
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC3304]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
            CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
 
        SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
 
Sec. 3304. Competitive service; examinations

    (a) 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; and
        (2) noncompetitive examinations when competent applicants do not 
    compete after notice has been given of the existence of the vacancy.

    (b) 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.
    (c)(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.

    (d) The Office 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.
    (e) 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.
    (f)(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.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 95-454, title IX, 
Sec. 906(a)(5), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 99-586, Oct. 29, 
1986, 100 Stat. 3325; Pub. L. 104-65, Secs. 16(a), (b), 17(a), Dec. 19, 
1995, 109 Stat. 703; Pub. L. 104-186, title II, Sec. 215(2), Aug. 20, 
1996, 110 Stat. 1745; Pub. L. 105-339, Sec. 2, Oct. 31, 1998, 112 Stat. 
3182; Pub. L. 106-117, title V, Sec. 511(c), Nov. 30, 1999, 113 Stat. 
1575.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
(a)................  5 U.S.C. 633(2)1.             Jan. 16, 1883, ch.
                                                    27, Sec.  2(2)1, 22
                                                    Stat. 403.
                     5 U.S.C. 633(2)7 (less last   Jan. 16, 1883, ch.
                      17 words).                    27, Sec.  2(2)7
                                                    (less last 17
                                                    words), 22 Stat.
                                                    404.
(b)................  5 U.S.C. 638 (as applicable   Jan. 16, 1883, ch.
                      to appointment).              27, Sec.  7 (as
                                                    applicable to
                                                    appointment), 22
                                                    Stat. 406.
(c)................  5 U.S.C. 631b(b).             Nov. 26, 1940, ch.
                                                    919, Sec.  2(b), 54
                                                    Stat. 1212.
                                                   Feb. 12, 1946, ch. 3,
                                                    60 Stat. 3.
                                                   May 29, 1958, Pub. L.
                                                    85-432, Sec.  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, Sec.  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.


                               Amendments

    1999--Subsec. (f)(2), (3). Pub. L. 106-117, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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''.


                    Effective Date of 1999 Amendment

    Pub. L. 106-117, title V, Sec. 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) 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

    Section 16(c) of Pub. L. 104-65 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].''
    Section 17(b) of Pub. L. 104-65 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.

                  Section Referred to in Other Sections

    This section is referred to in section 3302 of this title; title 22 
section 3008; title 40 section 42.
