§ 3133. Authorization of positions; authority for appointment

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1978

   Pub. L. 95–454 title IV § 402(a) · 92 Stat. 1111

   Enacted · 5 U.S.C. § 3133

   Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1158

   Source evidence

   Code source credit
   Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1158

   Enacted provision · exact public law section
   (a) Chapter 31 of title 5, United States Code, is amended by inserting after section 3112 (as added by section 307(b) of this Act), the following new subchapter: Ante, p. 1147. “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. “§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 Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, as determined by the President, an Executive agency, or unit thereof, whose principal function; is the conduct of foreign intelligence or counterintelligence activities; “(2) ‘Senior Executive Service position’ means any position in an agency which is in GS–16, IT, or 18 of the General Schedule or in level IV or V of the Executive Schedule, or an 5 USC 5332 note. 5 USC 5315, 5316. 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; or “(iii) 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); 28 USC 509 note. “(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 bonafide, 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 Criteria and regulations. 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 Review. 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 5 USC 5311. 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 Ante, p. 1111. 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 Publication in Federal Register. 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 Application for exclusion coverage. 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 Exclusion or revocation. 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. “§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 Written request to OPM. request for a specific number of Senior Executive Service positions for each of such fiscal years. “(b) Each agency request submitted under subsection (a) of this section shall— “(1) be based on the anticipated type and extent of program activities and budget requests of the agency for each of the 2 fiscal years involved, and such other factors as may be prescribed from time to time by the Office; and “(2) identify, by position title, positions which are proposed to be designated as or removed from designation as career reserved positions, and set forth justifications for such proposed actions. “(c) The Office of Personnel Management, in consultation with the Office of Management and Budget, shall review the request of each agency and shall authorize, for each of the 2 fiscal years covered by requests required under subsection (a) of this section, a specific number of Senior Executive Service positions for each agency. “(d) (1) The Office of Personnel Management may, on a written request of an agency or on its own initiative, make an adjustment in the number of positions authorized for any agency. Each agency request under this paragraph shall be submitted in such form, and shall be based on such factors, as the Office shall prescribe. “(2) The total number of positions in the Senior Executive Service may not at any time during any fiscal year exceed 105 percent of the total number of positions authorized under subsection (c) of this section for such fiscal year. “(e) (1) Not later than July 1, 1979, and from time to time thereafter as the Director of the Office of Personnel Management finds appropriate, the Director shall establish, by rule issued in accordance with section 1103(b) of this title, the number of positions out of the Ante, p. 1119. 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 Post, p. 1175. 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. “§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 5 CFR 305.101 et seq. 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 5 USC 5315, 5316. 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. “§3135. Biennial report “(a) The Office of Personnel Management shall submit to each House Report to Congress. of the Congress, at the time the budget is submitted by the President to the Congress during each odd-numbered calendar year, a report on the Senior Executive Service. The report shall include— “(1) the number of Senior Executive Service positions authorized for the then current fiscal year, in the aggregate and by agency, and the projected number of Senior Executive Service positions to be authorized for the next two fiscal years, in the aggregate and by agency; “(2) the authorized number of career appointees and noncareer appointees, in the aggregate and by agency, for the then current fiscal year; “(3) the position titles and descriptions of Senior Executive Service positions designated for the then current fiscal year; “(4) a description of each exclusion in effect under section 3132(c) of this title during the preceding fiscal year; “(5) the number of career appointees, limited term appointees, limited emergency appointees, and noncareer appointees, in the aggregate and by agency, employed during the preceding fiscal year; “(6) the percentage of senior executives at each pay rate, in the aggregate and by agency, employed at the end of the preceding fiscal year; “(7) the distribution and amount of performance awards, in the aggregate and by agency, paid during the preceding fiscal year; “(8) the estimated number of career reserved positions which, during the two fiscal years following the then current fiscal year, will become general positions and the estimated number of general positions which during such two fiscal years, will become career reserved positions; and “(9) such other information regarding the Senior Executive Service as the Office considers appropriate. “(b) The Office of Personnel Management shall submit to each Report to Congress. House of the Congress, at the time the budget is submitted to the Congress during each even-numbered calendar year, an interim report showing changes in matters required to be reported under subsection (a) of this section. “§3136. Regulations “The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.”.

2. 2016

   National Defense Authorization Act for Fiscal Year 2017

   Pub. L. 114–328 div. A title XI § 1109(c) · 130 Stat. 2000

   Inserted · 5 U.S.C. § 3133(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.”

   Source evidence

   Code amendment note
   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.”

   Enacted provision · exact public law section
   (c) Conforming Amendment.— Section 3133(c) of title 5, United States Code, is amended by adding at the end the following new sentence: “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.”.

2 of 2 references resolved to an enrolled provision