fied, the board may also recommend that the career appointee's rate of basic pay be increased to a higher rate established under section 5382. If the board is recommending that the career appointee be conditionally recertified, the board may recommend that the career appointee's pay be reduced to the next lower rate established under section 5382. The board shall also provide to the appointing authority the recommendation and other information received under subsection (b).

(2) More than one-half of the members of a performance review board under this section shall consist of career appointees. The requirement of the preceding sentence shall not apply in any case in which the Office of Personnel Management determines that there exists an insufficient number of career appointees available to comply with the requirement.

(d)(1) If the appointing authority determines that the career appointee's performance during the preceding 3 years demonstrates the excellence expected of a senior executive, the appointing authority shall recommend to the head of the agency that the career appointee be recertified as a senior executive.

(2) If the appointing authority determines that the career appointee's performance has not demonstrated the excellence expected of a senior executive, the appointing authority shall recommend to the head of the agency that the career appointee be conditionally recertified as a senior executive or not be recertified as a senior executive.

(e)(1) If the head of the agency decides that the career appointee's performance warrants recertification as a senior executive, the career appointee shall continue in the Senior Executive Service. If a career appointee is recertified as a senior executive, the career appointee's rate of basic pay may not be reduced at the time of recertification.

(2) If the head of the agency decides that the career appointee's performance does not warrant full recertification, but does warrant conditional recertification, the career appointee—

(A) shall remain a career appointee in the Senior Executive Service;

(B) shall be subject to continuing close review of the career appointee's performance by the supervising official in coordination with an executive resources board established under section 3393, in accordance with a performance improvement plan developed by the supervising official and subject to the approval of the executive resources board;

(C) may, if the head of the agency so determines, be reduced to the next lower rate of basic pay established under section 5382; and (D) shall be removed from the Senior Executive Service if the career appointee is not recertified as a senior executive at the end of the 12-month period following the conditional recertification.

If, at the end of the 12-month period following the conditional recertification, the career appointee is recertified as a senior executive, any reduction that was made in the career appointee's rate of basic pay under subparagraph (C) shall be restored prospectively.

(3) If the head of the agency decides that the career appointee's performance does not demonstrate that the career appointee qualifies for recertification or conditional recertification as a senior executive, the career appointee shall be removed from the Senior Executive Service in accordance with section 3592.

(f) The Office of Personnel Management shall prescribe standards and procedures to ensure consistency and fairness for the process of recertification under this section.

(Added Pub. L. 101-194, title V, § 506(a)(1), Nov. 30, 1989, 103 Stat. 1756.)

EFFECTIVE DATE

Section effective Jan. 1, 1991, see section 506(d) of Pub. L. 101-194, set out as an Effective Date of 1989 Amendment note under section 3151 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3151, 3393, 3592, 3593, 3594, 7701, 8336, 8414 of this title; title 10 sections 1590, 1601; title 22 section 3945.

§ 3395. Reassignment and transfer within the Senior Executive Service

[See main edition for text of (a) to (d)] (e)(1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily reassigned

[See main edition for text of (A)]

(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.

[See main edition for text of (2)]

(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.

(As amended Pub. L. 102-175, § 3, Dec. 2, 1991, 105 Stat. 1222.)

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).

§ 3396. Development for and within the Senior Executive Service

[See main edition for text of (a) to (c)] (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

For the purpose of this chapter(1) "agency" means

[See main edition for text of (A) to (E)]

(F) the Office of the Architect of the Capitol; but does not include

[See main edition for text of (i) and (ii)]

(iii) the Virgin Islands Corporation;

[See main edition for text of (iv) to (vii), (2)] (As amended Pub. L. 102-378, § 2(15), Oct. 2, 1992, 106 Stat. 1347.)

AMENDMENTS

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.

§ 3405. Nonapplicability

[See main edition for text of (a)]

(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.

(As amended Pub. L. 101-509, title V, § 529 [title I, § 101(b)(9)(D)], Nov. 5, 1990, 104 Stat. 1427, 1441.)

AMENDMENTS

1990-Subsec. (b). Pub. L. 101-509 substituted "payable under section 5376" for "fixed for GS-16 of the General Schedule".

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.

CHAPTER 35-RETENTION PREFERENCE, RESTORATION, AND REEMPLOYMENT

SUBCHAPTER I-RETENTION

PREFERENCE

SUBCHAPTER REFERRED TO IN OTHER SECTIONS This subchapter is referred to in title 22 section 3964; title 42 section 237.

§ 3501. Definitions; application

(a) For the purpose of this subchapter, except section 3504

[See main edition for text of (1) and (2)]

(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

[See main edition for text of (i)]

(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;

[See main edition for text of (B) and (C); (b)] (As amended Pub. L. 102-83, § 5(c)(2), Aug. 6, 1991, 105 Stat. 406.)

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.

§ 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

[See main edition for text of (1) to (4)] In computing length of service, a competing employee

[See main edition for text of (A) and (B)]
(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, 1987, 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).

[See main edition for text of (b) and (c)] (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-

(1) the appropriate State dislocated worker unit or units (referred to in section 311(b)(2) of the Job Training Partnership Act); 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 the Job Training Partnership Act.

(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 the Job Training Partnership Act.

(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.

(As amended 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.)

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 Job Training Partnership Act, referred to in subsec. (d)(3), (4), is Pub. L. 97-300, Oct. 13, 1982, 96 Stat. 1322, as amended, which is classified generally to chapter 19 (§ 1501 et seq.) of Title 29, Labor. Section 311(b)(2) of the Act is classified to section 1661(b)(2) of Title 29. For complete classification of this Act to the Code, see Short Title note set out under section 1501 of Title 29 and Tables.

AMENDMENTS

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."

EFFECTIVE DATE OF 1992 AMENDMENT

Section 4433(a)(2) of Pub. L. 102-484 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 90day period beginning on the date of enactment of this Act [Oct. 23, 1992].”

"(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, 1998.

"(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."

Ex. ORD. NO. 12828. DELEGATION OF CERTAIN PERSONNEL MANAGEMENT AUTHORITIES

Ex. Ord. No. 12828, Jan. 5, 1993, 58 F.R. 2965, 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(1)(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. The Director of the Office of Management and Budget is designated and empowered to exercise, without the approval, ratification, or other action of the President, the authority of the President under 5 U.S.C. 5377(i)(2), as added by section 2(34) of Public Law 102-378, to designate one or more categories of positions within an agency to be treated as critical positions within the meaning of 5 U.S.C. 5377(a)(2). SEC. 3. This order shall be effective immediately. GEORGE BUSH.

SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 7512, 7521,
8351, 8433, 8435 of this title; title 10 section 1586; title
20 section 241; title 22 section 1438; title 25 section
472a; title 32 section 709.

SUBCHAPTER II-RESTORATION AFTER
ACTIVE DUTY OR TRAINING DUTY

§ 3592. Removal from the Senior Executive Service

(a) Except as provided in subsection (b) of this section, a career appointee may be removed from the Senior Executive Service to a civil service position outside of the Senior Executive Service

(1) during the 1-year period of probation under section 3393(d) of this title,

(2) at any time for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title, or

(3) if the career appointee is not recertified as a senior executive under section 3393a, except that in the case of a removal under paragraph (2) of this subsection the career appointee shall, at least 15 days before the removal, be entitled, upon request, to an informal hearing before an official designated by the Merit Systems Protection Board at which the career appointee may appear and present arguments, but such hearing shall not give the career appointee the right to initiate an action with the Board under section 7701 of this title, nor need the removal action be delayed as a result of the granting of such hearing. In the case of a removal under paragraph (3) of this subsection, the career appointee shall have the right to appeal the removal from the Senior Executive Service to the Merit Systems Protection Board under section 7701.

AMENDMENTS

[See main edition for text of (b) and (c)] (As amended Pub. L. 101-194, title V, § 506(b)(4), Nov. 30, 1989, 103 Stat. 1758.)

AMENDMENTS

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.

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.

§ 3594. Guaranteed placement in other personnel sys

tems

[See main edition for text of (a)]

(b) A career appointee who has completed the probationary period under section 3393(d) of this title, and who—

(1) is removed from the Senior Executive Service for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title;

(2) is removed from the Senior Executive Service under paragraph (4) or (5) of section 3595(b) of this title; or

(3) is removed from the Senior Executive Service for failure to be recertified under section 3393a;

shall be entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency.

(c)(1) For purposes of subsections (a) and (b) of this section

(A) the position in which any career appointee is placed under such subsections shall be a continuing position at GS-15 of the General Schedule or classified above GS-15 pursuant to section 5108, or an equivalent position, and, in the case of a career appointee referred to in subsection (a) of this section, the career appointee shall be entitled to an appointment of a tenure equivalent to the tenure of the appointment held in the position from which the career appointee was appointed;

[See main edition for text of (B) and (C), (2)] (As amended 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.)

AMENDMENTS

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).

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.

§ 3595. Reduction in force in the Senior Executive Service

SECTION REI ERRED TO IN OTHER SECTIONS

This section is referred to in sections 3135, 3151, 3393, 3593, 3594, 7542, 8351, 8433, 8435 of this title; title 10 section 1590.

Subpart C-Employee Performance

CHAPTER 41-TRAINING

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 3381 of this title; title 18 section 209; title 26 section 4941; title 38 section 3681; title 49 App. sections 1354, 1903.

§ 4101. Definitions

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 5379 of this title.

§ 4103. Establishment of training programs TEMPORARY EXTENSION OF AUTHORITY RELATING TO PRIVATE-SECTOR EXECUTIVES PERFORMING VOLUNTARY SERVICES FOR GOVERNMENT

Pub. L. 101-416, § 1, Oct. 12, 1990, 104 Stat. 902, provided that:

"(a) IN GENERAL.-Notwithstanding the expiration on September 30, 1990, of the Executive Exchange Program Voluntary Services Act of 1986 (5 U.S.C. 4103 note), any individual who, as of that date, is or was participating in a program established under such Act may continue to perform voluntary services for the Government, and the Government may continue to accept those services, for not more than an additional 90 days beyond that expiration date, to the same extent as if such Act had not expired.

"(b) EFFECTIVE DATE.-This section shall be effective as of September 30, 1990."

EXPERIMENTAL PROGRAM RELATING TO ACCEPTANCE OF VOLUNTARY SERVICES FROM PARTICIPANTS IN EXECUTIVE EXCHANGE PROGRAM

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 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. 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