "National Oceanic and Atmospheric" for "Environmental Science Services".

Subsec. (b). Pub. L. 96–54, §2(a)(15), substituted "Office" for "Commission".

1978—Subsec. (b). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

1975—Subsec. (a)(2)(B). Pub. L. 94–183 struck out "(except a Postmaster)" after "an individual appointed by the President".

1967—Subsec. (a)(1)(C). Pub. L. 90–83 substituted "Environmental Science Services Administration" for "Coast and Geodetic Survey." See Historical and Revision Notes under section 2101 of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendments by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Executive Documents

Delegation of Functions

Functions of President under subsec. (b)(1) of this section delegated to Office of Personnel Management, see section 401(a) of Ex. Ord. No. 11348, Apr. 20, 1967, 32 F.R. 6335, set out as a note under section 4103 of this title.

Ex. Ord. No. 10805. Central Intelligence Agency

Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, provided:

Section 1. The Central Intelligence Agency is hereby designated as excepted from the following-described provisions of the Government Employees Training Act [this chapter and section 1308 of this title]:

(a) Section 2(4), 6, 9(b)(1), 11, 12, 15, 16, and 18 [sections 4117, 4118, 4105(b)(1), 4108, 4106, 4114, 4115, and 1308(a)(4)(A)–(C), (b) and 4113(b) respectively of this title].

(b) The last sentence of section 5 [section 4113(a) of this title].

(c) That part of section 7 [section 4103(1) of this title] which reads "shall conform, on or after the effective date of the regulations prescribed by the Commission under section 6 of this Act [section 4118 of this title], to the principles, standards, and related requirements contained in such regulations then current,".

(d) That part of section 10 [section 4109(a) of this title] which reads "in accordance with regulations issued by the Commission under authority of section 6(a)(8) [section 4118(a)(8) of this title]."

Sec. 2. Section 2 of Executive Order No. 10800, of January 15, 1959, is hereby amended by deleting the reference to "section 5" and the reference to "section 5(b)" and by inserting in lieu thereof "section 4" and "section 4(b)", respectively.

Executive Order No. 11531

Ex. Ord. No. 11531, May 26, 1970, 35 F.R. 8337, which related to the delegation of Presidential authority to designate United States Marshals and United States Attorneys for training, was superseded by Ex. Ord. No. 11895, Jan. 6, 1976, 41 F.R. 1465, set out below.

Ex. Ord. No. 11895. Delegation of Presidential Authority To Designate Individuals Appointed by the President To Receive Training

Ex. Ord. No. 11895, Jan. 6, 1976, 41 F.R. 1465, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by Section 301 of Title 3 of the United States Code, and as President of the United States, it is hereby ordered as follows:

Section 1. Except as provided in Section 2 of this Order, the Office of Personnel Management is hereby designated and empowered to exercise the authority vested in the President by Section 4102(a)(2)(B) of Title 5, United States Code, to designate individuals appointed by the President for training under Chapter 41 of Title 5, United States Code.

Sec. 2. The Attorney General is hereby designated and empowered to exercise the authority vested in the President by Section 4102(a)(2)(B) to designate individuals appointed by the President as United States Attorneys and United States Marshals for training under Chapter 41 of Title 5, United States Code.

Sec. 3. Executive Order No. 11531 of May 26, 1970, is hereby superseded.

§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.

(c) The head of each agency shall, on a regular basis—

(1) evaluate each program or plan established, operated, or maintained under subsection (a) with respect to accomplishing specific performance plans and strategic goals in performing the agency mission; and

(2) modify such program or plan as needed to accomplish such plans and goals.

(Pub. L. 89–554, Sept. 6, 1966. 80 Stat. 433; Pub. L. 95–454, title III, §304, Oct. 13, 1978, 92 Stat. 1146; Pub. L. 103–226, §2(a)(2), Mar. 30, 1994, 108 Stat. 111; Pub. L. 108–411, title II, §201(a), Oct. 30, 2004, 118 Stat. 2311.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2306.	July 7, 1958, Pub. L. 85–507, §7, 72 Stat. 331.

The words "Within two hundred and seventy days after the date of enactment of this Act [July 7, 1958]" are omitted as obsolete.

In paragraph (1), reference to the effective date of the regulations is omitted as obsolete.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2004—Subsec. (c). Pub. L. 108–411 added subsec. (c).

1994—Subsec. (a). Pub. L. 103–226, §2(a)(2)(A)(i), in introductory provisions, substituted "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" for "In order to increase economy and efficiency in the operations of the agency and to raise the standards of performance by employees of their official duties to the maximum possible level of proficiency, the head of each agency, in conformity with this chapter, shall establish, operate, and maintain".

Subsec. (a)(3), (4). Pub. L. 103–226, §2(a)(2)(A)(ii)–(iv), added par. (3) and redesignated former par. (3) as (4).

Subsec. (b)(1). Pub. L. 103–226, §2(a)(2)(B)(i), substituted "determines that such training would be in the interests of the Government." for "determines that the employee will otherwise be separated under conditions which would entitle the employee to severance pay under section 5595 of this title."

Subsec. (b)(2). Pub. L. 103–226, §2(a)(2)(B)(ii), (iii), redesignated par. (3) as (2), in subpar. (C) substituted "such training" for "retaining the employee in the Federal service", and struck out former par. (2) which read as follows: "Before undertaking any training under this subsection, the head of the agency shall obtain verification from the Office of Personnel Management that there exists a reasonable expectation of placement in another agency."

Subsec. (b)(3). Pub. L. 103–226, §2(a)(2)(B)(ii), redesignated par. (3) as (2).

1978—Pub. L. 95–454 designated existing provisions as subsec. (a) and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Ensuring Anti-Trafficking-In-Persons Trainings and Provisions Into Codes of Conduct of All Federal Departments and Executive Agencies

Pub. L. 117–348, title I, §122, Jan. 5, 2023, 136 Stat. 6217, provided that:

"(a) Findings.—Congress finds the following:

"(1) Human trafficking is inimical to every Federal agency's core values and inherently harmful and dehumanizing.

"(2) Through the adoption of a Code of Conduct, Federal agencies hold their personnel to similar standards that are required of contractors and subcontractors of the agency under Federal law.

"(3) Human trafficking is a violation of human rights and against Federal law.

"(4) The United States Government seeks to deter activities that would facilitate or support trafficking in persons.

"(b) Sense of Congress on Implementation of Anti-trafficking-in-persons Policies.—It is the sense of Congress that—

"(1) beginning not later than 18 months after the date of the enactment of this Act [Jan. 5, 2023], the head of every Federal agency should incorporate a module on human trafficking into its staff training requirements and menu of topics to be covered in the annual ethics training of such agency;

"(2) such staff trainings should teach employees how to prevent, identify, and report trafficking in persons;

"(3) Federal agencies that already provide counter trafficking-in-persons training for staff should share their curricula with agencies that do not have such curricula;

"(4) the head of each agency should inform all candidates for employment about the anti-trafficking provisions in the Code of Conduct of the agency;

"(5) employees of each Federal agency should sign acknowledgment of the agency's Code of Conduct, which should be kept in the file of the employee; and

"(6) a violation of the Code of Conduct should lead to disciplinary action, up to and including termination of employment.

"(c) Policy for Executive Branch Employees.—The President shall take such steps as may be necessary to ensure that each officer and employee (including temporary employees, persons stationed abroad while working for the United States, and detailees from other agencies of the Federal Government) of an agency in the executive branch of the Federal Government is subject to a policy with a minimum standard that contains—

"(1) a prohibition from engaging in human trafficking while employed by the Government in a full-time or part-time capacity;

"(2) a requirement that all Federal personnel, without regard to whether the person is stationed abroad, be sensitized to human trafficking and the ethical conduct requirements that prohibit the procurement of trafficking in persons;

"(3) a requirement that all such personnel be equipped with the necessary knowledge and tools to prevent, recognize, report, and address human trafficking offenses through a training for new personnel and through regular refresher courses offered every 2 years; and

"(4) a requirement that all such personnel report to the applicable inspector general and agency trafficking in persons point of contact any suspected cases of misconduct, waste, fraud, or abuse relating to trafficking in persons.

"(d) Timing.—The policy described in subsection (c)—

"(1) shall be established or integrated into all applicable employee codes of conduct not later than 18 months after the date of the enactment of this Act [Jan. 5, 2023];

"(2) may not replace any preexisting code of conduct that contains more robust requirements than the requirements described in subsection (c); and

"(3) shall be signed by all personnel described in subsection (c) not later than 2 years after such date of enactment.

"(e) Reporting.—The Office of Inspector General of a Federal department or agency, in consultation with the head of such agency, shall submit an annual report to Congress, which shall be publicly accessible, containing—

"(1) the number of suspected violations reported;

"(2) the number of investigations;

"(3) the status and outcomes of such investigations; and

"(4) any recommended actions to improve the programs and operations of such agency."

Optional Participation of Federal Employees in AIDS Training Programs

Pub. L. 104–146, §9, May 20, 1996, 110 Stat. 1373, provided that:

"(a) In General.—Notwithstanding any other provision of law, a Federal employee may not be required to attend or participate in an AIDS or HIV training program if such employee refuses to consent to such attendance or participation, except for training necessary to protect the health and safety of the Federal employee and the individuals served by such employees. An employer may not retaliate in any manner against such an employee because of the refusal of such employee to consent to such attendance or participation.

"(b) Definition.—As used in subsection (a), the term 'Federal employee' has the same meaning given the term 'employee' in section 2105 of title 5, United States Code, and such term shall include members of the armed forces."

Experimental Program Relating to Acceptance of Voluntary Services From Participants in Executive Exchange Program

Pub. L. 101–416, §1, Oct. 12, 1990, 104 Stat. 902, authorized a 90-day extension of programs established under Pub. L. 99–424 for individuals who were participating in the program on the expiration date.

Pub. L. 99–424, Sept. 30, 1986, 100 Stat. 964, as amended by Pub. L. 101–87, Aug. 16, 1989, 103 Stat. 595, authorized President to establish an experimental program, to be conducted during fiscal years 1987 through 1990, under which voluntary services could be accepted by the Government, without regard to 31 U.S.C. 1342.

Executive Documents

Department of Homeland Security

Exception from provisions of subsec. (a)(1) of this section of those elements of the Department of Homeland Security that are supervised by the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection through the Department's Assistant Secretary for Information Analysis, see Ex. Ord. No. 13286, §86, Feb. 28, 2003, 68 F.R. 10632, set out as a note under section 111 of Title 6, Domestic Security.

Central Intelligence Agency

Exception of Central Intelligence Agency from certain provisions of subsec. (a)(1) of this section, see Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, set out as a note under section 4102 of this title.

Ex. Ord. No. 11348. Further Training of Government Employees

Ex. Ord. No. 11348, Apr. 20, 1967, 32 F.R. 6335, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:

By virtue of the authority vested in me by section 301 of Title 3 of the United States Code and by section 2 of the Act of July 7, 1958 (72 Stat. 327), it is ordered as follows:

Part I—General

Section 101. (a) As used in this order, the terms "agency", "employee", "Government", and "training", have meanings given to those terms, respectively, by section 4101 of Title 5, United States Code.

(b) "Interagency training" means training provided by one agency for other agencies or shared by two or more agencies.

Sec. 102. It is the policy of the Government of the United States to develop its employees through the establishment and operation of progressive and efficient training programs, thereby improving public service, increasing efficiency and economy, building and retaining a force of skilled and efficient employees, and installing and using the best modern practices and techniques in the conduct of the Government's business.

Sec. 103. The Office of Personnel Management shall provide leadership and guidance to insure that the policy set forth in section 102 is carried out.

Part II—Office of Personnel Management Responsibilities

Sec. 201. The Office of Personnel Management shall plan and promote the development, improvement, coordination, and evaluation of training in accordance with chapter 41 of Title 5, United States Code, and with the policy set forth in section 102 of this order.

Sec. 202. In carrying out its responsibilities under chapter 41 of Title 5, United States Code, and section 201 of this order, the Office shall:

(a) Advise the President on means for furthering and strengthening programs of training;

(b) Counsel heads of agencies and other agency officials on the improvement of training;

(c) Assist agencies to develop sound programs and financial plans for training and provide advice, information, and assistance to agencies on planning, programming, budgeting, operating, and evaluating training programs;

(d) Identify functional areas in which new or expanded interagency training activity is needed and either conduct such training or arrange for agencies having the substantive competence to do so;

(e) Coordinate interagency training conducted by and for agencies (including agencies and portions of agencies excepted by section 4102(a) of Title 5, United States Code);

(f) Encourage agencies to make appropriate use of non-Government training resources;

(g) Develop, install, and maintain a system to provide the training data needed to carry out its own functions and to provide staff assistance to the President; and

(h) Provide for identification and dissemination of findings of research into training technology and undertake or assign to other agencies, such research projects as may be needed.

Part III—Agency Responsibilities and Operations

Sec. 301. The head of each agency shall plan, program, budget, operate, and evaluate training programs in accordance with chapter 41 of Title 5, United States Code, and with the policy set forth in section 102 of this order.

Sec. 302. The head of each agency shall:

(a) Foster employee self-development by creating a work environment in which self-development is encouraged, by assuring that opportunities for training and self-study materials are reasonably available, where the employee is stationed, and by recognizing self-initiated improvement in performance;

(b) Provide training for employees without regard to race, creed, color, national origin, sex, or other factors unrelated to the need for training;

(c) Establish and make full use of agency facilities for training employees;

(d) Extend agency training programs to employees of other agencies (including agencies and portions of agencies excepted by section 4102(a) of Title 5, United States Code) and assign his employees to interagency training whenever this will result in better training, improved service, or savings to the Government;

(e) Establish interagency training facilities in areas of substantive competence as arranged by the Office of Personnel Management; and

(f) Use non-Government training resources as appropriate.

Sec. 303. In carrying out his responsibilities, the head of each agency shall, consonant with chapter 41 of Title 5, United States Code, this order, and regulations of the Office of Personnel Management:

(a) Review periodically, but not less often than annually, the agency's program to identify training needed to bring about more effective performance at the least possible cost;

(b) Conduct periodic reviews of individual employee's training needs as related to program objectives;

(c) Conduct research related to training objectives and required for program improvement and effectiveness;

(d) Plan, program, and evaluate training for both short and longrange program needs by occupations, organizations, or other appropriate groups;

(e) Establish priorities for needed training, and provide for the use of funds and manhours in accordance with these priorities;

(f) Utilize the flexibility of work assignments to provide work experience which promotes growth leading to higher quality and greater quantity of work done;

(g) Establish training facilities and services as needed;

(h) Monitor the effectiveness with which self-development is encouraged and on-the-job training is provided at all levels; and

(i) Establish criteria for the selection of employees for training; and

(j) Approve the acceptance of any contributions, awards, or payments to employees authorized by section 401(b) of this order and regulations issued by the Office of Personnel Management.

Part IV—Delegations

Sec. 401. The following functions vested in the President are hereby delegated to the Office of Personnel Management:

(a) The authority under section 4102(b)(1) of Title 5, United States Code, to designate any agency or part thereof, or any employee or employees therein, as excepted from any provision of chapter 41, of Title 5, United States Code, other than sections 4102, 4111(b), and 4112; and to designate any such agency or part thereof, or any employee or employees therein previously excepted, as again subject to chapter 41 of Title 5, United States Code, or any provision of that chapter.

(b) The authority under section 4111(a) of Title 5, United States Code, to fix by regulation the extent to which the contributions, awards, and payments referred to in that section may be made to and accepted by employees.

Sec. 402. The authority vested in the President by section 4101(6)(B) of Title 5, United States Code, to designate a foreign government or international organization or instrumentality of either as eligible to provide training, is hereby delegated to the head of each agency for his employees except that each such designation shall be made only after the agency head concerned has obtained and given due consideration to the advice of the Department of State thereon prior to the first use of such training facility and thereafter periodically but not less often than once every three years.

Part V—Revocation of Prior Order

Sec. 501. Executive Order No. 10800 of January 15, 1959, is hereby revoked.

Executive Order No. 11451

Ex. Ord. No. 11451, Jan. 19, 1969, 34 F.R. 921, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, which established the President's Commission on Personnel Interchange, was superseded by Ex. Ord. No. 12136, May 15, 1979, 44 F.R. 28771, formerly set out below.

Executive Order No. 12136

Ex. Ord. No. 12136, May 15, 1979, 44 F.R. 28771, which continued the President's Commission on Personnel Interchange and renamed it the President's Commission on Executive Exchange, was revoked by Ex. Ord. No. 12493, Dec. 5, 1984, 49 F.R. 47819, formerly set out below.

Executive Order No. 12493

Ex. Ord. No. 12493, Dec. 5, 1984, 49 F.R. 47819, as amended by Ex. Ord. No. 12516, May 21, 1985, 50 F.R. 21417; Ex. Ord. No. 12602, July 15, 1987, 52 F.R. 27187, which continued the President's Commission on Executive Exchange, was revoked by Ex. Ord. No. 12760, §2, May 2, 1991, 56 F.R. 21062, set out below.

Ex. Ord. No. 12574. Establishing Experimental Program Within President's Commission on Executive Exchange

Ex. Ord. No. 12574, Nov. 20, 1986, 51 F.R. 42199, provided:

By the authority vested in me as President by the Constitution and statutes of the United States of America, including the Executive Exchange Program Voluntary Services Act of 1986 (5 U.S.C. 4103 note, 100 Stat. 964), it is hereby ordered as follows:

Section 1. Establishment of the Program. Effective October 1, 1986, there is established, within the Executive Exchange Program of the President's Commission on Executive Exchange, an experimental program under which Executive agencies of the government may accept voluntary services for the United States from private sector participants in the Executive Exchange Program.

Sec. 2. Program Limits. The experimental program shall be conducted during the fiscal years 1987 through 1989, and not more than ten individuals may commence participation in the program during any fiscal year. Acceptance of voluntary services from such individuals may not result in the displacement of any employee of the government.

Sec. 3. Participant Restrictions. An individual participating in the experimental program shall be considered an employee of the agency to which assigned for purposes of any laws, rules, and regulations of the United States, except that such individual shall not be covered by chapters 51, 53, 63, 83, 87, or 89 of title 5, United States Code, or any comparable provisions relating to classification, pay, leave, retirement, life insurance, or health benefits for employees of the government.

Ronald Reagan.      

Ex. Ord. No. 12760. President's Commission on Executive Exchange

Ex. Ord. No. 12760, May 2, 1991, 56 F.R. 21062, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. The President's Commission on Executive Exchange is hereby abolished. The Director of the Office of Personnel Management shall be responsible for terminating the functions of the Commission, which shall be completed no later than September 30, 1991.

Sec. 2. Executive Order No. 12493 of December 5, 1984 is revoked.

George Bush.      

Ex. Ord. No. 13111. Using Technology To Improve Training Opportunities for Federal Government Employees

Ex. Ord. No. 13111, Jan. 12, 1999, 64 F.R. 2793, as amended by Ex. Ord. No. 13188, Jan. 12, 2001, 66 F.R. 5419; Ex. Ord. No. 13218, §3(a), June 20, 2001, 66 F.R. 33628; Ex. Ord. No. 13316, §3(a), Sept. 17, 2003, 68 F.R. 55255, provided:

Advances in technology and increased skills needs are changing the workplace at an ever increasing rate. These advances can make Federal employees more productive and provide improved service to our customers, the American taxpayers. We need to ensure that we continue to train Federal employees to take full advantage of these technological advances and to acquire the skills and learning needed to succeed in a changing workplace. A coordinated Federal effort is needed to provide flexible training opportunities to employees and to explore how Federal training programs, initiatives, and policies can better support lifelong learning through the use of learning technology.

To help us meet these goals, I am creating a task force on Federal training technology, directing Federal agencies to take certain steps to enhance employees' training opportunities through the use of training technology, and an advisory committee on the use of training technology, which also will explore options for financing the training and post-secondary education needed to upgrade skills and gain new knowledge.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Advisory Committee Act, as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], and in furtherance of the purposes of Chapter 41 of title 5, United States Code, the Government Employees Training Act of 1958 (Public Law 85–507 [see Tables for classification]), as amended, and Executive Order 11348, "Providing for the Further Training of Government Employees," [set out above] and in order to make effective use of technology to improve training opportunities for Federal Government employees, it is ordered as follows:

Section 1. Establishment of the President's Task Force on Federal Training Technology. (a) The "President's Task Force on Federal Training Technology" (Task Force) is established. The Task Force shall provide leadership regarding the effective use of technology in training and education; make training opportunities an integral part of continuing employment in the Federal Government; and facilitate the ongoing coordination of Federal activities concerning the use of technology in training. The Task Force shall consist of the heads of the following departments and agencies or their representatives: the Departments of State, the Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, and Education; the Office of Personnel Management, General Services Administration, Environmental Protection Agency, National Aeronautics and Space and Administration, Small Business Administration, and Social Security Administration; a representative from the Small Agency Council; and representatives from other relevant agencies and related Federal councils, as determined by the Chair and Vice Chair of the Task Force.

(b) Within 30 days of the date of this order, the head of each agency or council shall designate a senior official to serve as a representative to the Task Force. The representative shall report directly to the agency head or the President's Management Council member on the agency's or council's activities under this order.

(c) The Director of the Office of Personnel Management (OPM) shall be the Chair and the representative from the Department of Labor shall be the Vice Chair of the Task Force.

(d) The Chair and Vice Chair shall appoint an Executive Director.

(e) The Task Force member agencies shall provide any required staffing and funding, as appropriate.

Sec. 2. Duties of the Task Force. (a) Within 18 months of the date of this order, the Task Force shall develop and recommend to the President, through the Assistant to the President for Economic Policy and the Assistant to the President for Science and Technology, a policy to make effective use of technology to improve training opportunities for Federal Government employees. The policy should promote and integrate the effective use of training technologies to create affordable and convenient training opportunities to improve Federal employee performance. The Task Force shall seek the views of experts from industry, academia, and State and local governments as the Task Force proceeds, as appropriate. Specifically, the Task Force shall:

(1) develop strategies to improve the efficiency and availability of training opportunities for Federal Government employees;

(2) form partnerships among key Federal agencies, State and local governments, businesses, universities, and other appropriate entities to promote the development and use of high-quality training opportunities;

(3) analyze the use of technology in existing training programs and policies of the Task Force member agencies to determine what changes, modifications, and innovations may be necessary to advance training opportunities;

(4) in consultation with the Department of Defense and the National Institute of Standards and Technology, recommend standards for training software and associated services purchased by Federal agencies and contractors. These standards should be consistent with voluntary industry consensus-based commercial standards. Agencies, where appropriate, should use these standards in procurements to promote reusable training component software and thereby reduce duplication in the development of courseware;

(5) evaluate and, where appropriate, coordinate and collaborate on, research and demonstration activities of Task Force member agencies related to Federal training technology;

(6) identify and support cross-agency training areas that would particularly benefit from new instructional technologies and facilitate multiagency procurement and use of training materials, where appropriate;

(7) in consultation with the General Services Administration, the Office of Personnel Management, and the Office of Federal Procurement Policy of the Office of Management and Budget (OFPP), promote existing and new procurement vehicles that allow agencies to provide innovative training opportunities for Federal employees;

(8) recommend changes that may be needed to existing procurement laws to further the objectives of this order and forward the recommendations to the Administrator of OFPP; and

(b) develop options and recommendations for establishing a Federal Individual Training Account for each Federal worker for training relevant to his or her Federal employment. To the extent permitted by law, such accounts may be established with the funds allocated to the agency for employee training. Approval for training would be within the discretion of the individual employee's manager. Options and recommendations shall be reported no later than 6 months from the date of this order.

Sec. 3. Duties of All Federal Agencies. (a) Each Federal agency shall, to the extent permitted by law:

(1) include as part of its annual budget process a set of goals to provide the highest quality and most efficient training opportunities possible to its employees, and a set of performance measures of the quality and availability of training opportunities possible to its employees. Such measures should be, where appropriate, based on outcomes related to performance rather than time allocation;

(2) identify the resources necessary to achieve the aforementioned goals and performance measures articulated in its annual performance plan;

(3) and, where practicable, use the standards recommended by the Task Force and published by the Office of Personnel Management for purchasing training software and associated services; and

(4) subject to the availability of appropriations, post training courses, information, and other learning opportunities on the Department of Labor's America's Learning Exchange (ALX), or other appropriate information dissemination vehicles as determined by the Task Force, to make information about Federal training courses, information, and other learning opportunities widely available to Federal employees.

(b) Each Federal agency, to the extent permitted by law, is encouraged to consider how savings achieved through the efficient use of training technology can be reinvested in improved training for their employees.

Sec. 4. Duties of Specific Federal Agencies. (a) In light of the Office of Personnel Management's responsibility for developing Government-wide training policy, coordinating and managing training policy programs, and providing technical assistance to Federal agencies, the Office of Personnel Management or other appropriate agency as determined by the Task Force shall:

(1) in consultation with the Task Force, the Department of Defense, the National Institute of Standards and Technology, the Department of Labor, and other appropriate agencies as determined by OPM, publish the standards for training software and associated services recommended by the Task Force; and

(2) ensure that qualification standards for civil service positions, where appropriate, reflect standard industry certification practices.

(b) The Department of Labor or other appropriate agency as determined by the Task Force shall, subject to the availability of appropriations:

(1) establish a specialized database for Federal training within the framework of the Department of Labor's ALX, or other appropriate information dissemination vehicles determined by the Task Force, to make information about Federal training courses, information, and other learning opportunities widely available to Federal employees;

(2) establish and maintain a training technology website for agencies to post training needs and to foster communication among the agencies and between public and private sector organizations to identify and meet common needs; and

(3) establish a staffed help desk and technology resource center to support Federal agencies using training technology and to facilitate the development of online training courses.

(c) The Department of Defense or other appropriate agency as determined by the Task Force shall:

(1) in consultation with the National Institute of Standards and Technology, lead Federal participation in business and university organizations charged with developing consensus standards for training software and associated services and lead the Federal review of the standards; and

(2) provide guidance to Defense agencies and advise the civilian agencies, as appropriate, on how best to use these standards for large-scale development and implementation of efficient and effective distributed learning technologies.

(d) Each Executive department shall designate at least one subject area of training that it will use to demonstrate opportunities in technology-based training and assign an agency leader in the designated area. Leaders in these training technology experiments shall work closely with other agencies with similar training interests. Each Executive department shall develop a plan for measuring and evaluating the effectiveness, cost-effectiveness, and benefits to employees and the agency for each designated subject area.

[Secs. 5 to 7. Revoked by Ex. Ord. No. 13316, §3(a), Sept. 17, 2003, 68 F.R. 55255, eff. Sept. 30, 2003.]

Sec. 8. Definitions. (a) As used in this order, the terms "agency," "employee," "Government," and "training" have the meaning given to those terms, respectively, by section 4101 of title 5, United States Code.

(b) The term "technology," means any equipment or interconnected system or subsystem of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information, including computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. For purposes of the preceding sentence, equipment is used by an Executive agency if the equipment is used by the Executive agency directly or is used by a contractor under a contract with the Executive agency that requires the use of such equipment. The term "technology" does not include any equipment that is acquired by a Federal contractor incidental to a Federal contract.

Sec. 9. Judicial Review. This order does not create any enforceable rights against the United States, its agencies, its officers, or any person.

Executive Order No. 13950

Ex. Ord. No. 13950, Sept. 22, 2020, 85 F.R. 60683, which prohibited certain workplace training relating to race and gender in the Federal workforce, Uniformed Services, and Federal contractors, was revoked by Ex. Ord. No. 13985, §10(a), Jan. 20, 2021, 86 F.R. 7012, set out in a note under section 601 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 434.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2307.	July 7, 1958, Pub. L. 85–507, §8, 72 Stat. 331.

In paragraph (2), the words "other agencies in any branch of the Government" and "the other agencies" are coextensive with and substituted for "other departments, and with other agencies in any branch of the Government" and "such other departments and agencies". This is so because "other agencies in any branch of the Government" is broader than "agency" as defined for the purpose of this chapter in section 4101(1).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§4105. Non-Government facilities; use of

The head of an agency, without regard to section 6101(b) to (d) 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 434; Pub. L. 103–226, §2(a)(3), Mar. 30, 1994, 108 Stat. 111; Pub. L. 111–350, §5(a)(7), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2308.	July 7, 1958, Pub. L. 85–507, §9, 72 Stat. 331.

In subsection (a), the word "appropriate" is omitted as unnecessary.

In subsection (b)(1), the words "by, in, and through non-Government facilities" are omitted as unnecessary in view of the previous reference in the subsection.

In subsection (b)(2), the word "appropriate" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2011—Pub. L. 111–350 substituted "section 6101(b) to (d) of title 41" for "section 5 of title 41".

1994—Pub. L. 103–226 struck out subsec. (a) designation and subsecs. (b) and (c), which read as follows:

"(b) An agency program for the training of employees by, in, and through non-Government facilities under this chapter shall—

"(1) 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

"(2) give consideration to the needs and requirements of the agency in recruiting and retaining scientific, professional, technical, and administrative employees.

"(c) In order to protect the Government concerning payment and reimbursement of training expenses, each agency shall prescribe such regulations as it considers necessary to implement the regulations prescribed under section 4118(a)(8) of this title."

[§4106. Repealed. Pub. L. 103–226, §2(a)(4), Mar. 30, 1994, 108 Stat. 112]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 434; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224, related to limitations on amount of training of employees through non-Government facilities.

§4107. Academic degree training

(a) Subject to subsection (b), an agency may select and assign an employee to academic degree training and may pay or reimburse the costs of academic degree training from appropriated or other available funds if such training—

(1) contributes significantly to—

(A) meeting an identified agency training need;

(B) resolving an identified agency staffing problem; or

(C) accomplishing goals in the strategic plan of the agency;

(2) is part of a planned, systemic, and coordinated agency employee development program linked to accomplishing the strategic goals of the agency; and

(3) is accredited and is provided by a college or university that is accredited by a nationally recognized body.

(b) In exercising authority under subsection (a), an agency shall—

(1) consistent with the merit system principles set forth in paragraphs (2) and (7) of section 2301(b), take into consideration the need to—

(A) maintain a balanced workforce in which women, members of racial and ethnic minority groups, and persons with disabilities are appropriately represented in Government service; and

(B) provide employees effective education and training to improve organizational and individual performance;

(2) assure that the training is not for the sole purpose of providing an employee an opportunity to obtain an academic degree or qualify for appointment to a particular position for which the academic degree is a basic requirement;

(3) assure that no authority under this subsection is exercised on behalf of any employee occupying or seeking to qualify for—

(A) a noncareer appointment in the senior Executive Service; or

(B) appointment to any position that is excepted from the competitive service because of its confidential policy-determining, policy-making or policy-advocating character; and

(4) to the greatest extent practicable, facilitate the use of online degree training.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 435; Pub. L. 101–510, div. A, title XII, §1206(a), Nov. 5, 1990, 104 Stat. 1659; Pub. L. 103–226, §2(a)(5), Mar. 30, 1994, 108 Stat. 112; Pub. L. 106–398, §1 [[div. A], title XI, §1121], Oct. 30, 2000, 114 Stat. 1654, 1654A-315; Pub. L. 107–296, title XIII, §1331(a), Nov. 25, 2002, 116 Stat. 2298.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 2313.	July 7, 1958, Pub. L. 85–507, §14, 72 Stat. 334.
(b)	5 U.S.C. 2318(d).	July 7, 1958, Pub. L. 85–507, §19(d), 72 Stat. 336.
(c)	5 U.S.C. 2312.	July 7, 1958, Pub. L. 85–507, §13, 72 Stat. 334.

The prohibitions are restated in positive form.

In subsection (a)(2), the words "Executive order" are substituted for "Executive orders of the President".

In subsection (c), the words "under authority of this chapter" and "by the Government" are omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2002—Pub. L. 107–296 amended section catchline and text generally, substituting provisions authorizing selection and assignment of employees for academic degree training and payment or reimbursement of costs, for provisions relating to restrictions on degree training or the payment or reimbursement of the costs of training and provisions setting forth exceptions and special rules with respect to employees of the Department of Defense.

2000—Subsec. (a). Pub. L. 106–398, §1 [[div. A], title XI, §1121(1)], substituted "subsections (b) and (c)" for "subsection (b)" in introductory provisions.

Subsec. (b)(1). Pub. L. 106–398, §1 [[div. A], title XI, §1121(2)], substituted "subsection (a) or (c)" for "subsection (a)".

Subsec. (c). Pub. L. 106–398, §1 [[div. A], title XI, §1121(3)], added subsec. (c).

1994—Pub. L. 103–226, §2(a)(5)(A), substituted "Restriction on degree training" for "Non-Government facilities; restrictions" in section catchline.

Subsec. (a). Pub. L. 103–226, §2(a)(5)(B), (C), redesignated subsec. (c) as (a), in introductory provisions substituted "subsection (b)" for "subsection (d)" and struck out "by, in, or through a non-Government facility" after "employee for training", and struck out former subsec. (a) which read as follows: "Appropriations or other funds available to an agency are not available for payment for training an employee—

"(1) by, in or through a non-Government facility which teaches or advocates the overthrow of the Government of the United States by force or violence; or

"(2) by or through an individual concerning whom determination has been made by a proper Government administrative or investigatory authority that, on the basis of information or evidence developed in investigations and procedures authorized by law or Executive order, there exists a reasonable doubt of his loyalty to the United States."

Subsec. (b). Pub. L. 103–226, §2(a)(5)(B), (D), redesignated subsec. (d) as (b), substituted "subsection (a)" for "subsection (c)" in par. (1), and struck out former subsec. (b) which read as follows: "This chapter does not authorize training an employee by, in, or through a non-Government facility a substantial part of the activities of which is—

"(1) carrying on propaganda, or otherwise attempting, to influence legislation; or

"(2) participating or intervening, including publishing or distributing statements, in a political campaign on behalf of a candidate for public office."

Subsecs. (c), (d). Pub. L. 103–226, §2(a)(5)(B), redesignated subsecs. (c) and (d) as (a) and (b), respectively.

1990—Subsec. (c). Pub. L. 101–510, §1206(a)(1), substituted "Except as provided in subsection (d) of this section, this" for "This" in introductory provisions.

Subsec. (d). Pub. L. 101–510, §1206(a)(2), added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 435; Pub. L. 98–224, §5(a), Mar. 2, 1984, 98 Stat. 48; Pub. L. 103–226, §2(a)(6), Mar. 30, 1994, 108 Stat. 112; Pub. L. 107–347, title II, §209(g)(1)(B), Dec. 17, 2002, 116 Stat. 2932.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2310.	July 7, 1958, Pub. L. 85–507, §11, 72 Stat. 332.

In subsection (a), the last sentence of former section 2310(a) is omitted as included in the first sentence of the revised subsection.

In subsection (b), the words, "another agency in any branch of the Government" are coextensive with and substituted for "another department or of any other agency in any branch of the Government". This is so because "agency in any branch of the Government" is broader than "agency" as defined for the purpose of this chapter in section 4101(1).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2002—Subsec. (d). Pub. L. 107–347 struck out subsec. (d) which read as follows: "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."

1994—Subsec. (a). Pub. L. 103–226 substituted "for more than a minimum period prescribed by the head of the agency" for "by, in, or through a non-Government facility under this chapter".

1984—Subsec. (d). Pub. L. 98–224 added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–347 effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as an Effective Date note under section 3601 of Title 44, Public Printing and Documents.

Department of Homeland Security

Exception from provisions of this section of those elements of the Department of Homeland Security that are supervised by the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection through the Department's Assistant Secretary for Information Analysis, see Ex. Ord. No. 13286, §86, Feb. 28, 2003, 68 F.R. 10632, set out as a note under section 111 of Title 6, Domestic Security.

Central Intelligence Agency

Exception of Central Intelligence Agency from provisions of this section, see Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, set out as a note under section 4102 of this title.

§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 405 and 452 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 452 and 453(c) 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 436; Pub. L. 90–83, § 1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 96–54, §2(a)(19), Aug. 14, 1979, 93 Stat. 382; Pub. L. 97–258, §3(a)(9), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 97–276, §151(a), Oct. 2, 1982, 96 Stat. 1200; Pub. L. 98–224, §5(b)(2), Mar. 2, 1984, 98 Stat. 48; Pub. L. 98–525, title XV, §1537(a), Oct. 19, 1984, 98 Stat. 2635; Pub. L. 102–378, §2(17), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 105–277, div. A, §101(h) [title VI, §628(c)], Oct. 21, 1998, 112 Stat. 2681–480, 2681-521; Pub. L. 112–81, div. A, title VI, §631(f)(4)(B), Dec. 31, 2011, 125 Stat. 1465; Pub. L. 112–239, div. A, title X, §1076(a)(9), Jan. 2, 2013, 126 Stat. 1948; Pub. L. 117–263, div. A, title VI, §626(b)(1), Dec. 23, 2022, 136 Stat. 2628.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2309.	July 7, 1958, Pub. L. 85–507, §10, 72 Stat. 332.

In subsection (a)(1) and (2), the words "training under this chapter" and "the training" are substituted for "training by, in, or through Government facilities or non-Government facilities under authority of this chapter" and "such training", respectively.

In subsection (a)(2)(A), the words "and the Standardized Government Travel Regulations" are omitted as included by the reference to "subchapter I of chapter 57 of this title".

In subsection (a)(2)(A) and (B), the words "sections 404 and 405 of title 37" and "sections 406 and 409 of title 37" are substituted for the references to "section 253 of title 37" on authority of section 12(b) of the Act of Sept. 7, 1962, Pub. L. 87–649, 76 Stat. 497.

In subsection (a)(2)(B), the words "under section 5724 of this title" are substituted for "in accordance with section 73b–1 of this title, and Executive Order Numbered 9805, as amended" to reflect the codification of former section 73b–1 in this title and in view of the revocation of Executive Order No. 9805 by Executive Order No. 11012 of Mar. 27, 1962. The reference only to section 5724 is sufficient since that section contains the applicable substantive law, including the authority of the President to prescribe regulations.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

2022—Subsec. (a)(2)(A). Pub. L. 117–263, §626(b)(1)(A), substituted "sections 405 and 452" for "sections 474 and 475".

Subsec. (a)(2)(B). Pub. L. 117–263, §626(b)(1)(B), substituted "sections 452 and 453(c)" for "sections 476 and 479".

2013—Subsec. (a)(2)(A), (B). Pub. L. 112–239, §1076(a)(9), made technical amendment to directory language of Pub. L. 112–81, §631(f)(4)(B). See 2011 Amendment note below.

2011—Subsec. (a)(2)(A), (B). Pub. L. 112–81, §631(f)(4)(B), as amended by Pub. L. 112–239, §1076(a)(9), substituted "474" for "404" and "475" for "405" in subpar. (A), and "476" for "406" and "479" for "409" in subpar. (B).

1998—Subsec. (d). Pub. L. 105–277 added subsec. (d).

1992—Subsec. (d). Pub. L. 102–378 struck out subsec. (d) which made revolving fund referred to in section 1304(e)(1) of this title available for costs of education and related travel of participants in such program, for printing, and for entertainment expenses, and which required crediting of participation fees to revolving fund.

1984—Subsec. (c). Pub. L. 98–525 inserted "and the Secretary of Defense may pay an individual training to be an air traffic controller of the Department of Defense,".

Subsec. (d). Pub. L. 98–224 added subsec. (d).

1982—Subsec. (a)(2). Pub. L. 97–258 substituted "section 3324(a) and (b)" for "section 529".

Subsec. (c). Pub. L. 97–276 added subsec. (c).

1979—Subsec. (a)(2). Pub. L. 96–54 substituted "National Oceanic and Atmospheric" for "Environmental Science Services" in cls. (A) and (B).

1967—Subsec. (a)(2). Pub. L. 90–83 substituted "Environmental Science Services Administration" for "Coast and Geodetic Survey" in cls. (A) and (B). See Historical and Revision Notes under section 2101 of this title.

Statutory Notes and Related Subsidiaries

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(9) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.

Effective Date of 1998 Amendment

Pub. L. 105–277, div. A, §101(h) [title VI, §628(e)], Oct. 21, 1998, 112 Stat. 2681–480, 2681-521, provided that: "The amendments made by this section [enacting section 5545b of this title and amending this section and sections 5542 and 8331 of this title] shall take effect on the first day of the first applicable pay period which begins on or after October 1, 1998."

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–378 effective Oct. 1, 1991, see section 9(b)(3) of Pub. L. 102–378, set out as a note under section 6303 of this title.

Effective Date of 1984 Amendment

Pub. L. 98–525, title XV, §1537(f), Oct. 19, 1984, 98 Stat. 2636, provided that: "The amendments made by this section [amending this section and sections 5532, 5546a, 5547, and 8344 of this title] shall take effect on October 1, 1984."

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–276 effective on first day of first applicable pay period beginning after Oct. 2, 1982, see section 151(h)(2) of Pub. L. 97–276, set out as an Effective Date note under section 5546a of this title.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Executive Documents

Department of Homeland Security

Exception from introductory provisions of subsec. (a) of this section of those elements of the Department of Homeland Security that are supervised by the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection through the Department's Assistant Secretary for Information Analysis, see Ex. Ord. No. 13286, §86, Feb. 28, 2003, 68 F.R. 10632, set out as a note under section 111 of Title 6, Domestic Security.

Central Intelligence Agency

Exception of Central Intelligence Agency from certain introductory provisions of subsec. (a) of this section, see Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, set out as a note under section 4102 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 436.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2318(b).	July 7, 1958, Pub. L. 85–507, §19(b), 72 Stat. 336.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 437; Pub. L. 96–54, §2(a)(2), Aug. 14, 1979, 93 Stat. 381.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 2318(a).	July 7, 1958, Pub. L. 85–507, §19(a), 72 Stat. 336.
(b)	5 U.S.C. 2318(c).	July 7, 1958, Pub. L. 85–507, §19(c), 72 Stat. 336.

In subsection (a), the words "section 209 of title 18" are substituted for "section 1914 of title 18" on authority of the Act of Oct. 23, 1962, Pub. L. 87–849, §2, 76 Stat. 1126.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1979—Subsec. (b). Pub. L. 96–54 substituted "President" for "Director of the Bureau of the Budget".

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Executive Documents

Transfer of Functions

Functions vested by law (including reorganization plan) in Bureau of the Budget or Director of Bureau of the Budget transferred to President by section 101 of 1970 Reorg. Plan No. 2, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085, set out in the Appendix to this title. Section 102 of 1970 Reorg. Plan No. 2, redesignated Bureau of the Budget as Office of Management and Budget.

Delegation of Functions

Functions of President under subsec. (a) of this section delegated to Office of Personnel Management, see section 401(b) of Ex. Ord. No. 11348, Apr. 20, 1967, 32 F.R. 6335, set out as a note under section 4103 of this title.

Functions of President under subsec. (b) of this section delegated to Director of Office of Management and Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R. 48143, set out as a note under section 301 of Title 3, The President.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 437; Pub. L. 96–54, §2(a)(2), Aug. 14, 1979, 93 Stat. 381.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2319.	July 7, 1958, Pub. L. 85–507, §23, 72 Stat. 338.

In subsection (a), the words "for each fiscal year" are substituted for "for the fiscal year in which this chapter is enacted and for each succeeding fiscal year".

In subsection (b), the prohibition is restated in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1979—Subsec. (a). Pub. L. 96–54 substituted "President" for "Director of the Bureau of the Budget".

Statutory Notes and Related Subsidiaries

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Executive Documents

Delegation of Functions

Functions of President under subsec. (a) of this section delegated to Director of Office of Management and Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R. 48143, set out as a note under section 301 of Title 3, The President.

[§4113. Repealed. Pub. L. 104–66, title II, §2181(c)(1), Dec. 21, 1995, 109 Stat. 732]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 437; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 103–226, §2(a)(7), Mar. 30, 1994, 108 Stat. 112, related to agency review of training needs and annual program reports.

[§4114. Repealed. Pub. L. 103–226, §2(a)(8), Mar. 30, 1994, 108 Stat. 112]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 438; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224, related to review of employee training programs at non-Government facilities.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 438; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2315.	July 7, 1958, Pub. L. 85–507, §16, 72 Stat. 335.

In the first sentence, the words "from time to time" are omitted as unnecessary. In the second sentence, the word "appropriate" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Executive Documents

Department of Homeland Security

Exception from provisions of this section of those elements of the Department of Homeland Security that are supervised by the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection through the Department's Assistant Secretary for Information Analysis, see Ex. Ord. No. 13286, §86, Feb. 28, 2003, 68 F.R. 10632, set out as a note under section 111 of Title 6, Domestic Security.

Central Intelligence Agency

Exception of Central Intelligence Agency from provisions of this section, see Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, set out as a note under section 4102 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 438; Pub. L. 95–454, title IX, §906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2316.	July 7, 1958, Pub. L. 85–507, §17, 72 Stat. 335.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 438; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2301(4).	July 7, 1958, Pub. L. 85–507, §2(4), 72 Stat. 328.
	5 U.S.C. 2318(e).	July 7, 1958, Pub. L. 85–507, §19(e), 72 Stat. 336.

Former sections 2301(4) and 2318(e) are combined and restated for clarity.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1978—Pub. L. 95–454 substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Executive Documents

Department of Homeland Security

Exception from provisions of this section of those elements of the Department of Homeland Security that are supervised by the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection through the Department's Assistant Secretary for Information Analysis, see Ex. Ord. No. 13286, §86, Feb. 28, 2003, 68 F.R. 10632, set out as a note under section 111 of Title 6, Domestic Security.

Central Intelligence Agency

Exception of Central Intelligence Agency from certain provisions of this section, see Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, set out as a note under section 4102 of this title.

§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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 438; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 103–226, §2(a)(9), Mar. 30, 1994, 108 Stat. 112.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2305.	July 7, 1958, Pub. L. 85–507, §6, 72 Stat. 329.

In subsection (a), the word "appropriate" is omitted as unnecessary. The words "with respect to training by, in, and through Government facilities and non-Government facilities" are omitted as unnecessary.

In subsection (b)(2) and (3), the words "by, in, or through a non-Government facility" are omitted as unnecessary in view of the previous reference in the subsection.

In subsection (c), the words "From time to time" are omitted as unnecessary.

In subsection (d), the prohibition is restated in positive form.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1994—Subsec. (a)(7). Pub. L. 103–226, §2(a)(9)(A), struck out before semicolon at end "by, in, and through non-Government facilities".

Subsecs. (b) to (d). Pub. L. 103–226, §2(a)(9)(B), (C), redesignated subsecs. (c) and (d) as (b) and (c), respectively, and struck out former subsec. (b) which read as follows: "In addition to the matters set forth by subsection (a) of this section, the regulations, concerning training of employees by, in, or through non-Government facilities, shall—

"(1) prescribe general policies governing the selection of a non-Government facility to provide training;

"(2) authorize training of employees only after the head of the agency concerned determines that adequate training for employees by, in, or through a Government facility is not reasonably available, and that consideration has been given to the existing or reasonably foreseeable availability and use of fully trained employees; and

"(3) prohibit training an employee for the purpose of filling a position by promotion if there is in the agency concerned another employee, of equal ability and suitability, fully qualified to fill the position and available at, or within a reasonable distance from, the place where the duties of the position are to be performed."

1978—Subsecs. (a), (c), (d). Pub. L. 95–454 substituted "Office of Personnel Management" and "Office" for "Civil Service Commission" and "Commission", respectively, wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Executive Documents

Department of Homeland Security

Exception from provisions of this section of those elements of the Department of Homeland Security that are supervised by the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection through the Department's Assistant Secretary for Information Analysis, see Ex. Ord. No. 13286, §86, Feb. 28, 2003, 68 F.R. 10632, set out as a note under section 111 of Title 6, Domestic Security.

Central Intelligence Agency

Exception of Central Intelligence Agency from provisions of this section, see Ex. Ord. No. 10805, Feb. 18, 1959, 24 F.R. 1301, set out as a note under section 4102 of this title.

§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.

(Added Pub. L. 97–346, §1(a), Oct. 15, 1982, 96 Stat. 1647.)

§4120. Training for employees of the Capitol Police

(a) The Chief of the Capitol Police may, by regulation, make applicable such provisions of this chapter as the Chief determines necessary to provide for training of employees of the Capitol Police. The regulations shall provide for training which, in the determination of the Chief, is consistent with the training provided by agencies under the preceding sections of this chapter.

(b) The Office of Personnel Management shall provide the Chief of the Capitol Police with such advice and assistance as the Chief may request in order to enable the Chief to carry out the purposes of this section.

(Added Pub. L. 108–7, div. H, title I, §1010(a), Feb. 20, 2003, 117 Stat. 360.)

§4121. Specific training programs

In consultation with the Office of Personnel Management, the head of each agency shall establish—

(1) a comprehensive management succession program to provide training to employees to develop managers for the agency; and

(2) a program to provide training to managers on actions, options, and strategies a manager may use in—

(A) relating to employees with unacceptable performance;

(B) mentoring employees and improving employee performance and productivity; and

(C) conducting employee performance appraisals.

(Added Pub. L. 108–411, title II, §201(b)(1), Oct. 30, 2004, 118 Stat. 2311.)

CHAPTER 43—PERFORMANCE APPRAISAL

SUBCHAPTER I—GENERAL PROVISIONS

        

        

SUBCHAPTER II—PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE

        

Editorial Notes

Amendments

1993—Pub. L. 103–89, §3(b)(1)(B)(ii), Sept. 30, 1993, 107 Stat. 981, struck out item 4302a "Establishment of performance appraisal systems for performance management and recognition system employees".

1984—Pub. L. 98–615, title II, §202(b), Nov. 8, 1984, 98 Stat. 3216, added item 4302a.

1978—Pub. L. 95–454, title II, §203(a), title IV, §405(b), Oct. 13, 1978, 92 Stat. 1131, 1170, in chapter heading substituted "APPRAISAL" for "RATING", added heading for subchapter I, in item 4302 substituted "Establishment of performance appraisal systems" for "Performance-rating plans; establishment of", in item 4303 substituted "Actions based on unacceptable performance" for "Performance-rating plans; requirements for", in item 4304 substituted "Responsibilities of Office of Personnel Management" for "Ratings for performance", in item 4305 substituted "Regulations" for "Review of ratings", struck out items 4306 to 4308 "Performance-rating plans; inspection of", "Other rating procedures prohibited", and "Regulations", respectively, and added item for subchapter II and items 4311 to 4315.

¹ So in original. Does not conform to section catchline.

SUBCHAPTER I—GENERAL PROVISIONS

Editorial Notes

Amendments

1979—Pub. L. 96–54, §2(a)(20), Aug. 14, 1979, 93 Stat. 382, added heading for subchapter I.

§4301. Definitions

Except as otherwise expressly provided, for the purpose of this subchapter—

(1) "agency" means—

(A) an Executive agency; and

(B) the Government Publishing Office;

but does not include—

(i) a Government corporation;

(ii) the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence 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 Government Accountability 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.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 91–375, §6(c)(8), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–251, §2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title II, §203(a), Oct. 13, 1978, 92 Stat. 1131; Pub. L. 100–325, §2(f), May 30, 1988, 102 Stat. 581; Pub. L. 101–474, §5(e), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 101–510, div. A, title XII, §1206(e), Nov. 5, 1990, 104 Stat. 1661; Pub. L. 102–54, §13(b)(2), June 13, 1991, 105 Stat. 274; Pub. L. 103–359, title V, §501(e), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, §1122(a)(1), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, §931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 115–91, div. A, title X, §1097(d)(4), Dec. 12, 2017, 131 Stat. 1621.)

Historical and Revision Notes

Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 2001.	Sept. 30, 1950, ch. 1123, §2, 64 Stat. 1098.
		Sept. 1, 1954, ch. 1208, §601(a), 68 Stat. 1115.
		June 17,