
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC3392]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
            CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
 
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN 
                      THE SENIOR EXECUTIVE SERVICE
 
Sec. 3392. General appointment provisions

    (a) Qualification standards shall be established by the head of each 
agency for each Senior Executive Service position in the agency--
        (1) in accordance with requirements established by the Office of 
    Personnel Management, with respect to standards for career reserved 
    positions, and
        (2) after consultation with the Office, with respect to 
    standards for general positions.

    (b) Not more than 30 percent of the Senior Executive Service 
positions authorized under section 3133 of this title may at any time be 
filled by individuals who did not have 5 years of current continuous 
service in the civil service immediately preceding their initial 
appointment to the Senior Executive Service, unless the President 
certifies to the Congress that the limitation would hinder the 
efficiency of the Government. In applying the preceding sentence, any 
break in service of 3 days or less shall be disregarded.
    (c)(1) If a career appointee is appointed by the President, by and 
with the advice and consent of the Senate, to a civilian position in the 
executive branch which is not in the Senior Executive Service, and the 
rate of basic pay payable for which is equal to or greater than the rate 
payable for level V of the Executive Schedule, the career appointee may 
elect (at such time and in such manner as the Office may prescribe) to 
continue to have the provisions of this title relating to basic pay, 
performance awards, awarding of ranks, severance pay, leave, and 
retirement apply as if the career appointee remained in the Senior 
Executive Service position from which he was appointed. Such provisions 
shall apply in lieu of the provisions which would otherwise apply--
        (A) to the extent provided under regulations prescribed by the 
    Office, and
        (B) so long as the appointee continues to serve under such 
    Presidential appointment.

    (2) An election under paragraph (1) may also be made by any career 
appointee who is appointed to a civilian position in the executive 
branch--
        (A) which is not in the Senior Executive Service; and
        (B) which is covered by the Executive Schedule, or the rate of 
    basic pay for which is fixed by statute at a rate equal to 1 of the 
    levels of the Executive Schedule.

An election under this paragraph shall remain effective so long as the 
appointee continues to serve in the same position.
    (d) Appointment or removal of a person to or from any Senior 
Executive Service position in an independent regulatory commission shall 
not be subject, directly or indirectly, to review or approval by any 
officer or entity within the Executive Office of the President.

(Added Pub. L. 95-454, title IV, Sec. 403(a), Oct. 13, 1978, 92 Stat. 
1161; amended Pub. L. 101-335, Sec. 7(a), July 17, 1990, 104 Stat. 325.)

                       References in Text

    The Executive Schedule, referred to in subsec. (c), is set out as 
section 5311 et seq. of this title.


                            Prior Provisions

    A prior section 3392, added Pub. L. 95-437, Sec. 3(a), Oct. 10, 
1978, 92 Stat. 1056, which related to the establishment of part-time 
career employment programs, was renumbered as section 3402 of this title 
by Pub. L. 95-454, title IX, Sec. 906(c)(1)(B), Oct. 13, 1978, 92 Stat. 
1226.


                               Amendments

    1990--Subsec. (c). Pub. L. 101-335 designated existing provisions as 
par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), 
respectively, and added par. (2).


                    Effective Date of 1990 Amendment

    Section 7(b)(1) of Pub. L. 101-335 provided that: ``The amendments 
made by this section [amending this section] shall take effect on the 
date of enactment of this Act [July 17, 1990].''


Election by Persons Previously Appointed; Retroactive Performance Awards

    Section 7(b)(2), (3) of Pub. L. 101-335, as amended by Pub. L. 102-
378, Sec. 7(a), Oct. 2, 1992, 106 Stat. 1359, provided that:
    ``(2) Election by persons previously appointed.--The Office of 
Personnel Management shall prescribe regulations (including procedures 
and deadlines) under which an election under section 3392(c)(2) of title 
5, United States Code (as amended by this section) may be made by any 
individual who--
        ``(A) on the date of enactment of this Act [July 17, 1990], is 
    serving in a civilian position in the executive branch which--
            ``(i) is not in the Senior Executive Service; and
            ``(ii) satisfies section 3392(c)(2)(B) of such title 5 (as 
        so amended);
        ``(B) was appointed to that position on or after November 1, 
    1986, and has served continuously in such position since then;
        ``(C) was a career appointee (within the meaning of section 
    3132(a)(4) of such title 5) immediately before having been so 
    appointed; and
        ``(D) was not, based on such individual's appointment to the 
    position described in subparagraph (A), eligible to make an election 
    under section 3392(c) of such title 5 (as then in effect).
An election under this paragraph shall be effective as of the date of 
appointment to the position described in subparagraph (A).
    ``(3) Retroactive performance awards.--If an individual elects under 
paragraph (2) to continue to be subject to performance awards, the head 
of the agency in which such individual is serving shall determine 
whether to grant retroactive performance awards for any fiscal years 
prior to fiscal year 1991 to such individual, and the amount of any such 
awards, without regard to the provisions of subsection (b) of section 
5383 of title 5, United States Code, and subsections (b) and (c) of 
section 5384 of such title. Before granting an award, the head of the 
agency shall make a written determination that the individual's 
performance during the fiscal year for which the award is given was at 
least fully successful, and shall consider the recommendation of the 
agency's performance review board with respect to the award. No such 
award for performance during any fiscal year may be less than 5 percent 
nor more than 15 percent of the individual's rate of basic pay as of the 
end of such fiscal year.''
    [Pub. L. 102-378, Sec. 7(b), Oct. 2, 1992, 106 Stat. 1359, provided 
that: ``The amendment made by subsection (a) [enacting section 7(b)(3) 
of Pub. L. 101-335, set out above] shall be effective as if enacted as a 
part of section 7 of the Thrift Savings Plan Technical Amendments Act of 
1990 [Pub. L. 101-335].'']
