
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-67 Section 605]
[CITE: 5USC3101]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
                  CHAPTER 31--AUTHORITY FOR EMPLOYMENT
 
                  SUBCHAPTER I--EMPLOYMENT AUTHORITIES
 
Sec. 3101. General authority to employ

    Each Executive agency, military department, and the government of 
the District of Columbia may employ such number of employees of the 
various classes recognized by chapter 51 of this title as Congress may 
appropriate for from year to year.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 414.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
                     5 U.S.C. 43.                  R.S. Sec.  169.
                                                   June 26, 1930, ch.
                                                    618, 46 Stat. 817.
                     5 U.S.C. 514d (2d par.).      Sept. 21, 1944, ch.
                                                    412, Sec.  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, 
Sec. 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, Sec. 201(d), as added Aug. 10, 1949, ch. 412, 
Sec. 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.


           Reduction of Federal Full-Time Equivalent Positions

    Pub. L. 103-226, Sec. 5, Mar. 30, 1994, 108 Stat. 115, as amended by 
Pub. L. 103-329, title VI, Sec. 631, Sept. 30, 1994, 108 Stat. 2424, 
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 General Accounting 
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, Sec. 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, Sec. 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.


             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.


  Citizenship Requirement for Employees Compensated From Appropriated 
                                  Funds

    Pub. L. 106-554, Sec. 1(a)(3) [title VI, Sec. 605], Dec. 21, 2000, 
114 Stat. 2763, 2763A-155, provided that: ``Unless otherwise specified 
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 in the service of the United States on the date of the 
enactment of this Act [Dec. 21, 2000] who, being eligible for 
citizenship, has filed a declaration of intention to become a citizen of 
the United States prior to such date and is actually residing in the 
United States; (3) is a person who owes allegiance to the United States; 
(4) is an alien from Cuba, Poland, South Vietnam, the countries of the 
former Soviet Union, or the Baltic countries lawfully admitted to the 
United States for permanent residence; (5) is a South Vietnamese, 
Cambodian, or Laotian refugee paroled in the United States after January 
1, 1975; or (6) is a national of the People's Republic of China who 
qualifies for adjustment of status pursuant to the Chinese Student 
Protection Act of 1992 [Pub. L. 102-404; 8 U.S.C. 1255 note]: Provided, 
That for the purpose of this section, an affidavit signed by any such 
person shall be considered prima facie evidence that the requirements of 
this section with respect to his or her status have been complied with: 
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. This section shall not apply to citizens of Ireland, 
Israel, or the Republic of the Philippines, or to nationals of those 
countries allied with the United States in a current defense effort, or 
to international broadcasters employed by the United States Information 
Agency, or to temporary employment of translators, or to temporary 
employment in the field service (not to exceed 60 days) as a result of 
emergencies.''
    [For abolition of United States Information Agency (other than 
Broadcasting Board of Governors and International Broadcasting Bureau), 
transfer of functions, and treatment of references thereto, see sections 
6531, 6532, and 6551 of Title 22, Foreign Relations and Intercourse.]
    Similar provisions were contained in the following prior 
appropriation acts:
    Pub. L. 106-58, title VI, Sec. 605, Sept. 29, 1999, 113 Stat. 466.
    Pub. L. 105-277, div. A, Sec. 101(h) [title VI, Sec. 606], Oct. 21, 
1998, 112 Stat. 2681-480, 2681-513.
    Pub. L. 105-61, title VI, Sec. 606, Oct. 10, 1997, 111 Stat. 1309.
    Pub. L. 104-208, div. A, title I, Sec. 101(f) [title VI, Sec. 606], 
Sept. 30, 1996, 110 Stat. 3009-314, 3009-354.
    Pub. L. 104-52, title VI, Sec. 606, Nov. 19, 1995, 109 Stat. 497.
    Pub. L. 103-329, title VI, Sec. 606, Sept. 30, 1994, 108 Stat. 2416.
    Pub. L. 103-123, title VI, Sec. 606, Oct. 28, 1993, 107 Stat. 1259.
    Pub. L. 102-393, title VI, Sec. 607, Oct. 6, 1992, 106 Stat. 1766.
    Pub. L. 102-141, title VI, Sec. 607, Oct. 28, 1991, 105 Stat. 868.
    Pub. L. 101-509, title VI, Sec. 603, Nov. 5, 1990, 104 Stat. 1471.
    Pub. L. 101-136, title VI, Sec. 603, Nov. 3, 1989, 103 Stat. 816.
    Pub. L. 100-440, title VI, Sec. 603, Sept. 22, 1988, 102 Stat. 1751.
    Pub. L. 100-202, Sec. 101(m) [title VI, Sec. 603], Dec. 22, 1987, 
101 Stat. 1329-390, 1329-419.
    Pub. L. 99-500, Sec. 101(m) [title VI, Sec. 603], Oct. 18, 1986, 100 
Stat. 1783-308, 1783-328, and Pub. L. 99-591, Sec. 101(m) [title VI, 
Sec. 603], Oct. 30, 1986, 100 Stat. 3341-308, 3341-328.
    Pub. L. 99-190, title I, Sec. 101(h) [H.R. 3036, title VI, 
Sec. 603], Dec. 19, 1985, 99 Stat. 1291.
    Pub. L. 98-473, title I, Sec. 101(j) [H.R. 5798, title VI, 
Sec. 604], Oct. 12, 1984, 98 Stat. 1963.
    Pub. L. 98-151, Sec. 101(f) [H.R. 4139, title VI, Sec. 603], Nov. 
14, 1983, 97 Stat. 973.
    Pub. L. 97-377, title I, Sec. 101(a) [incorporating H.R. 4121, title 
VI, Sec. 603, for FY 1982], Dec. 21, 1982, 96 Stat. 1830.
    Pub. L. 97-92, Sec. 101(a) [H.R. 4121, title VI, Sec. 603], Dec. 15, 
1981, 95 Stat. 1183.
    Pub. L. 96-536, Sec. 101(a) [incorporating Pub. L. 96-74, title VI, 
Sec. 602], Dec. 16, 1980, 94 Stat. 3166.
    Pub. L. 96-74, title VI, Sec. 602, Sept. 29, 1979, 93 Stat. 574.
    Pub. L. 95-429, title VI, Sec. 602, Oct. 10, 1978, 92 Stat. 1015.
    Pub. L. 95-81, title VI, Sec. 602, July 31, 1977, 91 Stat. 354.
    Pub. L. 94-419, title VII, Sec. 750, Sept. 22, 1976, 90 Stat. 1299.
    Pub. L. 94-363, title VI, Sec. 602, July 14, 1976, 90 Stat. 977.
    Pub. L. 94-212, title VII, Sec. 753, Feb. 9, 1976, 90 Stat. 177.
    Pub. L. 94-91, title VI, Sec. 602, Aug. 9, 1975, 89 Stat. 458.
    Pub. L. 93-381, title VI, Sec. 602, Aug. 21, 1974, 88 Stat. 630.
    Pub. L. 93-143, title VI, Sec. 602, Oct. 30, 1973, 87 Stat. 524.
    Pub. L. 92-351, title VI, Sec. 602, July 13, 1972, 86 Stat. 487.
    Pub. L. 92-49, title VI, Sec. 602, July 9, 1971, 85 Stat. 122.
    Pub. L. 91-439, title V, Sec. 502, Oct. 7, 1970, 84 Stat. 902.
    Pub. L. 91-144, title V, Sec. 502, Dec. 11, 1969, 83 Stat. 336.
    Pub. L. 90-479, title V, Sec. 502, Aug. 12, 1968, 82 Stat. 717.
    Pub. L. 90-147, title V, Sec. 502, Nov. 20, 1967, 81 Stat. 483.
    Pub. L. 89-689, title V, Sec. 502, Oct. 15, 1966, 80 Stat. 1014.
    Pub. L. 89-299, title V, Sec. 502, Oct. 28, 1965, 79 Stat. 1108.
    Pub. L. 88-511, title V, Sec. 502, Aug. 30, 1964, 78 Stat. 693.
    Pub. L. 88-257, title V, Sec. 502, Dec. 31, 1963, 77 Stat. 855.
    Pub. L. 87-880, title V, Sec. 502, Oct. 24, 1962, 76 Stat. 1227.
    Pub. L. 87-125, title V, Sec. 502, Aug. 3, 1961, 75 Stat. 282.
    Pub. L. 86-642, title II, Sec. 202, July 12, 1960, 74 Stat. 476.
    Pub. L. 86-79, title II, Sec. 202, July 8, 1959, 73 Stat. 165.
    Pub. L. 85-468, title II, Sec. 202, June 25, 1958, 72 Stat. 224.
    Pub. L. 85-48, title II, Sec. 202, June 5, 1957, 71 Stat. 53.
    June 13, 1956, ch. 385, title II, Sec. 202, 70 Stat. 280.
    June 29, 1955, ch. 226, title II, Sec. 202, 69 Stat. 195.
    Aug. 26, 1954, ch. 935, Ch. XIII, Sec. 1302, 68 Stat. 828.
    Aug. 7, 1953, ch. 340, Ch. XIII, Sec. 1302, 67 Stat. 435.
    July 15, 1952, ch. 758, Ch. XIV, Sec. 1402, 66 Stat. 659.
    Nov. 1, 1951, ch. 664, Ch. XIII, Sec. 1302, 65 Stat. 755.
    Sept. 6, 1950, ch. 897, Ch. XII, Sec. 1202, 64 Stat. 763.
    Aug. 24, 1949, ch. 506, title III, Sec. 302, 63 Stat. 661.
    Apr. 20, 1948, ch. 219, title II, Sec. 202, 62 Stat. 193.
    July 30, 1947, ch. 359, title II, Sec. 202, 61 Stat. 608.
    Mar. 28, 1946, ch. 113, title II, Sec. 206, 60 Stat. 80.
    May 3, 1945, ch. 106, title II, Sec. 206, 59 Stat. 132.
    June 27, 1944, ch. 286, title II, Sec. 205, 58 Stat. 385.
    June 26, 1943, ch. 145, title II, Sec. 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 2473 of Title 42, The Public Health and Welfare.


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, Sec. 1302, 66 Stat. 122; 
Sept. 1, 1954, ch. 1208, title VI, Sec. 602, 68 Stat. 1115; Oct. 11, 
1962, Pub. L. 87-793, Sec. 717(b), 76 Stat. 858; Aug. 6, 1965, Pub. L. 
89-114, 79 Stat. 448; Oct. 11, 1967, Pub. L. 90-105, Sec. 3, 81 Stat. 
274; Apr. 21, 1976, Pub. L. 94-273, Sec. 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, Sec. 101, Sept. 14, 1976, 90 Stat. 1255 (50 U.S.C. 1601).

       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.

                  Section Referred to in Other Sections

    This section is referred to in title 3 section 107; title 10 section 
10216; title 25 section 2a.
