§3132. Definitions and exclusions

(a) For the purpose of this subchapter-

(1) "agency" means an Executive agency, except a Government corporation and the General Accounting Office, but does not include-

(A) any agency or unit thereof excluded from coverage by the President under subsection (c) of this section; or

(B) the Federal Bureau of Investigation, the Drug Enforcement Administration, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10,,¹ and, as determined by the President, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities;

(C) the Federal Election Commission; or

(D) the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the Federal Housing Finance Board, the Resolution Trust Corporation, the Farm Credit Administration, the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development, and the National Credit Union Administration;

(2) "Senior Executive Service position" means any position in an agency which is classified above GS–15 pursuant to section 5108 or in level IV or V of the Executive Schedule, or an equivalent position, which is not required to be filled by an appointment by the President by and with the advice and consent of the Senate, and in which an employee-

(A) directs the work of an organizational unit;

(B) is held accountable for the success of one or more specific programs or projects;

(C) monitors progress toward organizational goals and periodically evaluates and makes appropriate adjustments to such goals;

(D) supervises the work of employees other than personal assistants; or

(E) otherwise exercises important policy-making, policy-determining, or other executive functions;

but does not include-

(i) any position in the Foreign Service of the United States; or

(ii) an administrative law judge position under section 3105 of this title;

(3) "senior executive" means a member of the Senior Executive Service;

(4) "career appointee" means an individual in a Senior Executive Service position whose appointment to the position or previous appointment to another Senior Executive Service position was based on approval by the Office of Personnel Management of the executive qualifications of such individual;

(5) "limited term appointee" means an individual appointed under a nonrenewable appointment for a term of 3 years or less to a Senior Executive Service position the duties of which will expire at the end of such term;

(6) "limited emergency appointee" means an individual appointed under a nonrenewable appointment, not to exceed 18 months, to a Senior Executive Service position established to meet a bona fide, unanticipated, urgent need;

(7) "noncareer appointee" means an individual in a Senior Executive Service position who is not a career appointee, a limited term appointee, or a limited emergency appointee;

(8) "career reserved position" means a position which is required to be filled by a career appointee and which is designated under subsection (b) of this section; and

(9) "general position" means any position, other than a career reserved position, which may be filled by either a career appointee, noncareer appointee, limited emergency appointee, or limited term appointee.

(b)(1) For the purpose of paragraph (8) of subsection (a) of this section, the Office shall prescribe the criteria and regulations governing the designation of career reserved positions. The criteria and regulations shall provide that a position shall be designated as a career reserved position only if the filling of the position by a career appointee is necessary to ensure impartiality, or the public's confidence in the impartiality, of the Government. The head of each agency shall be responsible for designating career reserved positions in such agency in accordance with such criteria and regulations.

(2) The Office shall periodically review general positions to determine whether the positions should be designated as career reserved. If the Office determines that any such position should be so designated, it shall order the agency to make the designation.

(3) Notwithstanding the provisions of any other law, any position to be designated as a Senior Executive Service position (except a position in the Executive Office of the President) which-

(A) is under the Executive Schedule, or for which the rate of basic pay is determined by reference to the Executive Schedule, and

(B) on the day before the date of the enactment of the Civil Service Reform Act of 1978 was specifically required under section 2102 of this title or otherwise required by law to be in the competitive service,

shall be designated as a career reserved position if the position entails direct responsibility to the public for the management or operation of particular government programs or functions.

(4) Not later than March 1 of each year, the head of each agency shall publish in the Federal Register a list of positions in the agency which were career reserved positions during the preceding calendar year.

(c) An agency may file an application with the Office setting forth reasons why it, or a unit thereof, should be excluded from the coverage of this subchapter. The Office shall-

(1) review the application and stated reasons,

(2) undertake a review to determine whether the agency or unit should be excluded from the coverage of this subchapter, and

(3) upon completion of its review, recommend to the President whether the agency or unit should be excluded from the coverage of this subchapter.

If the Office recommends that an agency or unit thereof be excluded from the coverage of this subchapter, the President may, on written determination, make the exclusion for the period determined by the President to be appropriate.

(d) Any agency or unit which is excluded from coverage under subsection (c) of this section shall make a sustained effort to bring its personnel system into conformity with the Senior Executive Service to the extent practicable.

(e) The Office may at any time recommend to the President that any exclusion previously granted to an agency or unit thereof under subsection (c) of this section be revoked. Upon recommendation of the Office, the President may revoke, by written determination, any exclusion made under subsection (c) of this section.

(f) If-

(1) any agency is excluded under subsection (c) of this section, or

(2) any exclusion is revoked under subsection (e) of this section,

the Office shall, within 30 days after the action, transmit to the Congress written notice of the exclusion or revocation.

(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 .)

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.

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

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,".

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 431 of Title 2, The Congress.

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.

Section Referred to in Other Sections

This section is referred to in sections 2101a, 3104, 3133, 3151, 3372, 3391, 3591, 4311, 4507, 4508, 5304, 5347, 5376, 5381, 5724, 7323, 8432, 9506 of this title; title 2 section 1316a; title 3 section 115; title 10 sections 1606, 1614, 3014, 5014, 8014; title 15 section 656; title 22 section 2664a; title 31 section 733; title 38 sections 308, 7281; title 42 section 904; title 44 section 2103; title 49 section 106.

¹ So in original.