Title 5
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Title 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
This title was enacted by Pub. L. 89–554, § 1, Sept. 6, 1966, 80 Stat. 378
Current through 117-49

Part

Sec.

I.The Agencies Generally101

II.Civil Service Functions and Responsibilities1101

III.Employees2101

Editorial Notes
Amendments1979—Pub. L. 96–54, § 2(a)(1), Aug. 14, 1979, 93 Stat. 381, substituted “Civil Service Functions and Responsibilities” for “The United States Civil Service Commission” in item for part II.

Table Showing Disposition of All Sections of Former Title 5

Title 5Former SectionsTitle 5New Sections

1, 2101
3Rep.
43345
53346
63347
73348
83349
95535
102901
11, 122902
13–14a, 15Rep.
163331
16a2903, 2904
17, 17aRep.
17b, 17c2905
182903
19Rep.
202904
212906
21a3332
21b5507
22301
22–1 (less 3d–5th provisos)7532
22–1 (3d proviso)3571, 5594
22–1 (4th and 5th provisos)7312
22–27533
22–37531
22a302
23–26cRep.
276106
286105
29, 29a, 30 to 30b–1, 30c to 30e–1, 30f–30mRep.
30n6322
30n–1T. 28 § 1823
30o5537
30p5515
30q6321
30r(a)6323
30r(b)3551
30r(c)502, 5534
30r(d)2105
31–31b, 32Rep.
337154
34–35a, 36–37aRep.
383341
39, 403342
41T. 14 § 632
42, 42aRep.
433101
43a3102
44T. 31 § 492–1 (See Rev. T. 31 Table)
45Rep.
463103
46a5511
46b5513
46cT. 31 § 699a (See Rev. T. 31 Table)
46d, 46e5514
473103; T. 18 § 1916
47a8301; T. 10 § 1221
48T. 28 § 514
493106
505501; T. 18 § 1916
515536
525502
533108
543107
55Rep.
55a3109
565503
57–59cRep.
60T. 2 § 162
61D.C. Code, § 31–1009
61a5552
61a–1(a), (f)5534a
61a–1(b)–(e)Rep.
61b (1st, 2d sentences)5551
61b (3d–5th sentences)6306
61b (6th sentence)5551
61c–61eRep.
61f5582
61g5581
61h5583
61i5581
61j5582
61k5581
62–64aRep.
65T. 2 § 162
66T. 18 § 1914
67T. 7 § 2220
68T. 8 § 1353c
695535, 5536
705536
70a, 70b5945
70c5942
715536
725535
73, 73aRep.
73b5731
73b–1(a), (b)5724
73b–1(c)5730
73b–1(d)5725
73b–1(e)5726
73b–1(f)5727
73b–25703
73b–3(a) (less 3d–6th provisos)5722
73b–3(a) (3d, 4th provisos)5728
73b–3(a) (5th, 6th provisos)5729
73b–3 (less (a))5723
73b–4T. 41 § 5a
73b–4a, 73b–4b5724a
73b–4c5726
73b–4d5724
73b–4e5724a
73b–4f5724
73b–55732
73c5727
73c–1, 73c–2, 73dRep.
73e5731
73f, 74–75aRep.
75a–1Elim.
75b–75d, 76Rep.
76aT. 20 § 244a
77, 77aRep.
78, 78a, 78a–1, 79, 80T. 31 §§ 638a–638e (See Rev. T. 31 Table)
81, 81aRep.
825512
835946
845505
84aT. 4 § 111
84b, 84c5517
84d5518
855502
86Rep.
86a6104
87–87c6103
88T. 31 § 554 (See Rev. T. 31 Table)
89Rep.
90T. 28 § 414
91T. 28 § 520
92Rep.
92a2903
93303
93aRep.
94304
95, 95a503
96304
97, 98Rep.
99, 100Rep. See T. 18 § 207.
101501
102Rep.
1035741
103a, 103b5742
104T. 31 § 492–2 (See Rev. T. 31 Table)
104a, 105Rep.
105a2954
1062952
107Rep.
108T. 44 § 121 (See Rev. T. 44 Table)
109Rep.
110T. 40 § 484–1 (See Rev. T. 40 Table)
111, 112Rep.
1137351
1147341
114a7342 note
115, 115a7341
116Elim.
116a, 117Rep.
118T. 31 § 686–2 (See Rev. T. 31 Table)
118a5912
118bT. 31 § 530a (See Rev. T. 31 Table)
118c5943
118c–1 to 118eRep.
118f5944
118g7903
118h5941
118i(a) (1st 4 sentences)7324
118i(a) (5th sentence)7327
118i(b) (less last proviso, and less last sentence)7325
118i(b) (last proviso, last sentence)Elim.
118i(c)1308
118j, 118j–1Rep.
118k(a)1501, 1502
118k(b)1504, 1505, 1506
118k(c)1508
118k(d)1302, 1507
118k(e), (f)1501
118k–11501, 7324
118k–21501
118k–37324
118l1501, 7324
118m7327
118n1503, 7326
118o7323
118p7311
118q3333
118rT. 18 § 1918
119–123Elim.
124–131a, 132–133rRep.
133s, 133tElim.
133u, 133vRep.
133wElim.
133x to 133y–16Rep.
133z901
133z–1903
133z–2904
133z–3905
133z–4906
133z–5, 133z–6902
133z–7, 133z–8907
133z–9906
133z–10908
133z–11 to 133z–15909–913
134T. 40 § 721 (See Rev. T. 40 Table)
134aT. 40 § 722 (See Rev. T. 40 Table)
134bT. 40 § 723 (See Rev. T. 40 Table)
134b–1T. 40 § 724 (See Rev. T. 40 Table)
134b–2T. 40 § 725 (See Rev. T. 40 Table)
134cT. 40 § 726 (See Rev. T. 40 Table)
134dT. 40 § 727 (See Rev. T. 40 Table)
134eT. 40 § 728 (See Rev. T. 40 Table)
134fT. 40 § 729 (See Rev. T. 40 Table)
134g, 134hT. 40 § 721 note Rep.
135–138jRep.
139–139fT. 44 §§ 421–427 (See Rev. T. 44 Table)
140, 140aT. 31 §§ 483a, 483b (See Rev. T. 31 Table)
141–149Rep.
1507901
150e–150iT. 10 § 2575
150jT. 10 §§ 4712, 9712
150j–1 to 150j–3T. 10 §§ 4713, 9713
150k2105
150k–1(a)8171
150k–1(b)8172
150k–1(c)8173
150m–150oT. 10 § 2541
150pT. 10 § 2572
150q–150tT. 10 § 2601
151T. 22 § 2651
151aT. 22 § 2652
151bT. 22 § 2653
151cT. 22 § 2658
151d to 152–1Rep.
152aT. 22 § 2654
152bT. 22 § 2655
152c, 152d, 153Rep.
153aT. 22 § 2663
154T. 22 § 2664
154aRep.
155T. 22 § 2665
156T. 22 § 2656
157Rep.
158T. 22 § 2657
159, 160Rep.
161T. 22 § 2659
162–164Rep.
165T. 22 § 2660
166–168dRep.
169T. 22 § 2661
170T. 22 § 2668
170aT. 22 § 2681
170bT. 22 § 2682
170cT. 22 § 2683
170dRep.
170eT. 22 § 2666
170e–1T. 22 § 2667
170fT. 22 § 2662
170gT. 22 § 2669
170hT. 22 § 2670
170iT. 22 § 2671
170jT. 22 § 2672
170kT. 22 § 2673
170lT. 22 § 2674
170mT. 22 § 2675
170nT. 22 § 2676
170oT. 22 § 2677
170pT. 22 § 2678
170qT. 22 § 2679
170r, 170sRep.
170tT. 22 § 2680
170uT. 22 § 2684
171T. 10 §§ 131, 133
171–1T. 50 § 408
171–2T. 50 § 409
171a(a), (b)T. 10 § 133
171a(c)T. 10 §§ 125, 136, 141, 3010, 3012, 5011, 5031, 8010, 8012
171a(d)T. 10 § 133
171a(e)T. 10 § 132
171a(f)T. 10 § 133
171a(g)–(i)Elim.
171a(j)T. 10 § 124
171a–1T. 10 § 133
171bRep.
171cT. 10 §§ 134–136, 718, 2358
171c–1, 171c–2, 171d to 171d–2Rep.
171eT. 10 § 171
171fT. 10 §§ 141, 142
171gT. 10 § 143
171h, 171iRep.
171jT. 10 § 173
171j–1 to 171lRep.
171mT. 50 § 411
171m–1T. 10 § 2211
171nT. 50 § 410
171oRep.
171p, 171qT. 10 § 1581
171rT. 10 § 1582
171sT. 10 §§ 3230, 5416, 8230
171s–1T. 31 § 700 (See Rev. T. 31 Table)
171tT. 10 § 2571
171uRep.
171vT. 10 § 1583
171wT. 10 § 2385
171x, 171yRep.
171y–1T. 10 §§ 3205, 5417, 8205
171zT. 10 § 2661
171z–1T. 10 § 2681
171z–2T. 31 § 700a (See Rev. T. 31 Table)
171z–3 to 171z–5T. 10 §§ 2673–2675
172T. 10 § 136
172aT. 10 §§ 3014, 5061, 8014
172b, 172cT. 10 §§ 2203, 2204
172dT. 10 § 2208
172d–1T. 10 § 2210
172eT. 10 § 2209
172fT. 10 § 126
172g, 172hT. 10 §§ 2205, 2206
172iT. 10 § 2701
172jT. 50 § 412
173T. 10 § 2451
173aRep.
173bT. 10 § 2451
173c–173eT. 10 §§ 2452–2454
173f–173hT. 10 § 2455
173iT. 10 § 2456
174T. 31 § 650a (See Rev. T. 31 Table)
174aT. 37 § 412
174bT. 10 § 2666
174cElim.
174dT. 10 § 2207
174eT. 10 § 2387
174fElim.
174gT. 31 § 638f (See Rev. T. 31 Table)
174hElim.
174iT. 31 § 700b (See Rev. T. 31 Table)
181T. 10 § 3012
181–1(a)T. 10 § 3012
181–1(b)Elim.
181–1(c)T. 10 § 101(5); T. 50 § 409(a)
181–1(d)T. 10 § 3011
181–1(e)T. 10 § 3062
181–2T. 10 § 3012
181–3T. 10 § 3001
181–4T. 10 §§ 3012, 4532
181–5T. 10 §§ 3013, 3017
181a, 182, 182a, 183, 184Rep.
185–187T. 10 § 3016
187a, 188, 189Rep.
189aT. 10 §§ 4025, 9025
189bRep.
189cT. 10 § 2632
189dRep.
190T. 10 § 3012
191T. 10 § 4831
191aT. 10 § 1552
192, 192a, 193–194a, 195–197Rep.
198T. 10 § 4714
199T. 10 §§ 3693, 8693
200T. 10 § 1551
201Rep.
202T. 10 §§ 4565, 9565
203–207i, 208–213Rep.
214Elim.
215–216a, 217Rep.
218T. 10 § 2381
219–219b, 220Rep.
221T. 10 §§ 4540, 9540
222T. 31 § 649a (See Rev. T. 31 Table)
223Rep.
224T. 22 § 276aa
225T. 22 § 276bb
226T. 22 § 276cc
227T. 22 § 276dd
228T. 22 § 276ee
229–232Rep.
233–233c(See former 150q–150t)
234–234fRep.
235T. 10 § 4531
235aT. 10 § 4503
235bT. 10 § 174
235cT. 10 § 1584
235dT. 10 § 2352
235eT. 10 §§ 2353, 2357
235f, 235gT. 10 §§ 2354, 2355
235hT. 10 §§ 174, 2356
241–245T. 31 §§ 1001–1005 (See Rev. T. 31 Table)
245aRep. and Elim.
246T. 31 § 1006 (See Rev. T. 31 Table)
246aRep.
247–248aT. 31 §§ 1007–1009 (See Rev. T. 31 Table)
248bRep.
248c–248eT. 31 §§ 1010, 1011, 1013 (See Rev. T. 31 Table)
249, 249aRep.
249b, 250T. 31 §§ 1014, 1015 (See Rev. T. 31 Table)
251Rep.
252–258a, 259–265T. 31 §§ 1016–1030 (See Rev. T. 31 Table)
266–269Rep.
270, 271Elim.
272–274Rep.
275T. 10 § 1552
276Rep.
277T. 31 § 1031 (See Rev. T. 31 Table)
281T. 19 § 2071
281aT. 19 § 2072
281bT. 19 § 2073
281cT. 21 § 163
281d, 281eRep.
281fT. 19 § 2072
281gT. 19 § 2074
282T. 21 § 161
282aT. 21 § 162
282bT. 21 § 164
282cT. 21 § 165
291T. 28 §§ 501, 503
292T. 28 § 502
293T. 28 § 505
293aRep.
294T. 28 § 504
295, 295–1T. 28 § 506
295aRep.
295bRep. and Elim.
296Rep.
297Rep. and Elim.
297aRep.
298T. 28 § 543
298a5108
299T. 28 § 533
300T. 28 §§ 533, 534
300aT. 18 §§ 3052, 3107
300bT. 31 § 224b (See Rev. T. 31 Table)
300c, 300c–1Rep.
300dT. 28 § 536
300e–302Rep.
303, 304T. 28 §§ 511, 512
305T. 28 § 521; T. 44 § 296a (See Rev. T. 44 Table)
306T. 28 § 516
306aRep.
307T. 28 § 513
308Rep.
309T. 28 § 518
310T. 28 § 515
311Rep.
311aT. 28 § 535
312T. 28 §§ 543, 547, 548
313T. 28 § 514
3143106
315T. 28 § 515
316T. 28 § 517
317T. 28 §§ 547, 569
318T. 28 §§ 549, 569
319T. 28 § 523
320, 321Rep.
322T. 31 § 1010 (See Rev. T. 31 Table)
323, 324T. 28 § 547
325T. 31 § 1012 (See Rev. T. 31 Table)
326T. 31 § 1011 (See Rev. T. 31 Table)
327T. 28 § 547
328T. 31 § 1013 (See Rev. T. 31 Table)
329T. 28 §§ 547, 569
330, 331T. 28 § 547
332Rep. See Fed. Rules Civ. Proc. rule 2.
333T. 28 § 522
334–339Rep.
340T. 28 § 534
341T. 28 § 524
341aT. 28 § 568
341bT. 28 § 526
341cT. 28 §§ 536, 537
341dT. 8 § 1555
341eT. 28 § 525
341fT. 18 § 4010
341gT. 18 § 4011
341hT. 42 § 250a
342T. 8 § 1551
342aElim.
342bT. 8 § 1552
342b–1T. 8 § 1553
342cT. 8 § 1353a
342dT. 8 § 1353b
342eT. 8 § 1353d
342fRep.
342gT. 8 § 1554
342h–342kElim.
342lT. 8 § 1557
361Rep. See T. 39 §§ 201, 203.
362Rep. See T. 39 § 207.
363, 363a, 364Rep. See T. 39 § 204.
364–1(a)Rep. See T. 39 §§ 204, 401.
364–1(b), 364a, 364bRep.
365Rep. See T. 39 § 1011.
366Rep. See T. 39 § 401.
367Rep. See T. 39 § 2201.
368Rep.
369Rep. See T. 39 §§ 202, 401, 403, 404.
370Rep. See T. 39 §§ 1001, 1006.
371Rep.
372, 373Rep. See T. 39 § 407.
374Rep. See T. 39 § 2202.
375Rep. See T. 39 § 407.
376Rep.
377Rep. See T. 39 § 401.
378–382Rep.
383, 384Rep. See T. 39 § 2601.
385–388Rep.
389Rep. See T. 39 § 5213.
390, 391Rep.
392Rep. See T. 39 § 2603.
393Rep. See T. 39 § 401.
411T. 10 § 5031
411a(a)T. 10 § 101(5); T. 50 § 409(b)
411a(b)T. 10 § 5012
411a(c)T. 10 §§ 5013, 5402
411b, 412T. 10 § 5031
412aT. 10 §§ 6952, 7202–7211, 7214, 7215, 7218, 7301, 7472, 7478, 7571, 7572, 7576, 7578, 7579
412bT. 10 § 2381
413T. 10 § 5031
414, 415, 415aRep.
415bT. 10 § 7473
415cT. 10 § 7472
415dT. 10 § 2632
415e, 416, 417Rep.
418T. 10 § 7216
419T. 10 § 7221
419aT. 10 § 7220
419bT. 10 § 7222
419cT. 10 § 7202
420, 420a, 421T. 10 § 5034
421aRep.
421a–1T. 10 §§ 5034, 5036
421bT. 10 §§ 5033, 5036
421cT. 10 § 7211
421dT. 10 § 7204
421eT. 10 §§ 7203, 7205
421fT. 10 §§ 7207–7209
421gT. 10 §§ 6081, 7204, 7205, 7211, 7214, 7218, 7571, 7572, 7576, 7579
422, 422a, 423Rep.
423aT. 10 §§ 5081, 5082, 5111
423bT. 10 § 5081
423c–423fT. 10 §§ 5085–5088
423g, 423hT. 10 §§ 5111, 5112
423iT. 10 § 5082
423jT. 10 § 5036
423kT. 10 §§ 5085, 5086, 5088, 5111
424T. 10 § 5081
425Rep.
425aT. 10 §§ 5083, 5133, 5148, 5201
426, 426aRep.
427T. 10 § 5081
427aT. 10 § 5084
428T. 10 § 5148
429T. 10 §§ 5131, 5132
430T. 10 § 5132
430aT. 10 § 7303
430bT. 10 § 5132
431T. 10 § 5132
432T. 10 §§ 5137, 5141, 5146, 5147
432aT. 10 § 5135
433T. 10 § 5147
434T. 10 §§ 5141, 5144
435T. 10 § 5145
436Rep.
437T. 10 § 5146
438T. 10 § 5137
439T. 10 §§ 5133, 5136
440T. 10 §§ 5137, 5146
441T. 10 §§ 5133, 5148
441aT. 10 § 5133
442, 443Rep.
444T. 10 § 5149
445T. 10 §§ 5135, 5147
446T. 10 §§ 5135, 5141
447T. 10 §§ 5135, 5144
448T. 10 § 5145
448aT. 10 § 5135
448b T. 10 § 5145
449T. 10 §§ 5135, 5146
450Rep.
451T. 10 § 5137
452T. 10 §§ 5134–5136
453T. 10 § 5149
454Rep.
455T. 10 § 5132
456Rep.
456aT. 10 § 1552
456b, 456cT. 10 § 5138
456dT. 10 § 6029
457T. 10 § 7391
457a, 457bRep.
458T. 10 §§ 7392, 7394
458aT. 10 § 7393
459T. 10 § 7394
460, 460aRep.
461T. 10 § 7395
462Rep.
463T. 10 § 7395
464T. 10 § 7396
465Rep.
466T. 10 § 7217
467, 468, 468a, 469, 470Rep.
471T. 10 §§ 5063, 5064
475T. 10 §§ 5150, 5151
475a, 475bT. 10 § 5150
475cT. 10 § 5153
475dT. 10 §§ 5151, 5152
475eT. 10 § 7522
475fRep.
475gT. 10 § 174
475hT. 10 § 1584
475iT. 10 § 2352
475jT. 10 §§ 2353, 2357
475k, 475lT. 10 §§ 2354, 2355
475mT. 10 §§ 174, 2356
476, 476a, 476bT. 10 §§ 1581, 1582
477–477c(See former 150q–150t)
481T. 43 § 1451
481aT. 43 § 1452
482T. 43 § 1453
482aRep.
483T. 43 § 1454
483–1Rep. and Elim.
483–2Rep.
483aT. 43 § 1455
484T. 43 § 1456
485T. 43 § 1457
486T. 43 § 1458
487T. 43 § 1459
488T. 43 § 1460
489T. 43 § 1461
490Rep. See T. 28 § 1733.
491T. 43 § 1462
492T. 43 § 1463
493T. 43 § 1464
494Rep.
495T. 43 § 1465
496, 496a, 497Rep.
498T. 43 § 1466
499, 500Rep.
501Elim.
502T. 43 § 1467
503T. 43 § 1468
511T. 7 § 2201
512T. 7 § 2202
513T. 7 § 2203
514T. 7 § 2204
514aT. 7 § 2210
514bT. 7 § 2211
514cRep.
514d (1st, 3d pars.)Rep.
514d (2d par.)3101
515T. 7 § 2205
516T. 7 § 2206
516aT. 7 § 450c
516b (less 3d sentence)T. 7 § 450d
516b (3d sentence)5109
516cT. 7 § 450e
516dT. 7 § 450f
516eT. 7 § 450g
517T. 7 § 2212
517aRep.
517bT. 7 § 2213
517cRep.
518Elim.
518aT. 7 § 2214
519T. 7 § 2215
520T. 7 § 2216
520aT. 7 § 2232
521T. 7 § 2217
522T. 7 § 2218
523–527Rep.
528T. 7 § 2219
529Rep.
530T. 7 § 2221
531T. 7 § 2222
532T. 7 § 2223
533T. 7 § 2224
534–537Rep.
538T. 7 § 2227
539–541bRep.
541cT. 7 § 2233
541dT. 7 § 2228
541eT. 7 § 2229
542T. 7 § 2234
542–1T. 7 § 2235
542–2T. 7 § 2236
542aT. 7 § 2237
542bT. 7 § 2238
542cT. 7 § 2239
543T. 7 § 2240
543aT. 7 § 2230
543bT. 7 § 2231
544–548Rep.
549T. 7 § 2241
550Rep.
551T. 7 § 2242
552T. 7 § 2243
552aT. 7 § 2244
553T. 7 § 2245
554T. 7 § 2246
555T. 7 § 2247
556, 556aRep.
556bT. 7 § 2248
557T. 7 § 2207
557aT. 7 § 2208
558T. 7 § 2209
558a, 559–562Rep.
563T. 7 § 450b
564T. 7 § 2220
564aT. 7 § 2249
565Rep.
565aT. 7 § 2250
565bT. 7 § 2250a
566T. 7 § 2251
567T. 7 § 2253
568Rep.
568aT. 7 § 2254
568bRep.
569T. 7 § 2252
570T. 7 § 2255
571T. 7 § 2256
572T. 7 § 2257
573T. 7 § 2258
574T. 7 § 2225
574aT. 7 § 2226
575T. 7 § 2259
576T. 7 § 2260
577T. 7 § 2261
578T. 7 § 2262
579T. 7 § 2263
591T. 15 § 1501
591aT. 15 § 1502
591bT. 15 § 1503
592T. 15 § 1504
592aT. 15 § 1505
592a–1, 592a–2Rep.
592a–3T. 15 § 1506
592a–4T. 15 § 1507
592bT. 15 § 1508
592c, 592d, 593Rep.
593aT. 15 § 1509
594T. 15 § 1510
595Rep.
596T. 15 § 1512
596aT. 15 § 1514
597T. 15 § 1511
597a, 597a–1, 597b–597dRep.
598T. 15 § 1515
599T. 15 § 1513
600–600bRep.
601T. 15 § 1516
601a–601dT. 15 §§ 189, 189a, 192, 192a
602T. 15 § 1517
603T. 15 § 1518
604T. 15 § 1519
605Rep.
606T. 15 § 1520
606aRep.
607T. 15 § 1521
608Rep.
608aT. 15 § 1522
608bT. 15 § 1523
608cT. 15 § 1524
611T. 29 § 551
611aT. 29 § 552
611bT. 29 § 553
611cRep. and Elim.
612, 613Rep.
613aT. 29 § 554
613bT. 29 § 555
614Rep.
615T. 29 § 556
616T. 29 § 557
617T. 29 § 558
618T. 29 § 559
619Rep.
620T. 29 § 560
621T. 29 § 561
622T. 29 § 562
622aT. 29 § 563
623T. 42 § 3501
623aT. 42 § 3508
623bT. 42 § 3503
623cT. 42 § 3504
623dT. 42 § 3505
623eT. 42 § 3507
623fT. 42 § 3506
623gT. 42 § 3502
623hT. 42 § 3501a
623iElim.
624T. 42 § 3531
624aT. 42 § 3532
624bT. 42 § 3533
624cT. 42 § 3534
624dT. 42 § 3535
624eT. 42 § 3536
624fT. 42 § 3537
626(a)T. 10 § 8012
626(b)Rep.
626(c)T. 10 § 101(5); T. 50 § 409(c)
626(d)T. 10 § 8013
626(e)T. 10 § 8012
626(f)T. 10 § 8033
626(g)T. 10 § 8011
626–1T. 10 § 8013, 8017
626–2T. 10 §§ 8012, 9532
626aT. 10 § 8012
626bT. 10 § 8013
626c(a), (f)T. 10 § 8062
626c(b)T. 10 § 743
626c(c)–(e), 626c–1 to 626c–3, 626d, 626eRep.
626f(See former 150p)
626g–626j(See former 150q–150t)
626kRep.
626l, 626mT. 10 § 9441
626nT. 10 § 2632
626oRep.
626pT. 10 § 9774
626q, 626rT. 10 § 9301
626s to 626s–2T. 10 § 2481
626s–3T. 10 § 2667
626s–4, 626s–5Rep.
626s–6T. 10 § 2667
626t, 626uT. 10 § 1581
626v–626y, 627Rep.
627aT. 10 §§ 8208, 8215
627bT. 10 §§ 8071, 8208, 8297, 8299, 8305, 8504, 8685, 8888, 8915, 8916, 8927, 8962, 8991
627cRep.
627dT. 10 § 8256
627eT. 10 § 8685
627fT. 10 §§ 8549, 8580, 8818
627g–627lRep.
628T. 10 § 9531
628aT. 10 § 9503
628bT. 10 § 174
628cT. 10 § 1584
628dT. 10 § 2352
628eT. 10 §§ 2353, 2357
628f, 628gT. 10 §§ 2354, 2355
628hT. 10 §§ 174, 2356
630T. 40 § 751 (See Rev. T. 40 Table)
630aT. 40 § 752 (See Rev. T. 40 Table)
630bT. 40 § 753 (See Rev. T. 40 Table)
630cRep.
630dT. 40 § 754 (See Rev. T. 40 Table)
630eT. 40 § 755 Rep.
630fRep.
630gT. 40 § 756 (See Rev. T. 40 Table)
630g–1T. 40 § 757 (See Rev. T. 40 Table)
630g–2T. 40 § 759 Rep.
630hT. 40 § 758 (See Rev. T. 40 Table)
630iElim.
630jRep.
6313301, 7301
631a, 631b(a)Elim.
631b(b), (c)3304
632 (1st par.)1101
632 (2d–4th pars.)1102
632 (5th par.)1103
633(1)1301, 3302
633(2)13304
633(2)23318
633(2)33306
633(2)43321
633(2)57321
633(2)67152, 7322
633(2)71302, 3304
633(2)82951, 3302
633(2)97153
633(3)1302, 1307
633(4)1303
633(5)1308
633a–633eRep.
6341306
635 (1st 5 sentences)1104, 1105
635 (6th sentence)1105, 3305
635 (7th sentence)3304
636Rep.
637T. 18 § 1917
6382102, 3304, 3361
638aRep.
638b3307, 3322
639Rep.
6407352
6413319
6423303
642a2953
643–645bRep.
645c–645eElim.
646–651bRep.
652(a)7501
652(b)5591–5593
652(c)7101
652(d)7102
652a–652c5596
653, 654Rep.
655–6571304
658Elim.
6593327
661–663b, 664–669a, 670–672c, 673–673bRep.
673c (1st par., less provisos)Rep.
673c (1st proviso)6102
673c (2d, 3d provisos)5544
673c (2d par.), 674–678bRep.
679Elim.
680–684, 691, 691a, 692–692d, 693 to 693–2, 693a–693d, 694, 649a, 695, 695a, 696, 696a, 697, 697a, 698–698b, 699, 699a, 700, 700a, 701, 701a, 702, 702a, 703, 703a, 704, 704a, 705, 705a, 706, 706a, 707, 707a, 708, 708a, 709–615Rep.
715a3323
715b–715d, 716–718a, 719, 719–1, 719a, 719b, 720–729a, 730–736c, 737–739b, 740, 740aRep.
740b–740i(See former 2281–2288)
745–745rRep.
7518102
7528117
7538105
7548106
755(a), (b)8107
755(c)8108
755(d)8109
756(a)8110
756(b)8111
756(c)8112
756(d)8113
756aRep.
7578116
7588118
759(a)8103
759(b)8104
759(c)3315a
760(A)8133
760(B)8101, 8133
760(C)–(G)8133
760(H)8101
760(I)–(K)8133
760(L)T. 18 § 1921
760(M)8101
7618134
7628114
7638115
7648135
765–7678119
768, 7698121
7708122
771, 772, 773(a)8123
773(b)8127; T. 18 § 292
773(c)8125
774(a)8120
774(b)T. 18 § 1922
7758130
7768131
7778132
7788145
7798120
7808126
7818145
782Rep.
7838145, 8149
784(a)8148
784(b), (c)7902
7858147
7868124
7878128
7888129
789T. 18 § 1920
7908101
7918131
791–1 to 791–3, 791–4(a)Rep.
791–4(b)8150
791aRep.
791bElim.
792Rep.
793 (1st par.)8146
793 (2d par., 1st sentence)8146
793 (2d par., 2d sentence)8138
793 (2d par., 3d, 4th sentences)8146
793 (3d par.)8146
793 (4th par., 1st sentence)8138
793 (4th par., 2d sentence)8136
793 (5th par., 1st through 6th sentences)8137
793 (5th par., 7th sentence)8128
793 (5th par., 8th sentence)8137
793a(a), (b)8146a
793a(c)8101
7948101, 8139
795–797a, 798–801Rep.
8028140
803(a)–(c)8141
803(d)Rep.
803a8150
821–823Rep.
823a(See former 73c)
824–834Rep.
8355701
8365702
8375704
8385705
8395706
8405707
841, 8425708
8511302, 2108
852 (1st 2 sentences)3309, 3310
852 (less 1st 2 sentences)Elim.
8533311
8543308, 3312, 3351, 3363, 3504
8553306, 3319
8563313
8573317, 3318, 3364
8583320
8593305
8601302
8613501–3503
8623316
8633315, 7512, 7701
8643315, 3318
8653314
866, 867Rep.
8681302, 7701
8693320
901(a)5541
901(b)Rep.
901(c)T. 2 § 60e–2. Rep. in part.
901(d), (e)5541
9025541; T. 2 § 60e–2
9115542
9125543
912a, 912b5542
9135544
9145506
9215545
921a5546
9225546
9265545
931T. 2 § 60e–3
932T. 2 § 60e–4
932aT. 2 § 60e–5
932bT. 2 § 60e–6
932c(a)–(c)T. 2 § 60e–7
932c(d)8331
932d(a)–(c)T. 2 § 60e–8
932d(d)8331
932d(e)Rep.
932d(f)T. 2 § 60e–8
932e(a)–(e)T. 2 § 60e–9
932e(f)8331
932f(a)–(d)T. 2 § 60e–10
932f(e)8331
932f(f)T. 2 § 60e–10
932f(g)Rep.
932g(a)–(c)T. 2 § 60e–11
932g(d)8331
932g(e)T. 2 § 60e–11
932h(a), (b)T. 2 § 60e–12
932h(c)8331
932h(d)T. 2 § 60e–12
932i(a), (b)T. 2 § 60e–13
932i(c)8331
932i(d), (e)T. 2 § 60e–13
9335544; T. 2 § 60e–2b
933aT. 31 § 46a (See Rev. T. 31 Table)
934, 935Rep.
9415549
942–942bRep.
9435547
943aRep.
944(a)6101
944(b), (c)5504
944(d)5504, 6101
9455504, 5548, 6101
9465342
947–954Rep.
955T. 2 § 60e–4a
956–958Rep.
1001551
1002552
1003553
1004554
1005555
1006556
1007557
1008558
1009701–706
1010 (1st sentence)3105
1010 (2d sentence)7521
1010 (3d sentence)4301, 5335, 5362
1010 (4th sentence)3344
1010 (5th sentence)1305
1011559
1012–1014500
1031–1040T. 28 §§ 2341–2350
1041T. 28 § 2352
1042T. 28 § 2351
1045(a)–(d)Elim.
1045(e)571
1045a572
1045b573
1045c574
1045d575
1045e576
10515352, 5353
10525351
10538144
10548331, 8332
10555354
1056Rep.
10575355
10585356
10715101
1072, 1072a5115
1073Rep.
10747154
1075Rep.
1076Elim.
10815102
10825102, 5341, 5342
10835103
1084(a)T. 2 § 60e–2a
1084(b), (c)5102, 5103
1085305
10915102
1092, 10935106
10945105
11015112
11025107, 5110
11035110
11045111
1105(a)–(l)3324, 5108
1105(m)Rep.
1105a5114
1105bElim.
11065113
11075337
1111, 11125104
11135332
1114–1116Rep.
11175595
11215335
11225336
11235335, 5336
1124, 1125Rep.
11315333
11325334
11335333
11345545
1141, 1142Rep.
1151305
1152, 1153Rep.
11613104, 3325, 5361
1162(a)3325
1162(b)5361
1162(c)3104
11633104
11715301
11725302
11735303
11745304
11815343
1182(a)5344, 5581
1182(b)8331
1182(c)5344
11838704
1184Rep.
20014301
20024302
20034307
20044303
20054304
20064305
2007(a)4308
2007(b)–(d)4306
20615508, 6301, 6305
2061a5551, 6302
2062(a), (b)6303
2062(c), (d)6304
2062(e)6303
2062(f)6305
2062(g)6310
2062(h)6302
2062(i)6303
2062a, 2062bRep.
20636307
2064(a)–(c)6302
2064(d)6309
2064(e)6308
20656311
2066(a)6304
2066(b)–(d)Rep.
20676301
2068–2070Rep.
20716324
2091(a)8701, 8716
2091(b)8701
2091(c)8706
2091(d)8701, 8716
2092(a)–(c)8704
2092(d)Rep.
20938705
2094(a) (1st par.)8707
2094(a) (2d par.)8702
2094(b)8708
2094(c), (d)8714. Elim. in part.
20958706
20968709, 8710
20978711, 8712
20988703
2099Elim.
21008716. Elim. in part.
21018713. Elim. in part.
21021308. Elim. in part.
21038715. Elim. in part.
21211308, 4506
21224501
2123(a)4503
2123(b)4504
2123(c)4505
2123(d), (e)4502
2123(f)3362
2123(g)4502
21315901
21325901, 8331
21335901
21345902
2151T. 10 § 1481
2152, 2153T. 10 §§ 1481, 1482
2154T. 10 § 1481
2155–2160T. 10 §§ 1483–1488
2161, 2162T. 10 § 1482
2163Rep.
2171T. 42 § 1973cc–1
2172T. 42 § 1973cc–2
2173T. 42 § 1973cc–3
2181T. 42 § 1973cc–11
2182T. 42 § 1973cc–12
2183T. 42 § 1973cc–13
2184T. 42 § 1973cc–14
2185T. 42 § 1973cc–15
2191T. 42 § 1973cc–21
2192T. 42 § 1973cc–22
2193T. 42 § 1973cc–23
2194T. 42 § 1973cc–24
2195T. 42 § 1973cc–25
2196T. 42 § 1973cc–26
2201–2209Rep.
22105311
2211(a)5312
2211(b)(1)–(14)5313
2211(b)(15) (less proviso)Elim.
2211(b)(15) (proviso)5314
2211(b)(16)–(19)5313
2211(c)(1)–(38)5314
2211(c)(39) (less proviso)Elim.
2211(c)(39) (proviso)5315
2211(c)(40)–(45)5314
2211(c)(46) (less proviso)Elim.
2211(c)(46) (proviso)5315
2211(c)(47)5314
2211(d)5315
2211(e)5316
2211(f)5317
2211(g)5315, 5316
22125363
22135364
2251(a)–(g)8331
2251(h)–(j)8341
2251(k)–(t)8331
2252(a)–(d)8331
2252(e)8347
2252(f)8331, 8347
2252(g)8331, 8332
2252(h)8331, 8332, 8347
2253(a)–(e)8332
2253(f), (g)8333
2253(h)–(j)8332
22548334
22558335
2256(a)–(e)8336
2256(f)8333, 8336
22578337
22588338
22598339
22608341
22618342
22628343
2263(a)3323
2263(b), (c)8344
22648345
22658346
2266(a)–(e)8347
2266(f)1308
2266(g)8347
22678348
22688340
22818311
22828312
2283(a)8314
2283(b), (c)8315
2283a8313
2284(a), (b)8316
2284(c), (d)8317
2284a(a)8317
2284a(b)8316
2285(a), (b)8318
2285(c)8320
22868321
22878319
22888322
2301(1)–(3)Elim.
2301(4)4117
23024101
23034102
23044113
23054118
23064103
23074104
23084105
23094109
23104108
23114106
2312, 23134107
23144114
23154115
23164116
2317(a)4113
2317(b), (c)1308
2318(a)4111
2318(b)4110
2318(c)4111
2318(d)4107
2318(e)4117
23194112
23313343, 3581
23323343
23333582, 3583
23343584
2351–2356T. 20 §§ 901–906
23575334
2358(a)5541, 6301
2358(b)T. 20 § 907
2358(c)8331, 8701
2371–2379T. 42 § 4271–4279
30018901
3002(a)–(f)8901, 8905, 8913
3002(g)Rep.
30038903
30048904
30058902
30068906
30078909
3008(a)Rep.
3008(b)8909
3009(a), (b)8913
3009(c)8908
3009(d)8907
30108910
30111308
30128911
3013(a)1104, 5109
3013(b)Rep.
30148912
3031Elim.
30325921
3033–30355922
30365923
30375924
30385925
30395913
3051–3060Elim.
30715521
30725522
30735523
30745524
30755525
30765527
3077Rep.
30785526
31013326, 3501, 5531, 6303. Elim. in part.
3102(a)–(e)5532
3102(f)–(h)Elim.
31033326
3104Elim.
3105(a)–(d)5533
3105(e)Elim.
3105(f)5533
3121–31275911

Statutory Notes and Related Subsidiaries
Enacting ClausePub. L. 89–554, § 1, Sept. 6, 1966, 80 Stat. 378, provided in part: “That the laws relating to the organization of the Government of the United States and to its civilian officers and employees, generally, are revised, codified, and enacted as title 5 of the United States Code, entitled ‘Government Organization and Employees’, and may be cited as ‘5 U.S.C., §    ’.”

Legislative Purpose: Inconsistent ProvisionsPub. L. 89–554, § 7(a), Sept. 6, 1966, 80 Stat. 631, provided that: “The legislative purpose in enacting sections 1–6 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act [Sept. 6, 1966]. Laws effective after June 30, 1965, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency.”

References to Other LawsPub. L. 89–554, § 7(b), Sept. 6, 1966, 80 Stat. 631, provided that: “A reference to a law replaced by sections 1–6 of this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act.”

Outstanding Orders, Rules and RegulationsPub. L. 89–554, § 7(c), Sept. 6, 1966, 80 Stat. 631, provided that: “An order, rule, or regulation in effect under a law replaced by sections 1–6 of this Act continues in effect under the corresponding provision enacted by this Act until repealed, amended, or superseded.”

Savings ProvisionPub. L. 89–554, § 7(d), Sept. 6, 1966, 80 Stat. 631, provided that: “An action taken or an offense committed under a law replaced by sections 1–6 of this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act.”

Legislative ConstructionPub. L. 89–554, § 7(e), Sept. 6, 1966, 80 Stat. 631, provided that: “An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act or by reason of the caption or catchline thereof.”

Pay, Allowances, Compensation, or AnnuityPub. L. 89–554, § 7(f), Sept. 6, 1966, 80 Stat. 631, provided that: “The enactment of this Act does not increase or decrease the pay, allowances, compensation, or annuity of any person.”

SeparabilityPub. L. 89–554, § 7(g), Sept. 6, 1966, 80 Stat. 631, provided that: “If a provision enacted by this Act is held invalid, all valid provisions that are separable from the invalid provision remain in effect. If a provision of this Act is held invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid application or applications.”

Applicability to Commissioned Officers of Public Health Service and Coast and Geodetic SurveyPub. L. 89–554, § 7(h), Sept. 6, 1966, 80 Stat. 632, provided that: “Sections 1–6 of this Act shall be construed to apply to commissioned officers of the Public Health Service and commissioned officers of the Coast and Geodetic Survey [now the National Oceanic and Atmospheric Administration] to the same extent that the laws replaced by those sections applied to these officers immediately before the date of enactment of this Act [Sept. 6, 1966].”

RepealsPub. L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 632, repealed the sections or parts thereof of the Revised Statutes or Statutes at Large codified in this title, except with respect to rights and duties that matured, penalties that were incurred, and proceedings that were begun, before Sept. 6, 1966, and except as provided by section 7 of Pub. L. 89–554.
Pub. L. 89–554, § 8(c), Sept. 6, 1966, 80 Stat. 632, provided that: “The repeal of a law by this Act may not be construed as a legislative inference that the provision was or was not in effect before its repeal.”

Continuation of Right to Deferred AnnuityPub. L. 89–554, § 8(b), Sept. 6, 1966, 80 Stat. 632, provided that: “The right to a deferred annuity on satisfaction of the conditions attached thereto is continued notwithstanding the repeal of the law conferring the right.”

Interagency Personnel RotationsPub. L. 112–239, div. A, title XI, § 1107, Jan. 2, 2013, 126 Stat. 1974, provided that:
“(a) Finding and Purpose.—“(1) Finding.—Congress finds that the national security and homeland security challenges of the 21st century require that executive branch personnel use a whole-of-Government approach in order for the United States Government to operate in the most effective and efficient manner.

“(2) Purpose.—The purpose of this section is to increase the efficiency and effectiveness of the Government by fostering greater interagency experience among executive branch personnel on national security and homeland security matters involving more than 1 agency.

“(b) Committee on National Security Personnel.—“(1) Establishment.—There is established a Committee on National Security Personnel within the Executive Office of the President.

“(2) Membership.—The members of the Committee shall include—“(A) designees of the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, the Assistant to the President for National Security Affairs, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security (1 member to be designated by each); and

“(B) such other members as the President shall designate.

“(c) Program Established.—“(1) Not later than 270 days after the date of the enactment of this Act [Jan. 2, 2013], the Committee on National Security Personnel, in consultation with representatives of such other agencies as the Committee determines to be appropriate, shall develop and issue a National Security Human Capital Strategy providing policies, processes, and procedures for a program for the interagency rotation of personnel among positions within National Security Interagency Communities of Interest.

“(2) The strategy required by paragraph (1) shall, at a minimum—“(A) identify specific Interagency Communities of Interest for the purpose of carrying out the program;

“(B) designate agencies to be included or excluded from the program;

“(C) define categories of positions to be covered by the program;

“(D) establish processes by which the heads of relevant agencies may identify—“(i) positions in Interagency Communities of Interest that are available for rotation under the program; and

“(ii) individual employees who are available to participate in rotational assignments under the program; and

“(E) promulgate procedures for the program, including—“(i) any minimum or maximum periods of service for participation in the program;

“(ii) any training and education requirements associated with participation in the program;

“(iii) any prerequisites or requirements for participation in the program; and

“(iv) appropriate performance measures, reporting requirements, and other accountability devices for the evaluation of the program.

“(d) Program Requirements.—The policies, processes, and procedures established pursuant to subsection (c) shall, at a minimum, provide that—“(1) during each of the first 4 fiscal years after the fiscal year in which this Act is enacted—“(A) the interagency rotation program shall be carried out in at least 2 Interagency Communities of Interest, of which 1 shall be an Interagency Community of Interest for emergency management and 1 shall be an Interagency Community of Interest for stabilization and reconstruction; and

“(B) not fewer than 20 employees in the executive branch of the Government shall be assigned to participate in the interagency personnel rotation program;

“(2) an employee’s participation in the interagency rotation program shall require the consent of the head of the agency and shall be voluntary on the part of the employee;

“(3) employees selected to perform interagency rotational service are selected in a fully open and competitive manner that is consistent with the merit system principles set forth in paragraphs (1) and (2) of section 2301(b) of title 5, United States Code, unless the Interagency Community of Interest position is otherwise exempt under another provision of law;

“(4) an employee performing service in a position in another agency pursuant to the program established under this section shall be entitled to return, within a reasonable period of time after the end of the period of service, to the position held by the employee, or a corresponding or higher position, in his or her employing agency;

“(5) an employee performing interagency rotational service shall have all the rights that would be available to the employee if the employee were detailed or assigned under a provision of law other than this section from the agency employing the employee to the agency in which the position in which the employee is serving is located; and

“(6) an employee participating in the program shall receive performance evaluations from officials in his or her employing agency that are based on input from the supervisors of the employee during his or her service in the program that are based primarily on the contribution of the employee to the work of the agency in which the employee performed such service, and these performance evaluations shall be provided the same weight in the receipt of promotions and other rewards by the employee from the employing agency as performance evaluations for service in the employing agency.

“(e) Selection of Individuals to Fill Senior Positions.—The head of each agency participating in the program established pursuant to subsection (c) shall ensure that, in selecting individuals to fill senior positions within an Interagency Community of Interest, the agency gives a strong preference to individuals who have performed interagency rotational service within the Interagency Community of Interest pursuant to such program.

“(f) Interagency Community of Interest Defined.—As used in this section, the term ‘National Security Interagency Community of Interest’ or ‘Interagency Community of Interest’ means the positions in the executive branch of the Government that, as determined by the Committee on National Security Personnel—“(1) as a group are positions within multiple agencies of the executive branch of the Government; and

“(2) have significant responsibility for the same substantive, functional, or regional subject area related to national security or homeland security that requires integration of the positions and activities in that area across multiple agencies to ensure that the executive branch of the Government operates as a single, cohesive enterprise to maximize mission success and minimize cost.

“(g) Report on Performance Measures.—Not later than the end of the 2nd fiscal year after the fiscal year in which this Act is enacted, the Committee on National Security Personnel shall assess the performance measures described in subsection (c)(2)(E)(iv) and issue a report to Congress on the assessment of those performance measures.

“(h) GAO Review.—Not later than the end of the 2nd fiscal year after the fiscal year in which this Act is enacted, the Comptroller General of the United States shall submit to Congress a report assessing the implementation and effectiveness of the interagency rotation program established pursuant to this section. The report required by this section shall address, at a minimum—“(1) the extent to which the requirements of this section have been implemented by the Committee on National Security Personnel and by national security agencies;

“(2) the extent to which national security agencies have participated in the program established pursuant to this section, including whether the heads of such agencies have—“(A) identified positions within the agencies that are National Security Interagency Communities of Interest and had employees from other agencies serve in rotational assignments in such positions; and

“(B) identified employees who are eligible for rotational assignments in National Security Interagency Communities of Interest and had such employees serve in rotational assignments in other agencies;

“(3) the extent to which employees serving in rotational assignments under the program established pursuant to this section have benefitted from such assignments, including an assessment of—“(A) the period of service;

“(B) the duties performed by the employees during such service;

“(C) the value of the training and experience gained by participating employees through such service; and

“(D) the positions (including grade level) held by employees before and after completing interagency rotational service under this section; and

“(4) the extent to which interagency rotational service under this section has improved or is expected to improve interagency integration and coordination within National Security Interagency Communities of Interest.

“(i) Exclusion.—This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).”

Improvement of United States Code by Pub. L. 90–83; Legislative Purpose; Inconsistent Provisions; Corresponding Provisions; Savings and Separability of ProvisionsPub. L. 90–83, § 9(a)–(g), Sept. 11, 1967, 81 Stat. 222, provided that:
“(a) The legislative purpose in enacting sections 1–8 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act. Laws effective after February 21, 1967, that are inconsistent with this Act are considered as superseding it to the extent of the inconsistency.

“(b) A reference to a law replaced by sections 1–8 of this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act.

“(c) An order, rule, or regulation in effect under a law replaced by sections 1–8 of this Act continues in effect under the corresponding provision enacted by this Act until repealed, amended, or superseded.

“(d) An action taken or an offense committed under a law replaced by sections 1–8 of this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act.

“(e) An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act or by reason of the caption or catchline thereof.

“(f) The enactment of this Act does not increase or decrease the pay, allowances, compensation, or annuity of any person.

“(g) If a provision enacted by this Act is held invalid, all valid provisions that are severable from the invalid provision remain in effect. If a provision of this Act is held invalid in one or more of its applications, the provision remains in effect in all valid applications that are severable from the invalid application or applications.”

PART I—THE AGENCIES GENERALLY

Chap.

Sec.

1.Organization101

3.Powers301

5.Administrative Procedure11 Pub. L. 90–83 added section 500 to chapter 5 without making a corresponding change in Part analysis. 501

6.22 Editorially supplied. Chapter 6 added by Pub. L. 96–354 without a corresponding amendment of Part analysis.The Analysis of Regulatory Functions601

7.Judicial Review701

8.Congressional Review of Agency Rulemaking801

9.Executive Reorganization901

Editorial Notes

Amendments

1996—Pub. L. 104–121, title II, § 253, Mar. 29, 1996, 110 Stat. 874, added item for chapter 8.

CHAPTER 1—ORGANIZATION

Sec.

101.Executive departments.

102.Military departments.

103.Government corporation.

104.Independent establishment.

105.Executive agency.

§ 101. Executive departments
The Executive departments are:
The Department of State.
The Department of the Treasury.
The Department of Defense.
The Department of Justice.)
The Department of the Interior.
The Department of Agriculture.
The Department of Commerce.
The Department of Labor.
The Department of Health and Human Services.
The Department of Housing and Urban Development.
The Department of Transportation.
The Department of Energy.
The Department of Education.
The Department of Veterans Affairs.
The Department of Homeland Security.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378; Pub. L. 89–670, § 10(b), Oct. 15, 1966, 80 Stat. 948; Pub. L. 91–375, § 6(c)(1), Aug. 12, 1970, 84 Stat. 775; Pub. L. 95–91, title VII, § 710(a), Aug. 4, 1977, 91 Stat. 609; Pub. L. 96–88, title V, § 508(b), Oct. 17, 1979, 93 Stat. 692; Pub. L. 100–527, § 13(b), Oct. 25, 1988, 102 Stat. 2643; Pub. L. 109–241, title IX, § 902(a)(1), July 11, 2006, 120 Stat. 566.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1.R.S. § 158.Feb. 9, 1889, ch. 122, § 1 (38th through 54th words), 25 Stat. 659.
  Feb. 14, 1903, ch. 552, § 1 (83d through 99th words), 32 Stat. 825.
  Mar. 4, 1913, ch. 141, § 1 (75th through 91st words), 37 Stat. 736.
  Aug. 10, 1949, ch. 412, § 4 “Sec. 201(c)”, 63 Stat. 579.
  July 31, 1956, ch. 802, § 1(a), 70 Stat. 732.
 5 U.S.C. 2.R.S. § 159.

The reference in former section 1 to the application of the provisions of this title, referring to title IV of the Revised Statutes, is omitted as unnecessary as the application of those provisions is stated in the text.
The statement in former section 2 that the use of the word “department” means one of the Executive departments named in former section 1 is omitted as unnecessary as the words “Executive department” are used in this title when Executive department is meant.
“The Department of Commerce” is substituted for “The Department of Commerce and Labor” on authority of the act of March 4, 1913, ch. 141, § 1, 37 Stat. 736.

Editorial Notes
Amendments2006—Pub. L. 109–241 inserted “The Department of Homeland Security.”
1988—Pub. L. 100–527 inserted “The Department of Veterans Affairs.”
1979—Pub. L. 96–88 substituted “Department of Health and Human Services” for “Department of Health, Education, and Welfare” and inserted “The Department of Education.”
1977—Pub. L. 95–91 inserted “The Department of Energy.”
1970—Pub. L. 91–375 struck out “The Post Office Department.”
1966—Pub. L. 89–670 inserted “The Department of Housing and Urban Development.” and “The Department of Transportation.”

Statutory Notes and Related Subsidiaries
Effective Date of 1988 AmendmentAmendment by Pub. L. 100–527 effective Mar. 15, 1989, see section 18(a) of Pub. L. 100–527, set out as a Department of Veterans Affairs Act note under section 301 of Title 38, Veterans’ Benefits.

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–88 effective May 4, 1980, with specified exceptions, see section 601 of Pub. L. 96–88, set out as an Effective Date note under section 3401 of Title 20, Education.

Effective Date of 1970 AmendmentAmendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective Date of 1966 AmendmentAmendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by the President and published in the Federal Register, see section 16(a), formerly § 15(a), of Pub. L. 89–670 and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453.

Short Title of 2021 AmendmentPub. L. 117–17, § 1, June 17, 2021, 135 Stat. 287, provided that: “This Act [amending section 6103 of this title] may be cited as the ‘Juneteenth National Independence Day Act’.”

Pub. L. 116–283, div. A, title XI, § 1131, Jan. 1, 2021, 134 Stat. 3900, provided that: “This subtitle [subtitle B (§§ 1131–1138) of title XI of div. A of Pub. L. 116–283, amending section 2302 of this title and enacting and amending provisions set out as notes under section 2301 of this title] may be cited as the ‘Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020’.”

Short Title of 2020 AmendmentPub. L. 116–269, § 1, Dec. 30, 2020, 134 Stat. 3323, provided that: “This Act [amending provisions set out as a note under section 5547 of this title] may be cited as the ‘Secret Service Overtime Pay Extension Act’.”

Pub. L. 116–126, § 1, Mar. 18, 2020, 134 Stat. 174, provided that: “This Act [enacting sections 8345a and 8466a of this title, amending sections 8331, 8345, 8348, 8401, and 8466 of this title, and enacting provisions set out as notes under section 8331 of this title] may be cited as the ‘Representative Payee Fraud Prevention Act of 2019’.”

Short Title of 2019 AmendmentPub. L. 116–92, div. A, title XI, § 1121, Dec. 20, 2019, 133 Stat. 1605, provided that: “This subtitle [subtitle B (§§ 1121–1124) of title XI of Pub. L. 116–92, enacting chapter 92 of this title, section 1316b of Title 2, The Congress, section 2339 of Title 10, Armed Forces, and section 4714 of Title 41, Public Contracts, amending sections 1302 and 1317 of Title 2, section 62 of Title 26, Internal Revenue Code, and section 604 of Title 28, Judiciary and Judicial Procedure, and enacting provisions set out as notes under sections 9201 and 9202 of this title, section 2339 of Title 10, section 10132 of Title 34, Crime Control and Law Enforcement, and section 4714 of Title 41] may be cited as the ‘Fair Chance to Compete for Jobs Act of 2019’ or the ‘Fair Chance Act’.”

Pub. L. 116–92, div. F, title LXXVI, § 7601, Dec. 20, 2019, 133 Stat. 2304, provided that: “This subtitle [subtitle A (§§ 7601–7606) of title LXXVI of Pub. L. 116–92, amending section 6382 of this title, section 1312 of Title 2, The Congress, and sections 2611 and 2612 of Title 29, Labor, enacting provisions set out as notes under section 6382 of this title, section 1312 of Title 2, and sections 2611 and 2612 of Title 29, and amending provisions set out as a note under section 44935 of Title 49, Transportation] may be cited as the ‘Federal Employee Paid Leave Act’.”

Pub. L. 116–50, § 1, Aug. 22, 2019, 133 Stat. 1073, provided that: “This Act [enacting provisions set out as a note under section 552a of this title] may be cited as the ‘Creating Advanced Streamlined Electronic Services for Constituents Act of 2019’ or the ‘CASES Act’.”

Pub. L. 115–435, § 1(a), Jan. 14, 2019, 132 Stat. 5529, provided that: “This Act [enacting subchapter II of chapter 3 of this title, subchapter III of chapter 35 of Title 44, Public Printing and Documents, and section 3520A of Title 44, amending section 306 of this title, section 402 of Title 13, Census, section 176a of Title 15, Commerce and Trade, sections 3502, 3504, 3506, 3511, and 3520 of Title 44, and sections 6302 and 6314 of Title 49, Transportation, enacting provisions set out as notes under sections 306 and 311 of this title and sections 101, 3506, and 3561 of Title 44, amending provisions set out as a note under section 20155 of Title 49, and repealing provisions set out as a note under section 3501 of Title 44] may be cited as the ‘Foundations for Evidence-Based Policymaking Act of 2018’.”

Short Title of 2018 AmendmentPub. L. 115–383, § 1, Dec. 21, 2018, 132 Stat. 5121, provided that: “This Act [amending provisions set out as a note under section 5547 of this title] may be cited as the ‘Secret Service Overtime Pay Extension Act’.”

Pub. L. 115–352, § 1, Dec. 21, 2018, 132 Stat. 5067, provided that: “This Act [amending sections 8334 and 8422 of this title and enacting provisions set out as a note under section 8334 of this title], may be cited as the ‘Correcting Miscalculations in Veterans’ Pensions Act’.”

Pub. L. 115–238, § 1, Sept. 7, 2018, 132 Stat. 2450, provided that: “This Act [amending section 6329 of this title and enacting provisions set out as a note under section 6329 of this title] may be cited as the ‘Veterans Providing Healthcare Transition Improvement Act’.”

Pub. L. 115–195, § 1, July 7, 2018, 132 Stat. 1510, provided that: “This Act [amending section 7703 of this title and enacting provisions set out as a note under section 7703 of this title] may be cited as the ‘All Circuit Review Act’.”

Pub. L. 115–160, § 1, Apr. 3, 2018, 132 Stat. 1246, provided that: “This Act [enacting and amending provisions set out as notes under section 5547 of this title] may be cited as the ‘Secret Service Recruitment and Retention Act of 2018’.”

Short Title of 2017 AmendmentPub. L. 115–84, § 1, Nov. 17, 2017, 131 Stat. 1272, provided that: “This Act [amending sections 8432b and 8433 of this title and enacting provisions set out as notes under sections 8432b and 8433 of this title] may be cited as the ‘TSP Modernization Act of 2017’.”

Pub. L. 115–73, § 1(a), Oct. 26, 2017, 131 Stat. 1235, provided that: “This Act [enacting sections 2307 and 7515 of this title, amending sections 1214, 1221, 2302, 4505a, and 5755 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under sections 1212 and 2301 of this title and section 703 of Title 38, Veterans’ Benefits, and amending provisions set out as a note under section 2302 of this title] may be cited as the ‘Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017’.”

Pub. L. 115–40, § 1, June 14, 2017, 131 Stat. 861, provided that: “This Act [amending section 2302 of this title] may be cited as the ‘Follow the Rules Act’.”

Pub. L. 115–34, § 1, May 16, 2017, 131 Stat. 846, provided that: “This Act [amending section 5707 of this title and enacting provisions set out as a note under section 5707 of this title] may be cited as the ‘Modernizing Government Travel Act’.”

Pub. L. 115–1, § 1, Jan. 20, 2017, 131 Stat. 3, provided that: “This Act [enacting sections 3171 and 3172 of this title and provisions set out as a note under section 3171 of this title] may be cited as the ‘Tested Ability to Leverage Exceptional National Talent Act of 2017’ or the ‘TALENT Act of 2017’.”

Short Title of 2016 AmendmentPub. L. 114–328, div. A, title XI, § 1138(a), Dec. 23, 2016, 130 Stat. 2460, provided that: “This section [enacting sections 6329a to 6329c of this title, amending section 6502 of this title, and enacting provisions set out as notes under section 6329a of this title] may be cited as the ‘Administrative Leave Act of 2016’.”

Pub. L. 114–302, § 1, Dec. 16, 2016, 130 Stat. 1516, provided that: “This Act [amending section 2303 of this title] may be cited as the ‘Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016’.”

Pub. L. 114–185, § 1, June 30, 2016, 130 Stat. 538, provided that: “This Act [amending section 552 of this title and section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under section 552 of this title] may be cited as the ‘FOIA Improvement Act of 2016’.”

Pub. L. 114–137, § 1, Mar. 18, 2016, 130 Stat. 310, provided that: “This Act [amending sections 3318, 3319, and 9510 of this title and enacting provisions set out as a note under section 3318 of this title] may be cited as the ‘Competitive Service Act of 2015’.”

Pub. L. 114–136, § 1, Mar. 18, 2016, 130 Stat. 301, provided that: “This Act [amending sections 8331, 8701, and 8901 of this title and section 2203 of Title 44, Public Printing and Documents, enacting provisions set out as a note under section 3101 of this title, amending provisions set out as a note under section 102 of Title 3, The President, and repealing provisions set out as a note under section 102 of Title 3] may be cited as the ‘Edward “Ted” Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015’.”

Short Title of 2015 AmendmentPub. L. 114–75, § 1, Nov. 5, 2015, 129 Stat. 640, provided that: “This Act [enacting section 6329 of this title and provisions set out as notes under section 6329 of this title] may be cited as the ‘Wounded Warriors Federal Leave Act of 2015’.”

Pub. L. 114–62, § 1, Oct. 7, 2015, 129 Stat. 547, provided that: “This Act [amending section 2108 of this title and enacting provisions set out as a note under section 2108 of this title] may be cited as the ‘Gold Star Fathers Act of 2015’.”

Pub. L. 114–47, § 1, Aug. 7, 2015, 129 Stat. 485, provided that: “This Act [enacting chapter 96 of this title] may be cited as the ‘Land Management Workforce Flexibility Act’.”

Short Title of 2014 AmendmentPub. L. 113–277, § 1, Dec. 18, 2014, 128 Stat. 2995, provided that: “This Act [enacting section 5550 of this title and section 147 of Title 6, Domestic Security, amending sections 3132, 5542, 5547, and 8331 of this title and section 213 of Title 29, Labor, and enacting provisions set out as notes under sections 5542 and 5550 of this title and section 146 of Title 6] may be cited as the ‘Border Patrol Agent Pay Reform Act of 2014’.”

Pub. L. 113–255, § 1, Dec. 18, 2014, 128 Stat. 2920, provided that: “This Act [amending sections 8438, 8439, 8472, and 8477 of this title and enacting provisions set out as notes under section 8438 of this title] may be cited as the ‘Smart Savings Act’.”

Pub. L. 113–170, § 1, Sept. 26, 2014, 128 Stat. 1894, provided that: “This Act [amending section 7703 of this title] may be cited as the ‘All Circuit Review Extension Act’.”

Pub. L. 113–80, § 1, Feb. 12, 2014, 128 Stat. 1006, provided that: “This Act [amending section 1304 of this title] may be cited as the ‘OPM IG Act’.”

Short Title of 2012 AmendmentPub. L. 112–230, § 1, Dec. 28, 2012, 126 Stat. 1616, provided that: “This Act [enacting section 7326 of this title, amending sections 1501, 1502, 1506, 7322, and 7325 of this title, repealing former section 7326 of this title, and enacting provisions set out as notes under sections 1501 and 7326 of this title] may be cited as the ‘Hatch Act Modernization Act of 2012’.”

Pub. L. 112–199, § 1, Nov. 27, 2012, 126 Stat. 1465, provided that: “This Act [enacting section 2304 of this title, amending sections 1204, 1212, 1214, 1215, 1221, 2302, and 7703 of this title, sections 3 and 8D of the Inspector General Act of 1978, Pub. L. 95–452, set out in the Appendix to this title, and section 133 of Title 6, Domestic Security, renumbering sections 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title and enacting provisions set out as notes under sections 1204, 2302, and 2304 of this title, section 3 of the Inspector General Act of 1978, and section 1116 of Title 31, Money and Finance] may be cited as the ‘Whistleblower Protection Enhancement Act of 2012’.”

Pub. L. 112–166, § 1, Aug. 10, 2012, 126 Stat. 1283, provided that: “This Act [see Tables for classification] may be cited as the ‘Presidential Appointment Efficiency and Streamlining Act of 2011’.”

Short Title of 2010 AmendmentPub. L. 111–292, § 1, Dec. 9, 2010, 124 Stat. 3165, provided that: “This Act [enacting chapter 65 and section 5711 of this title and provisions set out as a note under section 6501 of this title and amending provisions set out as a note and provisions listed in a table under section 6120 of this title] may be cited as the ‘Telework Enhancement Act of 2010’.”

Pub. L. 111–282, § 1(a), Oct. 15, 2010, 124 Stat. 3033, provided that: “This Act [enacting chapter 102 of this title, amending sections 5102, 5541, 6304, and 6324 of this title, enacting provisions set out as notes under sections 5102 and 10201 of this title, and amending provisions set out as notes under section 3056A of Title 18, Crimes and Criminal Procedure] may be cited as the ‘United States Secret Service Uniformed Division Modernization Act of 2010’.”

Pub. L. 111–178, § 1, June 9, 2010, 124 Stat. 1262, provided that: “This Act [enacting section 5724d of this title and provisions set out as a note under section 5724d of this title] may be cited as the ‘Special Agent Samuel Hicks Families of Fallen Heroes Act’.”

Short Title of 2009 AmendmentPub. L. 111–83, title V, § 564(a), Oct. 28, 2009, 123 Stat. 2184, provided that: “This section [amending section 552 of this title] may be cited as the ‘OPEN FOIA Act of 2009’.”

Pub. L. 111–31, div. B, § 100(a), June 22, 2009, 123 Stat. 1852, provided that: “This division [enacting sections 8432d and 8480 of this title, amending sections 8432, 8433, 8437 to 8439, and 8477 of this title and section 1450 of Title 10, Armed Forces, and enacting provisions set out as notes under this section and section 8439 of this title] may be cited as the ‘Federal Retirement Reform Act of 2009’.”

Pub. L. 111–31, div. B, title I, § 101, June 22, 2009, 123 Stat. 1853, provided that: “This title [enacting sections 8432d and 8480 of this title, amending sections 8432, 8433, 8437 to 8439, and 8477 of this title, and enacting provisions set out as a note under section 8439 of this title] may be cited as the ‘Thrift Savings Plan Enhancement Act of 2009’.”

Short Title of 2008 AmendmentPub. L. 110–372, § 1, Oct. 8, 2008, 122 Stat. 4043, provided that: “This Act [amending sections 3104, 3324, 3325, 5108, 5304, 5307 and 5376 of this title and enacting provisions set out as notes under sections 5307 and 5376 of this title] may be cited as the ‘Senior Professional Performance Act of 2008’.”

Pub. L. 110–290, § 1, July 30, 2008, 122 Stat. 2914, provided that: “This Act [amending section 596 of this title] may be cited as the ‘Regulatory Improvement Act of 2007’.”

Short Title of 2007 AmendmentPub. L. 110–175, § 1, Dec. 31, 2007, 121 Stat. 2524, provided that: “This Act [amending section 552 of this title and enacting provisions set out as notes under section 552 of this title] may be cited as the ‘Openness Promotes Effectiveness in our National Government Act of 2007’ or the ‘OPEN Government Act of 2007’.”

Short Title of 2006 AmendmentPub. L. 109–435, title VIII, § 801, Dec. 20, 2006, 120 Stat. 3249, provided that: “This title [enacting section 8909a of this title, amending sections 8334, 8348, and 8906 of this title, enacting provisions set out as notes under sections 8334, 8348, and 8909a of this title, and repealing provisions set out as a note preceding section 2001 of Title 39, Postal Service] may be cited as the ‘Postal Civil Service Retirement and Health Benefits Funding Amendments of 2006’.”

Pub. L. 109–356, § 1(a), Oct. 16, 2006, 120 Stat. 2019, provided that: “This Act [amending sections 5102, 8951, 8981, and 9001 of this title, sections 202, 214, 215b, 216, 216a, 221, 321, and 1813 of Title 12, Banks and Banking, and section 57a of Title 15, Commerce and Trade] may be cited as the ‘2005 District of Columbia Omnibus Authorization Act’.”

Short Title of 2004 AmendmentsPub. L. 108–496, § 1, Dec. 23, 2004, 118 Stat. 4001, provided that: “This Act [enacting chapters 89A and 89B of this title, amending section 1005 of Title 39, Postal Service, and enacting provisions set out as a note under section 8951 of this title] may be cited as the ‘Federal Employee Dental and Vision Benefits Enhancement Act of 2004’.”

Pub. L. 108–469, § 1(a), Dec. 21, 2004, 118 Stat. 3891, provided that: “This Act [amending sections 8351, 8432, 8433, 8439, and 8440a to 8440e of this title and enacting provisions set out as a note under section 8350 of this title] may be cited as the ‘Thrift Savings Plan Open Elections Act of 2004’.”

Pub. L. 108–411, § 1(a), Oct. 30, 2004, 118 Stat. 2305, provided that: “This Act [enacting sections 4121, 5550b, 5753, and 5754 of this title, amending sections 4103, 4505a, 5302, 5304, 5305, 5314, 5334, 5361, 5363, 5365, 5377, and 6303 of this title, repealing former sections 5753 and 5754 of this title, enacting provisions set out as notes under sections 5304, 5363, 5550b, 5753, and 6303 of this title, and amending provisions set out as a note under section 5305 of this title] may be cited as the ‘Federal Workforce Flexibility Act of 2004’.”

Pub. L. 108–401, § 1, Oct. 30, 2004, 118 Stat. 2255, provided that: “This Act [amending sections 591, 594, and 596 of this title] may be cited as the ‘Federal Regulatory Improvement Act of 2004’.”

Pub. L. 108–201, § 1, Feb. 24, 2004, 118 Stat. 461, provided that: “This Act [enacting chapter 98 of this title, amending section 2473 of Title 42, The Public Health and Welfare, and enacting provisions set out as a note under section 2473 of Title 42] may be cited as the ‘NASA Flexibility Act of 2004’.”

Short Title of 2003 AmendmentsPub. L. 108–196, § 1, Dec. 19, 2003, 117 Stat. 2896, provided that: “This Act [enacting provisions set out as a note under section 3371 of this title] may be cited as the ‘Federal Law Enforcement Pay and Benefits Parity Act of 2003’.”

Pub. L. 108–123, § 1, Nov. 11, 2003, 117 Stat. 1345, provided that: “This Act [amending section 5379 of this title] may be cited as the ‘Federal Employee Student Loan Assistance Act’.”

Pub. L. 108–44, § 1, July 3, 2003, 117 Stat. 842, provided that: “This Act [enacting section 3114 of this title] may be cited as the ‘Accountant, Compliance, and Enforcement Staffing Act of 2003’.”

Pub. L. 108–18, § 1, Apr. 23, 2003, 117 Stat. 624, provided that: “This Act [amending sections 8331, 8334, and 8348 of this title, enacting provisions set out as notes under sections 8334 and 8348 of this title and preceding section 2001 of Title 39, Postal Service, and repealing provisions set out as a note under section 8348 of this title] may be cited as the ‘Postal Civil Service Retirement System Funding Reform Act of 2003’.”

Short Title of 2002 AmendmentPub. L. 107–296, title XIII, § 1301, Nov. 25, 2002, 116 Stat. 2287, provided that: “This title [enacting chapter 14 of this title, subchapter II of chapter 35 of this title, and section 3319 of this title, amending sections 1103, 3111, 3304, 3393, 3592 to 3594, 4107, 5307, 7701, 7905, 8336, 8339, 8414, and 8421 of this title, sections 1115 and 1116 of Title 31, Money and Finance, and section 1902 of Title 50, War and National Defense, repealing section 3393a of this title, enacting provisions set out as notes under sections 1103, 1401, 3301, 3521, 3592, 3593, and 8336 of this title, and repealing provisions set out as notes under sections 8336 and 8414 of this title] may be cited as the ‘Chief Human Capital Officers Act of 2002’.”

Short Title of 2001 AmendmentPub. L. 107–27, § 1, Aug. 20, 2001, 115 Stat. 207, provided that: “This Act [amending sections 8335 and 8425 of this title] may be cited as the ‘Federal Firefighters Retirement Age Fairness Act’.”

Prohibition Against Construction That Would Render Applicable to the Department of Transportation Provisions of Law Inconsistent With Pub. L. 89–670 Creating the Department of TransportationPub. L. 89–670, § 10(c), Oct. 15, 1966, 80 Stat. 948, which provided that the amendment made to this section by section 10(b) of Pub. L. 89–670 was not to be construed to make applicable to the Department any provision of law inconsistent with Pub. L. 89–670, was repealed by Pub. L. 104–287, § 7(5), Oct. 11, 1996, 110 Stat. 3400.

§ 102. Military departments
The military departments are:
The Department of the Army.
The Department of the Navy.
The Department of the Air Force.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378.)

Historical and Revision NotesThe section is supplied to avoid the necessity for defining “military departments” each time it is used in this title. See section 101(7) of title 10.

§ 103. Government corporation
For the purpose of this title—(1) “Government corporation” means a corporation owned or controlled by the Government of the United States; and

(2) “Government controlled corporation” does not include a corporation owned by the Government of the United States.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378.)

Historical and Revision NotesThe section is supplied to avoid the necessity for defining “Government corporation” and “Government controlled corporation” each time it is used in this title.

§ 104. Independent establishment
For the purpose of this title, “independent establishment” means—(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Regulatory Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and

(2) the Government Accountability Office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 91–375, § 6(c)(2), Aug. 12, 1970, 84 Stat. 775; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat. 3241.)

Historical and Revision NotesThe section is supplied to avoid the necessity for defining “independent establishment” each time it is used in this title.
Certain agencies are not independent establishments under the definition since they are constituent agencies or parts of an independent establishment. However, these agencies would continue to be subject to the provisions of this title applicable to the independent establishment of which they are a constituent or part. Also, the definition does not expand or abridge any rights or authority possessed by these agencies as no substantive changes are intended, see section 7(a) of the bill.

Editorial Notes
Amendments2006—Par. (1). Pub. L. 109–435 substituted “Postal Regulatory Commission” for “Postal Rate Commission”.
2004—Par. (2). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.
1970—Par. (1). Pub. L. 91–375 inserted “(other than the United States Postal Service or the Postal Rate Commission)” after “executive branch”.

Statutory Notes and Related Subsidiaries
Effective Date of 1970 AmendmentAmendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

§ 105. Executive agency
For the purpose of this title, “Executive agency” means an Executive department, a Government corporation, and an independent establishment.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379.)

Historical and Revision NotesThe section is supplied to avoid the necessity for defining “Executive agency” each time it is used in this title.

CHAPTER 3—POWERS

SUBCHAPTER I—GENERAL PROVISIONS

Sec.

301.Departmental regulations.

302.Delegation of authority.

303.Oaths to witnesses.

304.Subpenas.

305.Systematic agency review of operations.

306.Agency strategic plans.

SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES

311.Definitions.

312.Agency evidence-building plan.

313.Evaluation Officers.

314.Statistical expertise.

315.Advisory Committee on Data for Evidence Building.

Editorial Notes
Amendments2019—Pub. L. 115–435, title I, § 101(b), Jan. 14, 2019, 132 Stat. 5532, added headings for subchapters I and II and items 311 to 315.
2011—Pub. L. 111–352, § 13(a), Jan. 4, 2011, 124 Stat. 3882, added item 306 and struck out former item 306 “Strategic plans”.
1993—Pub. L. 103–62, § 11(a), Aug. 3, 1993, 107 Stat. 295, added item 306.

SUBCHAPTER I—GENERAL PROVISIONS

Editorial Notes
Amendments2019—Pub. L. 115–435, title I, § 101(a)(1), Jan. 14, 2019, 132 Stat. 5529, inserted subchapter heading.

§ 301. Departmental regulations
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 22.R.S. § 161.Aug. 12, 1958, Pub. L. 85–619, 72 Stat. 547.

The words “Executive department” are substituted for “department” as the definition of “department” applicable to this section is coextensive with the definition of “Executive department” in section 101. The words “not inconsistent with law” are omitted as surplusage as a regulation which is inconsistent with law is invalid.
The words “or military department” are inserted to preserve the application of the source law. 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 law for this section, 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 provided:
“All laws, orders, regulations, and other actions relating to the National Military Establishment, the Departments of the Army, the Navy, or the Air Force, or to any officer or activity of such establishment or such departments, shall, except to the extent inconsistent with the provisions of this Act, have the same effect as if this Act had not been enacted; but, after the effective date of this Act, any such law, order, regulation, or other action which vested functions in or otherwise related to any officer, department, or establishment, shall be deemed to have vested such function in or relate to the officer, or department, executive or military, succeeding the officer, department, or establishment in which such function was vested. For purposes of this subsection the Department of Defense shall be deemed the department succeeding the National Military Establishment, and the military departments of Army, Navy, and Air Force shall be deemed the departments succeeding the Executive Departments of Army, Navy, and Air Force.”

This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 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.

Statutory Notes and Related Subsidiaries
Federal Cybersecurity Workforce AssessmentPub. L. 114–113, div. N, title III, Dec. 18, 2015, 129 Stat. 2975, as amended by Pub. L. 116–283, div. H, title XCIV, § 9401(g)(4)(A), Jan. 1, 2021, 134 Stat. 4809, provided that:
“SEC. 301. SHORT TITLE.“This title may be cited as the ‘Federal Cybersecurity Workforce Assessment Act of 2015’.

“SEC. 302. DEFINITIONS.“In this title:“(1) Appropriate congressional committees.—The term ‘appropriate congressional committees’ means—“(A) the Committee on Armed Services of the Senate;

“(B) the Committee on Homeland Security and Governmental Affairs of the Senate;

“(C) the Select Committee on Intelligence of the Senate;

“(D) the Committee on Commerce, Science, and Transportation of the Senate;

“(E) the Committee on Armed Services of the House of Representatives;

“(F) the Committee on Homeland Security of the House of Representatives;

“(G) the Committee on Oversight and Government Reform of the House of Representatives; and

“(H) the Permanent Select Committee on Intelligence of the House of Representatives.

“(2) Director.—The term ‘Director’ means the Director of the Office of Personnel Management.

“(3) National initiative for cybersecurity education.—The term ‘National Initiative for Cybersecurity Education’ means the initiative under the national cybersecurity awareness and education program, as authorized under section 303 of the Cybersecurity Enhancement Act of 2014 (Public Law 113–274) [15 U.S.C. 7443].

“(4) Work roles.—The term ‘work roles’ means a specialized set of tasks and functions requiring specific knowledge, skills, and abilities.

“SEC. 303. NATIONAL CYBERSECURITY WORKFORCE MEASUREMENT INITIATIVE.“(a) In General.—The head of each Federal agency shall—“(1) identify all positions within the agency that require the performance of cybersecurity or other cyber-related functions; and

“(2) assign the corresponding employment code under the National Initiative for Cybersecurity Education in accordance with subsection (b).

“(b) Employment Codes.—“(1) Procedures.—“(A) Coding structure.—Not later than 180 days after the date of the enactment of this Act [Dec. 18, 2015], the Director, in coordination with the National Institute of Standards and Technology, shall develop a coding structure under the National Initiative for Cybersecurity Education.

“(B) Identification of civilian cyber personnel.—Not later than 9 months after the date of enactment of this Act, the Director, in coordination with the Secretary of Homeland Security, the Director of the National Institute of Standards and Technology, and the Director of National Intelligence, shall establish procedures to implement the National Initiative for Cybersecurity Education coding structure to identify all Federal civilian positions that require the performance of information technology, cybersecurity, or other cyber-related functions.

“(C) Identification of noncivilian cyber personnel.—Not later than 18 months after the date of enactment of this Act, the Secretary of Defense shall establish procedures to implement the National Initiative for Cybersecurity Education’s coding structure to identify all Federal noncivilian positions that require the performance of information technology, cybersecurity, or other cyber-related functions.

“(D) Baseline assessment of existing cybersecurity workforce.—Not later than 3 months after the date on which the procedures are developed under subparagraphs (B) and (C), respectively, the head of each Federal agency shall submit to the appropriate congressional committees of jurisdiction a report that identifies—“(i) the percentage of personnel with information technology, cybersecurity, or other cyber-related job functions who currently hold the appropriate industry-recognized certifications as identified under the National Initiative for Cybersecurity Education;

“(ii) the level of preparedness of other civilian and noncivilian cyber personnel without existing credentials to take certification exams; and

“(iii) a strategy for mitigating any gaps identified in clause (i) or (ii) with the appropriate training and certification for existing personnel.

“(E) Procedures for assigning codes.—Not later than 3 months after the date on which the procedures are developed under subparagraphs (B) and (C), respectively, the head of each Federal agency shall establish procedures—“(i) to identify all encumbered and vacant positions with information technology, cybersecurity, or other cyber-related functions (as defined in the National Initiative for Cybersecurity Education’s coding structure); and

“(ii) to assign the appropriate employment code to each such position, using agreed standards and definitions.

“(2) Code assignments.—Not later than 1 year after the date after the procedures are established under paragraph (1)(E), the head of each Federal agency shall complete assignment of the appropriate employment code to each position within the agency with information technology, cybersecurity, or other cyber-related functions.

“(c) Progress Report.—Not later than 180 days after the date of enactment of this Act, the Director shall submit a progress report on the implementation of this section to the appropriate congressional committees.

“SEC. 304. IDENTIFICATION OF CYBER-RELATED WORK ROLES OF CRITICAL NEED.“(a) In General.—Beginning not later than 1 year after the date on which the employment codes are assigned to employees pursuant to section 303(b)(2), and annually thereafter through 2022, the head of each Federal agency, in consultation with the Director, the Director of the National Institute of Standards and Technology, and the Secretary of Homeland Security, shall—“(1) identify information technology, cybersecurity, or other cyber-related work roles of critical need in the agency’s workforce; and

“(2) submit a report to the Director that—“(A) describes the information technology, cybersecurity, or other cyber-related roles identified under paragraph (1); and

“(B) substantiates the critical need designations.

“(b) Guidance.—The Director shall provide Federal agencies with timely guidance for identifying information technology, cybersecurity, or other cyber-related roles of critical need, including—“(1) current information technology, cybersecurity, and other cyber-related roles with acute skill shortages; and

“(2) information technology, cybersecurity, or other cyber-related roles with emerging skill shortages.

“(c) Cybersecurity Needs Report.—Not later than 2 years after the date of the enactment of this Act [Dec. 18, 2015], the Director, in consultation with the Secretary of Homeland Security, shall—“(1) identify critical needs for information technology, cybersecurity, or other cyber-related workforce across all Federal agencies; and

“(2) submit a progress report on the implementation of this section to the appropriate congressional committees.

“SEC. 305. GOVERNMENT ACCOUNTABILITY OFFICE STATUS REPORTS.“The Comptroller General of the United States shall—“(1) analyze and monitor the implementation of sections 303 and 304; and

“(2) not later than 3 years after the date of the enactment of this Act [Dec. 18, 2015], submit a report to the appropriate congressional committees that describes the status of such implementation.”

Plain Writing in Government DocumentsPub. L. 111–274, Oct. 13, 2010, 124 Stat. 2861, provided that:
“SECTION 1. SHORT TITLE.“This Act may be cited as the ‘Plain Writing Act of 2010’.

“SEC. 2. PURPOSE.“The purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use.

“SEC. 3. DEFINITIONS.“In this Act:“(1) Agency.—The term ‘agency’ means an Executive agency, as defined under section 105 of title 5, United States Code.

“(2) Covered document.—The term ‘covered document’—“(A) means any document that—“(i) is necessary for obtaining any Federal Government benefit or service or filing taxes;

“(ii) provides information about any Federal Government benefit or service; or

“(iii) explains to the public how to comply with a requirement the Federal Government administers or enforces;

“(B) includes (whether in paper or electronic form) a letter, publication, form, notice, or instruction; and

“(C) does not include a regulation.

“(3) Plain writing.—The term ‘plain writing’ means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.

“SEC. 4. RESPONSIBILITIES OF FEDERAL AGENCIES.“(a) Preparation for Implementation of Plain Writing Requirements.—“(1) In general.—Not later than 9 months after the date of enactment of this Act [Oct. 13, 2010], the head of each agency shall—“(A) designate 1 or more senior officials within the agency to oversee the agency implementation of this Act;

“(B) communicate the requirements of this Act to the employees of the agency;

“(C) train employees of the agency in plain writing;

“(D) establish a process for overseeing the ongoing compliance of the agency with the requirements of this Act;

“(E) create and maintain a plain writing section of the agency’s website as required under paragraph (2) that is accessible from the homepage of the agency’s website; and

“(F) designate 1 or more agency points-of-contact to receive and respond to public input on—“(i) agency implementation of this Act; and

“(ii) the agency reports required under section 5.

“(2) Website.—The plain writing section described under paragraph (1)(E) shall—“(A) inform the public of agency compliance with the requirements of this Act; and

“(B) provide a mechanism for the agency to receive and respond to public input on—“(i) agency implementation of this Act; and

“(ii) the agency reports required under section 5.

“(b) Requirement to Use Plain Writing in New Documents.—Beginning not later than 1 year after the date of enactment of this Act, each agency shall use plain writing in every covered document of the agency that the agency issues or substantially revises.

“(c) Guidance.—“(1) In general.—Not later than 6 months after the date of enactment of this Act, the Director of the Office of Management and Budget shall develop and issue guidance on implementing the requirements of this section. The Director may designate a lead agency, and may use interagency working groups to assist in developing and issuing the guidance.

“(2) Interim guidance.—Before the issuance of guidance under paragraph (1), agencies may follow the guidance of—“(A) the writing guidelines developed by the Plain Language Action and Information Network; or

“(B) guidance provided by the head of the agency that is consistent with the guidelines referred to in subparagraph (A).

“SEC. 5. REPORTS TO CONGRESS.“(a) Initial Report.—Not later than 9 months after the date of enactment of this Act [Oct. 13, 2010], the head of each agency shall publish on the plain writing section of the agency’s website a report that describes the agency plan for compliance with the requirements of this Act.

“(b) Annual Compliance Report.—Not later than 18 months after the date of enactment of this Act, and annually thereafter, the head of each agency shall publish on the plain writing section of the agency’s website a report on agency compliance with the requirements of this Act.

“SEC. 6. JUDICIAL REVIEW AND ENFORCEABILITY.“(a) Judicial Review.—There shall be no judicial review of compliance or noncompliance with any provision of this Act.

“(b) Enforceability.—No provision of this Act shall be construed to create any right or benefit, substantive or procedural, enforceable by any administrative or judicial action.

“SEC. 7. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR THIS ACT.“The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010 [2 U.S.C. 931 et seq.], shall be determined by reference to the latest statement titled ‘Budgetary Effects of PAYGO Legislation’ for this Act, submitted for printing in the Congressional Record by the Chairman of the House Budget Committee, provided that such statement has been submitted prior to the vote on passage.”

Support for Youth OrganizationsPub. L. 109–163, div. A, title X, § 1058(a), (b), Jan. 6, 2006, 119 Stat. 3442, provided that:
“(a) Youth Organization Defined.—In this section, the term ‘youth organization’ means—“(1) the Boy Scouts of America;

“(2) the Girl Scouts of the United States of America;

“(3) the Boys Clubs of America;

“(4) the Girls Clubs of America;

“(5) the Young Men’s Christian Association;

“(6) the Young Women’s Christian Association;

“(7) the Civil Air Patrol;

“(8) the United States Olympic Committee [now United States Olympic and Paralympic Committee];

“(9) the Special Olympics;

“(10) Campfire USA;

“(11) the Young Marines;

“(12) the Naval Sea Cadets Corps;

“(13) 4–H Clubs;

“(14) the Police Athletic League;

“(15) Big Brothers—Big Sisters of America;

“(16) National Guard Challenge Program; and

“(17) any other organization designated by the President as an organization that is primarily intended to—“(A) serve individuals under the age of 21 years;

“(B) provide training in citizenship, leadership, physical fitness, service to community, and teamwork; and

“(C) promote the development of character and ethical and moral values.

“(b) Support for Youth Organizations.—“(1) Continuation of support.—No Federal law (including any rule, regulation, directive, instruction, or order) shall be construed to limit any Federal agency from providing any form of support for a youth organization (including the Boy Scouts of America or any group officially affiliated with the Boy Scouts of America) that would result in that Federal agency providing less support to that youth organization (or any similar organization chartered under the chapter of title 36, United States Code, relating to that youth organization) than was provided during the preceding fiscal year to that youth organization. This paragraph shall be subject to the availability of appropriations.

“(2) Youth organizations that cease to exist.—Paragraph (1) shall not apply to any youth organization that ceases to exist.

“(3) Waivers.—The head of a Federal agency may waive the application of paragraph (1) to a youth organization with respect to each conviction or investigation described under subparagraph (A) or (B) for a period of not more than two fiscal years if—“(A) any senior officer (including any member of the board of directors) of the youth organization is convicted of a criminal offense relating to the official duties of that officer or the youth organization is convicted of a criminal offense; or

“(B) the youth organization is the subject of a criminal investigation relating to fraudulent use or waste of Federal funds.

“(4) Types of support.—Support described in paragraph (1) includes—“(A) authorizing a youth organization to hold meetings, camping events, or other activities on Federal property;

“(B) hosting any official event of a youth organization;

“(C) loaning equipment for the use of a youth organization; and

“(D) providing personnel services and logistical support for a youth organization.”

Pub. L. 109–148, div. A, title VIII, § 8126(b), Dec. 30, 2005, 119 Stat. 2728, which contained provisions substantially similar to those in Pub. L. 109–163, § 1058(a), (b), set out above, was repealed by Pub. L. 109–364, div. A, title X, § 1071(f)(3), Oct. 17, 2006, 120 Stat. 2402.

Minimum Standards for Birth CertificatesPub. L. 108–458, title VII, § 7211(a)–(d), Dec. 17, 2004, 118 Stat. 3825–3827, provided that:
“(a) Definition.—In this section [enacting this note and repealing provisions set out as a note below], the term ‘birth certificate’ means a certificate of birth—“(1) for an individual (regardless of where born)—“(A) who is a citizen or national of the United States at birth; and

“(B) whose birth is registered in the United States; and

“(2) that—“(A) is issued by a Federal, State, or local government agency or authorized custodian of record and produced from birth records maintained by such agency or custodian of record; or

“(B) is an authenticated copy, issued by a Federal, State, or local government agency or authorized custodian of record, of an original certificate of birth issued by such agency or custodian of record.

“(b) Standards for Acceptance by Federal Agencies.—“(1) In general.—Beginning 2 years after the promulgation of minimum standards under paragraph (3), no Federal agency may accept a birth certificate for any official purpose unless the certificate conforms to such standards.

“(2) State certification.—“(A) In general.—Each State shall certify to the Secretary of Health and Human Services that the State is in compliance with the requirements of this section.

“(B) Frequency.—Certifications under subparagraph (A) shall be made at such intervals and in such a manner as the Secretary of Health and Human Services, with the concurrence of the Secretary of Homeland Security and the Commissioner of Social Security, may prescribe by regulation.

“(C) Compliance.—Each State shall ensure that units of local government and other authorized custodians of records in the State comply with this section.

“(D) Audits.—The Secretary of Health and Human Services may conduct periodic audits of each State’s compliance with the requirements of this section.

“(3) Minimum standards.—Not later than 1 year after the date of enactment of this Act [Dec. 17, 2004], the Secretary of Health and Human Services shall by regulation establish minimum standards for birth certificates for use by Federal agencies for official purposes that—“(A) at a minimum, shall require certification of the birth certificate by the State or local government custodian of record that issued the certificate, and shall require the use of safety paper or an alternative, equally secure medium, the seal of the issuing custodian of record, and other features designed to prevent tampering, counterfeiting, or otherwise duplicating the birth certificate for fraudulent purposes;

“(B) shall establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not the applicant;

“(C) shall establish standards for the processing of birth certificate applications to prevent fraud;

“(D) may not require a single design to which birth certificates issued by all States must conform; and

“(E) shall accommodate the differences between the States in the manner and form in which birth records are stored and birth certificates are produced from such records.

“(4) Consultation with government agencies.—In promulgating the standards required under paragraph (3), the Secretary of Health and Human Services shall consult with—“(A) the Secretary of Homeland Security;

“(B) the Commissioner of Social Security;

“(C) State vital statistics offices; and

“(D) other appropriate Federal agencies.

“(5) Extension of effective date.—The Secretary of Health and Human Services may extend the date specified under paragraph (1) for up to 2 years for birth certificates issued by a State if the Secretary determines that the State made reasonable efforts to comply with the date under paragraph (1) but was unable to do so.

“(c) Grants to States.—“(1) Assistance in meeting federal standards.—“(A) In general.—Beginning on the date a final regulation is promulgated under subsection (b)(3), the Secretary of Health and Human Services shall award grants to States to assist them in conforming to the minimum standards for birth certificates set forth in the regulation.

“(B) Allocation of grants.—The Secretary shall award grants to States under this paragraph based on the proportion that the estimated average annual number of birth certificates issued by a State applying for a grant bears to the estimated average annual number of birth certificates issued by all States.

“(C) Minimum allocation.—Notwithstanding subparagraph (B), each State shall receive not less than 0.5 percent of the grant funds made available under this paragraph.

“(2) Assistance in matching birth and death records.—“(A) In general.—The Secretary of Health and Human Services, in coordination with the Commissioner of Social Security and other appropriate Federal agencies, shall award grants to States, under criteria established by the Secretary, to assist States in—“(i) computerizing their birth and death records;

“(ii) developing the capability to match birth and death records within each State and among the States; and

“(iii) noting the fact of death on the birth certificates of deceased persons.

“(B) Allocation of grants.—The Secretary shall award grants to qualifying States under this paragraph based on the proportion that the estimated annual average number of birth and death records created by a State applying for a grant bears to the estimated annual average number of birth and death records originated by all States.

“(C) Minimum allocation.—Notwithstanding subparagraph (B), each State shall receive not less than 0.5 percent of the grant funds made available under this paragraph.

“(d) Authorization of Appropriations.—There are authorized to be appropriated to the Secretary for each of the fiscal years 2005 through 2009 such sums as may be necessary to carry out this section.”

Improvements in Identification-Related DocumentsPub. L. 104–208, div. C, title VI, § 656, Sept. 30, 1996, 110 Stat. 3009–716, as amended by Pub. L. 106–69, title III, § 355, Oct. 9, 1999, 113 Stat. 1027, which related to standards for acceptance of birth certificates by Federal agencies for any official purpose, required the Secretary of Health and Human Services to make grants to States for assistance in meeting Federal standards and in matching birth and death records and for demonstration projects, and required the Secretary to submit a report to the Congress on ways to reduce the fraudulent obtaining and use of birth certificates, was repealed by Pub. L. 108–458, title VII, § 7211(e), Dec. 17, 2004, 118 Stat. 3827.

Modification or Cancellation of Certain License Agreements Granted to Government During World War IIAct Aug. 16, 1950, ch. 716, 64 Stat. 448, provided that: “Notwithstanding any other provision of law, the head of any department or other agency in the executive branch of the Government which subsequent to September 9, 1939, entered into any contract or agreement with the holder of any privately owned patent or any right thereunder whereby such holder granted to the United States, without payment of royalty or with reduction or limitation of royalty, any license under such patent or right, is authorized, upon application of the grantor of such license, to enter into such supplemental contract or agreement for the cancellation of the contract or agreement by which such license was granted as the head of such department or agency shall deem to be warranted by equities existing by reason of changes in circumstances occurring since the granting of such license.”

Executive Documents
Equal Opportunity in Federal EmploymentEstablishment of equal employment opportunity programs by heads of Executive departments and agencies, see Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319 and Ex. Ord. No. 11478, Aug. 8, 1969, 34 F.R. 12985, set out as notes under section 2000e of Title 42, The Public Health and Welfare.

§ 302. Delegation of authority(a) For the purpose of this section, “agency” has the meaning given it by section 5721 of this title.

(b) In addition to the authority to delegate conferred by other law, the head of an agency may delegate to subordinate officials the authority vested in him—(1) by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency; and

(2) by section 3702 of title 44 to authorize the publication of advertisements, notices, or proposals.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 94–183, § 2(1), Dec. 31, 1975, 89 Stat. 1057.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 22a.Aug. 2, 1946, ch. 744, § 12, 60 Stat. 809.

Clause (2) of former section 22a is omitted because of the repeal of R.S. § 3683 (31 U.S.C. 675) by the Act of Sept. 12, 1950, ch. 946, § 301(76), 64 Stat. 843.
The word “agency” is substituted for “department” and defined to conform to the definition of “department” in section 18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.
In subsection (b), the words “In addition to the authority to delegate conferred by other law,” are added for clarity and in recognition of the various reorganization plans which generally have transferred all functions of the departments and agencies to the heads thereof and have authorized them to delegate the functions to subordinates.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1975—Subsec. (b)(2). Pub. L. 94–183 substituted “3702” for “324”.

§ 303. Oaths to witnesses(a) An employee of an Executive department lawfully assigned to investigate frauds on or attempts to defraud the United States, or irregularity or misconduct of an employee or agent of the United States, may administer an oath to a witness attending to testify or depose in the course of the investigation.

(b) An employee of the Department of Defense lawfully assigned to investigative duties may administer oaths to witnesses in connection with an official investigation.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379; Pub. L. 94–213, Feb. 13, 1976, 90 Stat. 179.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 93.R.S. § 183.Mar. 2, 1901, ch. 809, § 3, 31 Stat. 951.Feb. 13, 1911, ch. 43, 36 Stat. 898.

The word “employee” is substituted for “officer or clerk” in view of the definition in section 2105. The words “Executive department” are substituted for “departments” as the definition of “department” applicable to this section is coextensive with the definition of “Executive department” in section 101. So much as related to the Armed Forces is omitted as superseded by section 636 of title 14 and section 936(b) of title 10.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 4, 63 Stat. 579 (formerly 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.

Editorial Notes
Amendments1976—Pub. L. 94–213 designated existing provisions as subsec. (a) and added subsec. (b).

§ 304. Subpenas(a) The head of an Executive department or military department or bureau thereof in which a claim against the United States is pending may apply to a judge or clerk of a court of the United States to issue a subpena for a witness within the jurisdiction of the court to appear at a time and place stated in the subpena before an individual authorized to take depositions to be used in the courts of the United States, to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined on the subject of the claim.

(b) If a witness, after being served with a subpena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpena issued may proceed, on proper process, to enforce obedience to the subpena, or to punish for disobedience, in the same manner as a court of the United States may in case of process of subpena ad testificandum issued by the court.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 379.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 94.R.S. § 184.
(b)5 U.S.C. 96.R.S. § 186.

In subsection (a), the words “Executive department” are substituted for “department” as the definition of “department” applicable to this section is coextensive with the definition of “Executive department” in section 101. The word “thereof” is added to reflect the proper relationship between “department” and “bureau” as reflected in title IV of the Revised Statutes of 1878. The words “in any State, District, or Territory” are omitted as unnecessary. The word “individual” is substituted for “officer” as the definition of “officer” in section 2104 is narrower than the word “officer” in R.S. § 184 which word includes “officers” as defined in section 2104 as well as notaries public who are not “officers” under section 2104, but are “officers” as that word is used in R.S. § 184.
In subsection (a), the words “or military department” are inserted to preserve the application of the source law. 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 law for this section, 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.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 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.

§ 305. Systematic agency review of operations(a) For the purpose of this section, “agency” means an Executive agency, but does not include—(1) a Government controlled corporation;

(2) the Tennessee Valley Authority;

(3) the Virgin Islands Corporation;

(4) the Atomic Energy Commission;

(5) the Central Intelligence Agency;

(6) the Panama Canal Commission; or

(7) the National Security Agency, Department of Defense.

(b) Under regulations prescribed and administered by the President, each agency shall review systematically the operations of each of its activities, functions, or organization units, on a continuing basis.

(c) The purpose of the reviews includes—(1) determining the degree of efficiency and economy in the operation of the agency’s activities, functions, or organization units;

(2) identifying the units that are outstanding in those respects; and

(3) identifying the employees whose personal efforts have caused their units to be outstanding in efficiency and economy of operations.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 380; Pub. L. 96–54, § 2(a)(2), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 97–468, title VI, § 615(b)(1)(A), Jan. 14, 1983, 96 Stat. 2578.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 1085.Oct. 28, 1949, ch. 782, § 205, 63 Stat. 957.
(b), (c)5 U.S.C. 1151.Oct. 28, 1949, ch. 782, § 1001, 63 Stat. 971.

Subsection (a) is based in part on former sections 1081 and 1082, which are carried into section 5102.
In subsection (a)(1), the exception of “a Government controlled corporation” is added to preserve the application of this section to “corporations wholly owned by the United States”. This is necessary as the defined term “Executive agency” includes the defined term “Government corporation” and the latter includes both Government owned and controlled corporations. Thus the exclusion of Government controlled corporations, which are distinct from wholly owned corporations, operates to preserve the application of this section to wholly owned corporations. The exception for the Inland Waterways Corporation in former section 1082(13) is omitted on authority of the Act of July 19, 1963, Pub. L. 88–67, 77 Stat. 81. The exceptions for Production Credit Corporations and Federal Intermediate Credit Banks in former section 1082(18) and (19) are omitted as they are no longer “corporations wholly owned by the United States”. Under the Farm Credit Act of 1956, 70 Stat. 659, the Production Credit Corporations were merged in the Federal Intermediate Credit Banks, and pursuant to that Act the Federal Intermediate Credit Banks have ceased to be corporations wholly owned by the United States.
In subsection (a)(7), the words “Panama Canal Company” are substituted for “Panama Railroad Company” on authority of the Act of Sept. 26, 1950, ch. 1049, § 2(a)(2), 64 Stat. 1038.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1983—Subsec. (a)(3) to (8). Pub. L. 97–468 struck out par. (3), which excluded The Alaska Railroad, and redesignated pars. (4) to (8) as (3) to (7), respectively.
1979—Subsec. (a)(7). Pub. L. 96–70 substituted “Commission” for “Company”.
Subsec. (b). Pub. L. 96–54 substituted “President” for “Director of the Bureau of the Budget”.

Statutory Notes and Related Subsidiaries
Effective Date of 1983 AmendmentAmendment by Pub. L. 97–468 effective on date of transfer of Alaska Railroad to the State [Jan. 5, 1985], pursuant to section 1203 of Title 45, Railroads, see section 615(b) of Pub. L. 97–468.

Effective Date of 1979 AmendmentsAmendment by Pub. L. 96–70 effective Oct. 1, 1979, see section 3304 of Pub. L. 96–70, set out as an Effective Date note under section 3601 of Title 22, Foreign Relations and Intercourse.
Pub. L. 96–54, § 2(b), Aug. 14, 1979, 93 Stat. 385, provided that: “Except as otherwise expressly provided in subsection (a), the amendments made by subsection (a) [amending sections 305, 1308, 2101, 2105, 2106, 2108, 3102, 3132, 3302, 3305, 3315, 3317, 3324, 3326, 3503, 4102, 4109, 4111, 4112, 4701, 5102, 5108, 5311 to 5316, 5333 to 5335, 5347, 5504, 5514, 5516, 5521, 5545, 5550a, 5562, 5581, 5584, 5596, 5702, 5903, 5943, 6104, 6304, 6305, 6323, 6325, 7325, 7327, 7701, 7702, 8331, 8332, 8339, 8347, 8701, 8901, and 8906 of this title], shall take effect July 12, 1979, or the date of the enactment of this Act [Aug. 14, 1979], whichever is earlier.”

Transfer of Functions
Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See also Transfer of Functions notes set out under those sections.

Dissolution of Virgin Islands Corporation
Virgin Islands Corporation established to have succession until June 30, 1969, unless sooner dissolved by Act of Congress, by act June 30, 1949, ch. 285, 63 Stat. 350, as amended (48 U.S.C. 1407 et seq.). Corporation terminated its program June 30, 1965, and dissolved July 1, 1966. Act June 30, 1949, was repealed by Pub. L. 97–357, title III, § 308(e), Oct. 19, 1982, 96 Stat. 1710.

Executive Documents

Delegation of Functions
Functions of President under subsec. (b) of this section delegated to Director of Office of Management and Budget, see Ex. Ord. No. 12152, Aug. 14, 1979, 44 F.R. 48143, set out as a note under section 301 of Title 3, The President.

§ 306. Agency strategic plans(a) Not later than the first Monday in February of any year following the year in which the term of the President commences under section 101 of title 3, the head of each agency shall make available on the public website of the agency a strategic plan and notify the President and Congress of its availability. Such plan shall contain—(1) a comprehensive mission statement covering the major functions and operations of the agency;

(2) general goals and objectives, including outcome-oriented goals, for the major functions and operations of the agency;

(3) a description of how any goals and objectives contribute to the Federal Government priority goals required by section 1120(a) of title 31;

(4) a description of how the goals and objectives are to be achieved, including—(A) a description of the operational processes, skills and technology, and the human, capital, information, and other resources required to achieve those goals and objectives; and

(B) a description of how the agency is working with other agencies to achieve its goals and objectives as well as relevant Federal Government priority goals;

(5) a description of how the goals and objectives incorporate views and suggestions obtained through congressional consultations required under subsection (d);

(6) a description of how the performance goals provided in the plan required by section 1115(a) of title 31, including the agency priority goals required by section 1120(b) of title 31, if applicable, contribute to the general goals and objectives in the strategic plan;

(7) an identification of those key factors external to the agency and beyond its control that could significantly affect the achievement of the general goals and objectives;

(8) a description of the program evaluations used in establishing or revising general goals and objectives, with a schedule for future program evaluations to be conducted, and citations to relevant provisions of the plans required under section 312; and

(9) an assessment of the coverage, quality, methods, effectiveness, and independence of the statistics, evaluation, research, and analysis efforts of the agency, including—(A) a list of the activities and operations of the agency that are currently being evaluated and analyzed;

(B) the extent to which the evaluations, research, and analysis efforts and related activities of the agency support the needs of various divisions within the agency;

(C) the extent to which the evaluation research and analysis efforts and related activities of the agency address an appropriate balance between needs related to organizational learning, ongoing program management, performance management, strategic management, interagency and private sector coordination, internal and external oversight, and accountability;

(D) the extent to which the agency uses methods and combinations of methods that are appropriate to agency divisions and the corresponding research questions being addressed, including an appropriate combination of formative and summative evaluation research and analysis approaches;

(E) the extent to which evaluation and research capacity is present within the agency to include personnel and agency processes for planning and implementing evaluation activities, disseminating best practices and findings, and incorporating employee views and feedback; and

(F) the extent to which the agency has the capacity to assist agency staff and program offices to develop the capacity to use evaluation research and analysis approaches and data in the day-to-day operations.

(b) The strategic plan shall cover a period of not less than 4 years following the fiscal year in which the plan is submitted. As needed, the head of the agency may make adjustments to the strategic plan to reflect significant changes in the environment in which the agency is operating, with appropriate notification of Congress.

(c) The performance plan required by section 1115(b) of title 31 shall be consistent with the agency’s strategic plan. A performance plan may not be submitted for a fiscal year not covered by a current strategic plan under this section.

(d) When developing or making adjustments to a strategic plan, the agency shall consult periodically with the Congress, including majority and minority views from the appropriate authorizing, appropriations, and oversight committees, and shall solicit and consider the views and suggestions of those entities potentially affected by or interested in such a plan. The agency shall consult with the appropriate committees of Congress at least once every 2 years.

(e) The functions and activities of this section shall be considered to be inherently governmental functions. The drafting of strategic plans under this section shall be performed only by Federal employees.

(f) For purposes of this section the term “agency” means an Executive agency defined under section 105, but does not include the Central Intelligence Agency, the Government Accountability Office, the United States Postal Service, and the Postal Regulatory Commission.

(Added Pub. L. 111–352, § 2, Jan. 4, 2011, 124 Stat. 3866; amended Pub. L. 115–435, title I, § 101(c), Jan. 14, 2019, 132 Stat. 5533.)

Editorial Notes
Prior ProvisionsA prior section 306, added Pub. L. 103–62, § 3, Aug. 3, 1993, 107 Stat. 286; amended Pub. L. 106–65, div. A, title IX, § 902, Oct. 5, 1999, 113 Stat. 717; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat. 3241, related to strategic plans, prior to repeal by Pub. L. 111–352, § 2, Jan. 4, 2011, 124 Stat. 3866.

Amendments2019—Subsec. (a)(7). Pub. L. 115–435, § 101(c)(1), substituted semicolon for “; and” at end.
Subsec. (a)(8). Pub. L. 115–435, § 101(c)(2), inserted “, and citations to relevant provisions of the plans required under section 312; and” after “to be conducted” and struck out period at end.
Subsec. (a)(9). Pub. L. 115–435, § 101(c)(3), added par. (9).

Statutory Notes and Related Subsidiaries
Effective Date of 2019 AmendmentPub. L. 115–435, title IV, § 403, Jan. 14, 2019, 132 Stat. 5557, provided that: “Except as otherwise provided, this Act [see Short Title of 2019 Amendment note set out under section 101 of this title], and the amendments made by this Act, shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 14, 2019].”

Construction of 2019 AmendmentPub. L. 115–435, title IV, § 401, Jan. 14, 2019, 132 Stat. 5556, provided that:
“Nothing in this Act [see Short Title of 2019 Amendment note set out under section 101 of this title], or the amendments made by this Act, may be construed—
“(1) to require the disclosure of information or records that are exempt from disclosure under section 552 of title 5, United States Code (commonly known as the ‘Freedom of Information Act’);

“(2) to create or expand an exemption from disclosure under such section;

“(3) to override, limit, or otherwise affect intellectual property rights, including rights under titles 17 and 35, United States Code;

“(4) to affect the authority of a Federal agency regarding the use, disclosure, or licensing of—“(A) confidential business information that could be withheld under section 552(b)(4) of title 5, United States Code; or

“(B) data assets restricted from disclosure under a contract or other binding, written agreement; or

“(5) to affect the independence, responsibilities, or work products of an Inspector General of any agency.”

[For definition of “agency” as used in section 401 of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]

GAO ReportPub. L. 115–435, title I, § 101(d), Jan. 14, 2019, 132 Stat. 5533, provided that:
“Not later than 2 years after the date on which each strategic plan required under section 306(a) of title 5, United States Code, is published, the Comptroller General of the United States shall submit to Congress a report that—
“(1) summarizes agency findings and highlights trends in the assessment conducted pursuant to subsection (a)(9) of section 306 of title 5, United States Code, as added by subsection (c); and

“(2) if appropriate, recommends actions to further improve agency capacity to use evaluation techniques and data to support evaluation efforts.”

[For definitions of “agency” and “evaluation” as used in section 101(d) of Pub. L. 115–435, set out above, see section 101(e)(4) of Pub. L. 115–435, set out as a note under section 311 of this title.]

Biennial OMB ReportPub. L. 115–435, title II, § 202(g)(2), Jan. 14, 2019, 132 Stat. 5544, provided that: “Not later than 1 year after [the] date of the enactment of this Act [Jan. 14, 2019], and biennially thereafter, the Director of the Office of Management and Budget shall electronically publish a report on agency performance and compliance with this Act [see Short Title of 2019 Amendment note set out under section 101 of this title] and the amendments made by this Act.”

[For definition of “agency” as used in section 202(g)(2) of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]

Use of Existing ResourcesPub. L. 115–435, title IV, § 402, Jan. 14, 2019, 132 Stat. 5557, provided that: “To the extent practicable, the head of each agency shall use existing procedures and systems to carry out agency requirements and shall select existing employees for appointments under this Act [see Short Title of 2019 Amendment note set out under section 101 of this title] and the amendments made by this Act.”

[For definition of “agency” as used in section 402 of Pub. L. 115–435, set out above, see section 101(e)(4)(A) of Pub. L. 115–435, set out as a note under section 311 of this title.]

SUBCHAPTER II—FEDERAL EVIDENCE-BUILDING ACTIVITIES
§ 311. Definitions
In this subchapter:(1) Agency.—The term “agency” means an agency referred to under section 901(b) of title 31.

(2) Director.—The term “Director” means the Director of the Office of Management and Budget.

(3) Evaluation.—The term “evaluation” means an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency.

(4) Evidence.—The term “evidence” has the meaning given that term in section 3561 of title 44.

(5) State.—The term “State” means each of the several States, the District of Columbia, each territory or possession of the United States, and each federally recognized governing body of any Indian Tribe, band, nation, pueblo, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(6) Statistical activities; statistical agency or unit; statistical purpose.—The terms “statistical activities”, “statistical agency or unit”, and “statistical purpose” have the meanings given those terms in section 3561 of title 44.

(Added Pub. L. 115–435, title I, § 101(a)(2), Jan. 14, 2019, 132 Stat. 5530.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

Evaluation and Personnel StandardsPub. L. 115–435, title I, § 101(e), Jan. 14, 2019, 132 Stat. 5534, provided that:
“(1) Requirement.—Not later than 1 year after the date of enactment of this Act [Jan. 14, 2019], the Director of the Office of Management and Budget, in consultation with any interagency council relating to evaluation, shall—“(A) issue guidance for program evaluation for agencies consistent with widely accepted standards for evaluation; and

“(B) identify best practices for evaluation that would improve Federal program evaluation.

“(2) Guidance.—Not later than 90 days after the date on which the guidance under paragraph (1) is issued, the head of each agency shall oversee the implementation of such guidance.

“(3) OPM guidance.—Not later than 180 days after the date on which the guidance under paragraph (1) is issued, the Director of the Office of Personnel Management, in consultation with the Director of the Office of Management and Budget, shall—“(A) identify key skills and competencies needed for program evaluation in an agency;

“(B) establish a new occupational series, or update and improve an existing occupational series, for program evaluation within an agency; and

“(C) establish a new career path for program evaluation within an agency.

“(4) Definitions.—In this Act [see Short Title of 2019 Amendment note set out under section 101 of this title]:“(A) Agency.—Except as otherwise provided, the term ‘agency’ has the meaning given the term ‘Executive agency’ under section 105 [probably means section 105 of title 5, United States Code].

“(B) Evaluation.—The term ‘evaluation’ has the meaning given that term in section 311 of title 5, United States Code, as added by subsection (a).”

§ 312. Agency evidence-building plan(a) Requirement.—The head of each agency shall include in the strategic plan required under section 306 a systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency. Such plan shall contain the following:(1) A list of policy-relevant questions for which the agency intends to develop evidence to support policymaking.

(2) A list of data the agency intends to collect, use, or acquire to facilitate the use of evidence in policymaking.

(3) A list of methods and analytical approaches that may be used to develop evidence to support policymaking.

(4) A list of any challenges to developing evidence to support policymaking, including any statutory or other restrictions to accessing relevant data.

(5) A description of the steps the agency will take to accomplish paragraphs (1) and (2).

(6) Any other information as required by guidance issued by the Director.

(b) Evaluation Plan.—The head of each agency shall issue in conjunction with the performance plan required under section 1115(b) of title 31, an evaluation plan describing activities the agency plans to conduct pursuant to subsection (a) of this section during the fiscal year following the year in which the performance plan is submitted. Such plan shall—(1) describe key questions for each significant evaluation study that the agency plans to begin in the next fiscal year;

(2) describe key information collections or acquisitions the agency plans to begin in the next fiscal year; and

(3) any 11 So in original. other information included in guidance issued by the Director under subsection (a)(6).

(c) Consultation.—In developing the plan required under subsection (a), the head of an agency shall consult with stakeholders, including the public, agencies, State and local governments, and representatives of non-governmental researchers.

(Added Pub. L. 115–435, title I, § 101(a)(2), Jan. 14, 2019, 132 Stat. 5530.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

§ 313. Evaluation Officers(a) Establishment.—The head of each agency shall designate a senior employee of the agency as the Evaluation Officer of the agency.

(b) Qualifications.—The Evaluation Officer of an agency shall be appointed or designated without regard to political affiliation and based on demonstrated expertise in evaluation methodology and practices and appropriate expertise to the disciplines of the agency.

(c) Coordination.—The Evaluation Officer of an agency shall, to the extent practicable, coordinate activities with agency officials necessary to carry out the functions required under subsection (d).

(d) Functions.—The Evaluation Officer of each agency shall—(1) continually assess the coverage, quality, methods, consistency, effectiveness, independence, and balance of the portfolio of evaluations, policy research, and ongoing evaluation activities of the agency;

(2) assess agency capacity to support the development and use of evaluation;

(3) establish and implement an agency evaluation policy; and

(4) coordinate, develop, and implement the plans required under section 312.

(Added Pub. L. 115–435, title I, § 101(a)(2), Jan. 14, 2019, 132 Stat. 5531.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

§ 314. Statistical expertise(a) In General.—The head of each agency shall designate the head of any statistical agency or unit within the agency, or in the case of an agency that does not have a statistical agency or unit, any senior agency official with appropriate expertise, as a statistical official to advise on statistical policy, techniques, and procedures. Agency officials engaged in statistical activities may consult with any such statistical official as necessary.

(b) Membership on Interagency Council on Statistical Policy.—Each statistical official designated under subsection (a) shall serve as a member of the Interagency Council on Statistical Policy established under section 3504(e)(8) of title 44.

(Added Pub. L. 115–435, title I, § 101(a)(2), Jan. 14, 2019, 132 Stat. 5531.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

§ 315. Advisory Committee on Data for Evidence Building(a) Establishment.—The Director, or the head of an agency designated by the Director, shall establish an Advisory Committee on Data for Evidence Building (in this section referred to as the “Advisory Committee”) to review, analyze, and make recommendations on how to promote the use of Federal data for evidence building.

(b) Membership.—The members of the Advisory Committee shall consist of the Chief Statistician of the United States, who shall serve as the Chair of the Advisory Committee, and other members appointed by the Director as follows:(1) One member who is an agency Chief Information Officer.

(2) One member who is an agency Chief Privacy Officer.

(3) One member who is an agency Chief Performance Officer.

(4) Three members who are agency Chief Data Officers.

(5) Three members who are agency Evaluation Officers.

(6) Three members who are members of the Interagency Council for Statistical Policy 11 So in original. Probably should be “Interagency Council on Statistical Policy”. established under section 3504(e)(8) of title 44.

(7) At least 10 members who are representatives of State and local governments and nongovernmental stakeholders with expertise in government data policy, privacy, technology, transparency policy, evaluation and research methodologies, and other relevant subjects, of whom—(A) at least one shall have expertise in transparency policy;

(B) at least one shall have expertise in privacy policy;

(C) at least one shall have expertise in statistical data use;

(D) at least one shall have expertise in information management;

(E) at least one shall have expertise in information technology; and

(F) at least one shall be from the research and evaluation community.

(c) Term of Service.—(1) In general.—Each member of the Advisory Committee shall serve for a term of 2 years.

(2) Vacancy.—Any member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed only for the remainder of that term. A vacancy in the Commission shall be filled in the manner in which the original appointment was made.

(d) Compensation.—Members of the Advisory Committee shall serve without compensation.

(e) Duties.—The Advisory Committee shall—(1) assist the Director in carrying out the duties of the Director under part D of subchapter III of chapter 35 of title 44;

(2) evaluate and provide recommendations to the Director on how to facilitate data sharing, enable data linkage, and develop privacy enhancing techniques; and

(3) review the coordination of data sharing or availability for evidence building across all agencies.

(f) Reports.—The Advisory Committee shall submit to the Director and make publicly available an annual report on the activities and findings of the Advisory Committee.

(g) Termination.—The Advisory Committee shall terminate not later than two years after the date of the first meeting.

(Added Pub. L. 115–435, title I, § 101(a)(2), Jan. 14, 2019, 132 Stat. 5531.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 180 days after Jan. 14, 2019, see section 403 of Pub. L. 115–435, set out as an Effective Date of 2019 Amendment note under section 306 of this title.

CHAPTER 5—ADMINISTRATIVE PROCEDURE

SUBCHAPTER I—GENERAL PROVISIONS

Sec.

500.Administrative practice; general provisions.

501.Advertising practice; restrictions.

502.Administrative practice; Reserves and National Guardsmen.

503.Witness fees and allowances.

504.Costs and fees of parties.

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE

551.Definitions.

552.Public information; agency rules, opinions, orders, records, and proceedings.

552a.Records about individuals.11 So in original. Does not conform to section catchline.

552b.Open meetings.

553.Rule making.

554.Adjudications.

555.Ancillary matters.

556.Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

557.Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.

558.Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses.

559.Effect on other laws; effect of subsequent statute.

SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE

561.Purpose.

562.Definitions.

563.Determination of need for negotiated rulemaking committee.

564.Publication of notice; applications for membership on committees.

565.Establishment of committee.

566.Conduct of committee activity.

567.Termination of committee.

568.Services, facilities, and payment of committee member expenses.

569.Encouraging negotiated rulemaking.

570.Judicial review.

570a.Authorization of appropriations.

SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS

571.Definitions.

572.General authority.

573.Neutrals.

574.Confidentiality.

575.Authorization of arbitration.

576.Enforcement of arbitration agreements.

577.Arbitrators.

578.Authority of the arbitrator.

579.Arbitration proceedings.

580.Arbitration awards.

581.Judicial review.

[582.Repealed.]

583.Support services.

584.Authorization of appropriations.

SUBCHAPTER V—ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

591.Purposes.

592.Definitions.

593.Administrative Conference of the United States.

594.Powers and duties of the Conference.

595.Organization of the Conference.

596.Authorization of appropriations.

Editorial Notes
Amendments2004—Pub. L. 108–401, § 2(b)(2), Oct. 30, 2004, 118 Stat. 2255, substituted “Purposes” for “Purpose” in item 591.
1996—Pub. L. 104–320, §§ 4(b)(2), 10(b), 11(b)(2), (d)(2), Oct. 19, 1996, 110 Stat. 3871, 3873, 3874, in item 569 substituted “Encouraging negotiated rulemaking” for “Role of the Administrative Conference of the United States and other entities”, added items 570a and 584, and struck out item 582 “Compilation of information”.
1992—Pub. L. 102–354, § 4, Aug. 26, 1992, 106 Stat. 945, substituted headings of subchapters III, IV, and V and items 561 to 570, 571 to 583, and 591 to 596 for former heading of subchapter III and former items 571 to 576 relating to Administrative Conference of the United States, former heading of subchapter IV and former items 581 to 593 relating to alternative means of dispute resolution in the administrative process, and former heading of subchapter IV and former items 581 to 590 relating to negotiated rulemaking procedure.
1990—Pub. L. 101–648, § 3(b), Nov. 29, 1990, 104 Stat. 4976, added heading of subchapter IV and items 581 to 590 relating to negotiated rulemaking procedure.
Pub. L. 101–552, § 4(c), Nov. 15, 1990, 104 Stat. 2745, added heading of subchapter IV and items 581 to 593 [renumbered 571 to 583] relating to alternative means of dispute resolution.
1986—Pub. L. 99–470, § 2(b), Oct. 14, 1986, 100 Stat. 1198, substituted “Authorization of appropriations” for “Appropriations” in item 576.
1985—Pub. L. 99–80, § 6, Aug. 5, 1985, 99 Stat. 186, revived item 504 and repealed Pub. L. 96–481, title II, § 203(c), Oct. 21, 1980, 94 Stat. 2327, which provided for the repeal, effective Oct. 1, 1984, of item 504.
1980—Pub. L. 96–481, title II, § 203(a)(2), (c), Oct. 21, 1980, 94 Stat. 2327, added item 504 “Costs and fees of parties”, and repealed that item effective Oct. 1, 1984.
1976—Pub. L. 94–409, § 3(b), Sept. 13, 1976, 90 Stat. 1246, added item 552b.
1974—Pub. L. 93–579, § 4, Dec. 31, 1974, 88 Stat. 1905, added item 552a.
1967—Pub. L. 90–83, § 1(1)(B), Sept. 11, 1967, 81 Stat. 195, added item 500.
Pub. L. 90–23, § 2, June 5, 1967, 81 Stat. 56, substituted “Public information; agency rules, opinions, orders, records and proceedings” for “Publication of information, rules, opinions, orders, and public records” in item 552.

SUBCHAPTER I—GENERAL PROVISIONS
§ 500. Administrative practice; general provisions(a) For the purpose of this section—(1) “agency” has the meaning given it by section 551 of this title; and

(2) “State” means a State, a territory or possession of the United States including a Commonwealth, or the District of Columbia.

(b) An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.

(c) An individual who is duly qualified to practice as a certified public accountant in a State may represent a person before the Internal Revenue Service of the Treasury Department on filing with that agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.

(d) This section does not—(1) grant or deny to an individual who is not qualified as provided by subsection (b) or (c) of this section the right to appear for or represent a person before an agency or in an agency proceeding;

(2) authorize or limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency;

(3) authorize an individual who is a former employee of an agency to represent a person before an agency when the representation is prohibited by statute or regulation; or

(4) prevent an agency from requiring a power of attorney as a condition to the settlement of a controversy involving the payment of money.

(e) Subsections (b)–(d) of this section do not apply to practice before the United States Patent and Trademark Office with respect to patent matters that continue to be covered by chapter 3 (sections 31–33) of title 35.

(f) When a participant in a matter before an agency is represented by an individual qualified under subsection (b) or (c) of this section, a notice or other written communication required or permitted to be given the participant in the matter shall be given to the representative in addition to any other service specifically required by statute. When a participant is represented by more than one such qualified representative, service on any one of the representatives is sufficient.

(Added Pub. L. 90–83, § 1(1)(A), Sept. 11, 1967, 81 Stat. 195; amended Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(b)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A–583.)

Historical and Revision Notes

Section of title 5Source (U.S. Code)Source (Revised Statutes at Large)

500(a)5 App.: 1014.Nov. 8, 1965, Pub. L. 89–332, § 3, 79 Stat. 1281.
500(b)–(e)5 App.: 1012.Nov. 8, 1965, Pub. L. 89–332, § 1, 79 Stat. 1281.
500(f)5 App.: 1013.Nov. 8, 1965, Pub. L. 89–332, § 2, 79 Stat. 1281.

The definition of “State” in subsection (a)(2) is supplied for convenience and is based on the words “State, possession, territory, Commonwealth, or District of Columbia” in subsections (a) and (b) of 5 App. U.S.C. 1012.
In subsection (d), the words “This section does not” are substituted for “nothing herein shall be construed”.
In subsection (d)(3), the word “employee” is substituted for “officer or employee” to conform to the definition of “employee” in 5 U.S.C. 2105.

Editorial Notes
Amendments1999—Subsec. (e). Pub. L. 106–113 substituted “United States Patent and Trademark Office” for “Patent Office”.

Statutory Notes and Related Subsidiaries
Effective Date of 1999 AmendmentAmendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents.

§ 501. Advertising practice; restrictions
An individual, firm, or corporation practicing before an agency of the United States may not use the name of a Member of either House of Congress or of an individual in the service of the United States in advertising the business.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 101.Apr. 27, 1916, ch. 89, § 1, 39 Stat. 54.

The words “may not” are substituted for “It shall be unlawful for”. The words “agency of the United States” are substituted for “any department or office of the Government”. The words “an individual in the service of the United States” are substituted for “officer of the Government” in view of the definitions in sections 2104 and 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 502. Administrative practice; Reserves and National Guardsmen
Membership in a reserve component of the armed forces or in the National Guard does not prevent an individual from practicing his civilian profession or occupation before, or in connection with, an agency of the United States.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 30r(c) (2d sentence).Aug. 10, 1956, ch. 1041, § 29(c) (2d sentence), 70A Stat. 632.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 503. Witness fees and allowances(a) For the purpose of this section, “agency” has the meaning given it by section 5721 of this title.

(b) A witness is entitled to the fees and allowances allowed by statute for witnesses in the courts of the United States when—(1) he is subpenaed under section 304(a) of this title; or

(2) he is subpenaed to and appears at a hearing before an agency authorized by law to hold hearings and subpena witnesses to attend the hearings.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 95.R.S. § 185.
 5 U.S.C. 95a.Aug. 2, 1946, ch. 744, § 10, 60 Stat. 809.

Former sections 95 and 95a are combined and restated for clarity and brevity. The words “or expenses in the case of Government officers and employees” are omitted as covered by section 1823 of title 28. The word “agency” is substituted for “department” and defined to conform to the definition of “department” in section 18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 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.

§ 504. Costs and fees of parties(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.

(2) A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section, and the amount sought, including an itemized statement from any attorney, agent, or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the agency was not substantially justified. When the United States appeals the underlying merits of an adversary adjudication, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made under this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.

(3) The adjudicative officer of the agency may reduce the amount to be awarded, or deny an award, to the extent that the party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy. The decision of the adjudicative officer of the agency under this section shall be made a part of the record containing the final decision of the agency and shall include written findings and conclusions and the reason or basis therefor. The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section.

(4) If, in an adversary adjudication arising from an agency action to enforce a party’s compliance with a statutory or regulatory requirement, the demand by the agency is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer shall award to the party the fees and other expenses related to defending against the excessive demand, unless the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in advance.

(b)(1) For the purposes of this section—(A) “fees and other expenses” includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.);

(B) “party” means a party, as defined in section 551(3) of this title, who is (i) an individual whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which had not more than 500 employees at the time the adversary adjudication was initiated; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association or for purposes of subsection (a)(4), a small entity as defined in section 601;

(C) “adversary adjudication” means (i) an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license, (ii) any appeal of a decision made pursuant to section 7103 of title 41 before an agency board of contract appeals as provided in section 7105 of title 41, (iii) any hearing conducted under chapter 38 of title 31, and (iv) the Religious Freedom Restoration Act of 1993;

(D) “adjudicative officer” means the deciding official, without regard to whether the official is designated as an administrative law judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication;

(E) “position of the agency” means, in addition to the position taken by the agency in the adversary adjudication, the action or failure to act by the agency upon which the adversary adjudication is based; except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings; and

(F) “demand” means the express demand of the agency which led to the adversary adjudication, but does not include a recitation by the agency of the maximum statutory penalty (i) in the administrative complaint, or (ii) elsewhere when accompanied by an express demand for a lesser amount.

(2) Except as otherwise provided in paragraph (1), the definitions provided in section 551 of this title apply to this section.

(c)(1) After consultation with the Chairman of the Administrative Conference of the United States, each agency shall by rule establish uniform procedures for the submission and consideration of applications for an award of fees and other expenses. If a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses may be made only pursuant to section 2412(d)(3) of title 28.

(2) If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a), that party may, within 30 days after the determination is made, appeal the determination to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. The court’s determination on any appeal heard under this paragraph shall be based solely on the factual record made before the agency. The court may modify the determination of fees and other expenses only if the court finds that the failure to make an award of fees and other expenses, or the calculation of the amount of the award, was unsupported by substantial evidence.

(d) Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.

(e)(1) Not later than March 31 of the first fiscal year beginning after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, and every fiscal year thereafter, the Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall submit to Congress and make publicly available online a report on the amount of fees and other expenses awarded during the preceding fiscal year under this section.

(2) Each report under paragraph (1) shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid Congress in evaluating the scope and impact of such awards.

(3)(A) Each report under paragraph (1) shall account for all payments of fees and other expenses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to a nondisclosure provision.

(B) The disclosure of fees and other expenses required under subparagraph (A) shall not affect any other information that is subject to a nondisclosure provision in a settlement agreement.

(f) As soon as practicable, and in any event not later than the date on which the first report under subsection (e)(1) is required to be submitted, the Chairman of the Administrative Conference of the United States shall create and maintain online a searchable database containing, with respect to each award of fees and other expenses under this section made on or after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, the following information:(1) The case name and number of the adversary adjudication, if available, hyperlinked to the case, if available.

(2) The name of the agency involved in the adversary adjudication.

(3) A description of the claims in the adversary adjudication.

(4) The name of each party to whom the award was made as such party is identified in the order or other court document making the award.

(5) The amount of the award.

(6) The basis for the finding that the position of the agency concerned was not substantially justified.

(g) The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or a court order.

(h) The head of each agency shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all information requested by the Chairman to comply with the requirements of subsections (e), (f), and (g).

(i) No award may be made under this section for costs, fees, or other expenses which may be awarded under section 7430 of the Internal Revenue Code of 1986.

(Added Pub. L. 96–481, title II, § 203(a)(1), (c), Oct. 21, 1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99–80, §§ 1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99–509, title VI, § 6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–647, title VI, § 6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103–141, § 4(b), Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104–121, title II, § 231, Mar. 29, 1996, 110 Stat. 862; Pub. L. 111–350, § 5(a)(1), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 116–9, title IV, § 4201(a)(1), Mar. 12, 2019, 133 Stat. 762.)

Editorial Notes

References in TextThe Religious Freedom Restoration Act of 1993, referred to in subsec. (b)(1)(C)(iv), is Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to chapter 21B (§ 2000bb et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000bb of Title 42 and Tables.
The date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, referred to in subsecs. (e)(1) and (f), is the date of enactment of Pub. L. 116–9, which was approved Mar. 12, 2019.
Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (i), is classified to section 7430 of Title 26, Internal Revenue Code.

Amendments2019—Subsec. (c)(1). Pub. L. 116–9, § 4201(a)(1)(A), struck out “, United States Code” after “title 28”.
Subsec. (e). Pub. L. 116–9, § 4201(a)(1)(C), added subsec. (e) and struck out former subsec. (e) which read as follows: “The Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall report annually to the Congress on the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this section. The report shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards. Each agency shall provide the Chairman with such information as is necessary for the Chairman to comply with the requirements of this subsection.”
Subsecs. (f) to (i). Pub. L. 116–9, § 4201(a)(1)(B), (C), added subsecs. (f) to (h) and redesignated former subsec. (f) as (i).
2011—Subsec. (b)(1)(C)(ii). Pub. L. 111–350 substituted “section 7103 of title 41” for “section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)” and “section 7105 of title 41” for “section 8 of that Act (41 U.S.C. 607)”.
1996—Subsec. (a)(4). Pub. L. 104–121, § 231(a), added par. (4).
Subsec. (b)(1)(A)(ii). Pub. L. 104–121, § 231(b)(1), substituted “$125” for “$75”.
Subsec. (b)(1)(B). Pub. L. 104–121, § 231(b)(2), inserted before semicolon at end “or for purposes of subsection (a)(4), a small entity as defined in section 601”.
Subsec. (b)(1)(F). Pub. L. 104–121, § 231(b)(3)–(5), added subpar. (F).
1993—Subsec. (b)(1)(C). Pub. L. 103–141 added cl. (iv).
1988—Subsec. (f). Pub. L. 100–647 added subsec. (f).
1986—Subsec. (b)(1)(B). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
Subsec. (b)(1)(C)(iii). Pub. L. 99–509 added cl. (iii).
1985—Subsec. (a)(1). Pub. L. 99–80, § 1(a)(1), (2), struck out “as a party to the proceeding” after “the position of the agency”, and inserted “Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.”
Subsec. (a)(2). Pub. L. 99–80, § 1(b), inserted “When the United States appeals the underlying merits of an adversary adjudication, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made under this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.”
Subsec. (a)(3). Pub. L. 99–80, § 1(a)(3), inserted “The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section.”
Subsec. (b)(1)(B). Pub. L. 99–80, § 1(c)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “ ‘party’ means a party, as defined in section 551(3) of this title, which is an individual, partnership, corporation, association, or public or private organization other than an agency, but excludes (i) any individual whose net worth exceeded $1,000,000 at the time the adversary adjudication was initiated, and any sole owner of an unincorporated business, or any partnership, corporation, association, or organization whose net worth exceeded $5,000,000 at the time the adversary adjudication was initiated, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association, and (ii) any sole owner of an unincorporated business, or any partnership, corporation, association, or organization, having more than 500 employees at the time the adversary adjudication was initiated;”.
Subsec. (b)(1)(C). Pub. L. 99–80, § 1(c)(2), designated existing provisions of subpar. (C) as cl. (i) thereof by inserting “(i)” before “an adjudication under”, added cl. (ii), and struck out “and” after the semicolon at the end.
Subsec. (b)(1)(D), (E). Pub. L. 99–80, § 1(c)(3), substituted “; and” for the period at end of subpar. (D), and added subpar. (E).
Subsec. (c)(2). Pub. L. 99–80, § 1(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “A party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. If the court denies the petition for leave to appeal, no appeal may be taken from the denial. If the court grants the petition, it may modify the determination only if it finds that the failure to make an award, or the calculation of the amount of the award, was an abuse of discretion.”
Subsec. (d). Pub. L. 99–80, § 1(e), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows:
“(1) Fees and other expenses awarded under this section may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made pursuant to section 2414 of title 28, United States Code.
“(2) There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses awarded under this section in such fiscal years.”
1980—Pub. L. 96–481, § 203(c), which provided for the repeal of this section effective Oct. 1, 1984, was itself repealed and this section was revived by section 6 of Pub. L. 99–80, set out as a note below.

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentPub. L. 104–121, title II, § 233, Mar. 29, 1996, 110 Stat. 864, provided that: “The amendments made by sections 331 and 332 [probably means sections 231 and 232, amending this section and section 2412 of Title 28, Judiciary and Judicial Procedure] shall apply to civil actions and adversary adjudications commenced on or after the date of the enactment of this subtitle [Mar. 29, 1996].”

Effective Date of 1988 AmendmentAmendment by Pub. L. 100–647 applicable to proceedings commencing after Nov. 10, 1988, see section 6239(d) of Pub. L. 100–647, set out as a note under section 7430 of Title 26, Internal Revenue Code.

Effective Date of 1986 AmendmentAmendment by Pub. L. 99–509 effective Oct. 21, 1986, and applicable to any claim or statement made, presented or submitted on or after such date, see section 6104 of Pub. L. 99–509, set out as an Effective Date note under section 3801 of Title 31, Money and Finance.

Effective Date of 1985 AmendmentPub. L. 99–80, § 7, Aug. 5, 1985, 99 Stat. 186, provided that:
“(a) In General.—Except as otherwise provided in this section, the amendments made by this Act [reviving and amending this section and section 2412(d) of Title 28, Judiciary and Judicial Procedure, and amending and repealing provisions set out as notes under those sections] shall apply to cases pending on or commenced on or after the date of the enactment of this Act [Aug. 5, 1985].

“(b) Applicability of Amendments to Certain Prior Cases.—The amendments made by this Act shall apply to any case commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act [Aug. 5, 1985], except that in any such case, the 30-day period referred to in section 504(a)(2) of title 5, United States Code, or section 2412(d)(1)(B) of title 28, United States Code, as the case may be, shall be deemed to commence on the date of the enactment of this Act.

“(c) Applicability of Amendments to Prior Board of Contracts Appeals Cases.—Section 504(b)(1)(C)(ii) of title 5, United States Code, as added by section 1(c)(2) of this Act, and section 2412(d)(2)(E) of title 28, United States Code, as added by section 2(c)(2) of this Act, shall apply to any adversary adjudication pending on or commenced on or after October 1, 1981, in which applications for fees and other expenses were timely filed and were dismissed for lack of jurisdiction.”

Effective DatePub. L. 96–481, title II, § 208, Oct. 21, 1980, 94 Stat. 2330, as amended by Pub. L. 99–80, § 5, Aug. 5, 1985, 99 Stat. 186, provided that: “This title and the amendments made by this title [see Short Title note below] shall take effect of [on] October 1, 1981, and shall apply to any adversary adjudication, as defined in section 504(b)(1)(C) of title 5, United States Code, and any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after, such date. Awards may be made for fees and other expenses incurred before October 1, 1981, in any such adversary adjudication or civil action.”

Pub. L. 96–481, title II, § 203(c), Oct. 21, 1980, 94 Stat. 2327, which provided that effective Oct. 1, 1984, this section is repealed, except that the provisions of this section shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was itself repealed by Pub. L. 99–80, § 6(b)(1), Aug. 5, 1985, 99 Stat. 186.

Short TitlePub. L. 96–481, title II, § 201, Oct. 21, 1980, 94 Stat. 2325, provided that: “This title [enacting this section, amending section 634 of Title 15, Commerce and Trade, section 2412 of Title 28, Judiciary and Judicial Procedure, Rule 37 of the Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under this section and section 2412 of Title 28] may be cited as the ‘Equal Access to Justice Act’.”

Termination of Reporting RequirementsFor termination, effective May 15, 2000, of provisions in subsec. (e) of this section relating to annual report to Congress on the amount of fees and other expenses, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 153 of House Document No. 103–7.

Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title.

Prohibition on Use of Energy and Water Development Appropriations To Pay Intervening Parties in Regulatory or Adjudicatory ProceedingsPub. L. 102–377, title V, § 502, Oct. 2, 1992, 106 Stat. 1342, provided that: “None of the funds in this Act or subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts.”

Revival of Previously Repealed ProvisionsPub. L. 99–80, § 6, Aug. 5, 1985, 99 Stat. 186, provided that:
“(a) Revival of Certain Expired Provisions.—Section 504 of title 5, United States Code, and the item relating to that section in the table of sections of chapter 5 of title 5, United States Code, and subsection (d) of section 2412 of title 28, United States Code, shall be effective on or after the date of the enactment of this Act [Aug. 5, 1985] as if they had not been repealed by sections 203(c) and 204(c) of the Equal Access to Justice Act [Pub. L. 96–481].

“(b) Repeals.—“(1) Section 203(c) of the Equal Access to Justice Act [which repealed this section] is hereby repealed.

“(2) Section 204(c) of the Equal Access to Justice Act [which repealed section 2412(d) of title 28] is hereby repealed.”

Congressional Findings and PurposesPub. L. 96–481, title II, § 202, Oct. 21, 1980, 94 Stat. 2325, provided that:
“(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.

“(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.

“(c) It is the purpose of this title [see Short Title note above]—“(1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and

“(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the ‘American rule’ respecting the award of attorney fees.”

Limitation on PaymentsPub. L. 96–481, title II, § 207, Oct. 21, 1980, 94 Stat. 2330, which provided that the payment of judgments, fees and other expenses in the same manner as the payment of final judgments as provided in this Act [probably should be “this title”, see Short Title note above] would be effective only to the extent and in such amounts as are provided in advance in appropriation Acts, was repealed by Pub. L. 99–80, § 4, Aug. 5, 1985, 99 Stat. 186.

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE

Statutory Notes and Related Subsidiaries
Short TitleThe provisions of this subchapter and chapter 7 of this title were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the “Administrative Procedure Act”. That Act was repealed as part of the general revision of this title by Pub. L. 89–554 and its provisions incorporated into this subchapter and chapter 7 hereof.

§ 551. Definitions
For the purpose of this subchapter—(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia;

or except as to the requirements of section 552 of this title—
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; 11 See References in Text note below.

(2) “person” includes an individual, partnership, corporation, association, or public or private organization other than an agency;

(3) “party” includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes;

(4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;

(5) “rule making” means agency process for formulating, amending, or repealing a rule;

(6) “order” means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;

(7) “adjudication” means agency process for the formulation of an order;

(8) “license” includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;

(9) “licensing” includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;

(10) “sanction” includes the whole or a part of an agency—(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;

(B) withholding of relief;

(C) imposition of penalty or fine;

(D) destruction, taking, seizure, or withholding of property;

(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;

(F) requirement, revocation, or suspension of a license; or

(G) taking other compulsory or restrictive action;

(11) “relief” includes the whole or a part of an agency—(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or

(C) taking of other action on the application or petition of, and beneficial to, a person;

(12) “agency proceeding” means an agency process as defined by paragraphs (5), (7), and (9) of this section;

(13) “agency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act; and

(14) “ex parte communication” means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94–409, § 4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103–272, § 5(a), July 5, 1994, 108 Stat. 1373; Pub. L. 111–350, § 5(a)(2), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(1)5 U.S.C. 1001(a).June 11, 1946, ch. 324, § 2(a), 60 Stat. 237.
  Aug. 8, 1946, ch. 870, § 302, 60 Stat. 918.
  Aug. 10, 1946, ch. 951, § 601, 60 Stat. 993.
  Mar. 31, 1947, ch. 30, § 6(a), 61 Stat. 37.
  June 30, 1947, ch. 163, § 210, 61 Stat. 201.
  Mar. 30, 1948, ch. 161, § 301, 62 Stat. 99.
(2)–(13)5 U.S.C. 1001 (less (a)).June 11, 1946, ch. 324, § 2 (less (a)), 60 Stat. 237.

In paragraph (1), the sentence “Nothing in this Act shall be construed to repeal delegations of authority as provided by law,” is omitted as surplusage since there is nothing in the Act which could reasonably be so construed.
In paragraph (1)(G), the words “or naval” are omitted as included in “military”.
In paragraph (1)(H), the words “functions which by law expire on the termination of present hostilities, within any fixed period thereafter, or before July 1, 1947” are omitted as executed. Reference to the “Selective Training and Service Act of 1940” is omitted as that Act expired Mar. 31, 1947. Reference to the “Sugar Control Extension Act of 1947” is omitted as that Act expired on Mar. 31, 1948. References to the “Housing and Rent Act of 1947, as amended” and the “Veterans’ Emergency Housing Act of 1946” have been consolidated as they are related. The reference to former section 1641(b)(2) of title 50, appendix, is retained notwithstanding its repeal by § 111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–256, 75 Stat. 538, since § 111(c) of the Act provides that a reference in other Acts to a provision of law repealed by § 111(a) shall be considered to be a reference to the appropriate provisions of Pub. L. 87–256.
In paragraph (2), the words “of any character” are omitted as surplusage.
In paragraph (3), the words “and a person or agency admitted by an agency as a party for limited purposes” are substituted for “but nothing herein shall be construed to prevent an agency from admitting any person or agency as a party for limited purposes”.
In paragraph (9), a comma is supplied between the words “limitation” and “amendment” to correct an editorial error of omission.
In paragraph (10)(C), the words “of any form” are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextSections 1884 and 1891–1902 of title 50, appendix, referred to in par. (1)(H), were a part of the various Housing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to Title 50, War and National Defense, and had been repealed or omitted from the Code as executed prior to the elimination of the Appendix to Title 50. See Elimination of Title 50, Appendix note preceding section 1 of Title 50. Section 1641 of title 50, appendix, referred to in par. (1)(H), was repealed by Pub. L. 87–256, § 111(a)(1), Sept. 21, 1961, 75 Stat. 538. See Historical and Revision Note above.

Codification
Section 551 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2242 of Title 7, Agriculture.

Amendments2011—Par. (1)(H). Pub. L. 111–350 struck out “chapter 2 of title 41;” after “title 12;”.
1994—Par. (1)(H). Pub. L. 103–272 substituted “subchapter II of chapter 471 of title 49; or sections” for “or sections 1622,”.
1976—Par. (14). Pub. L. 94–409 added par. (14).

Statutory Notes and Related Subsidiaries
Effective Date of 1976 AmendmentAmendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

Study and Reports on Administrative SubpoenasPub. L. 106–544, § 7, Dec. 19, 2000, 114 Stat. 2719, provided that:
“(a) Study on Use of Administrative Subpoenas.—Not later than December 31, 2001, the Attorney General, in consultation with the Secretary of the Treasury, shall complete a study on the use of administrative subpoena power by executive branch agencies or entities and shall report the findings to the Committees on the Judiciary of the Senate and the House of Representatives. Such report shall include—“(1) a description of the sources of administrative subpoena power and the scope of such subpoena power within executive branch agencies;

“(2) a description of applicable subpoena enforcement mechanisms;

“(3) a description of any notification provisions and any other provisions relating to safeguarding privacy interests;

“(4) a description of the standards governing the issuance of administrative subpoenas; and

“(5) recommendations from the Attorney General regarding necessary steps to ensure that administrative subpoena power is used and enforced consistently and fairly by executive branch agencies.

“(b) Report on Frequency of Use of Administrative Subpoenas.—“(1) In general.—The Attorney General and the Secretary of the Treasury shall report in January of each year to the Committees on the Judiciary of the Senate and the House of Representatives on the number of administrative subpoenas issued by them under this section and the identity of the agency or component of the Department of Justice or the Department of the Treasury issuing the subpoena and imposing the charges.

“(2) Expiration.—The reporting requirement of this subsection shall terminate in 3 years after the date of the enactment of this section [Dec. 19, 2000].”

Executive Documents

Executive Order No. 13892
Ex. Ord. No. 13892, Oct. 9, 2019, 84 F.R. 55239, which related to civil administrative enforcement and adjudication, was revoked by Ex. Ord. No. 13992, § 2, Jan. 20, 2021, 86 F.R. 7049, set out below.

Executive Order No. 13979
Ex. Ord. No. 13979, Jan. 18, 2021, 86 F.R. 6813, which required senior appointee participation in agency rulemaking, was revoked by Ex. Ord. No. 14018, § 1, Feb. 24, 2021, 86 F.R. 11855.

Ex. Ord. No. 13992. Revocation of Certain Executive Orders Concerning Federal Regulation
Ex. Ord. No. 13992, Jan. 20, 2021, 86 F.R. 7049, 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 that:
Section 1. Policy. It is the policy of my Administration to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID–19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals.
Sec. 2. Revocation of Orders. Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs) [former 5 U.S.C. 601 note], Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda) [former 5 U.S.C. 601 note], Executive Order 13875 of June 14, 2019 (Evaluating and Improving the Utility of Federal Advisory Committees) [former 5 U.S.C. App. note], Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents) [former 5 U.S.C. 601 note], Executive Order 13892 of October 9, 2019 (Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication) [formerly set out above], and Executive Order 13893 of October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO) [former 5 U.S.C. 601 note], are hereby revoked.
Sec. 3. Implementation. The Director of the Office of Management and Budget and the heads of agencies shall promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the Executive Orders identified in section 2 of this order, as appropriate and consistent with applicable law, including the Administrative Procedure Act, 5 U.S.C. 551 et seq. If in any case such rescission cannot be finalized immediately, the Director and the heads of agencies shall promptly take steps to provide all available exemptions authorized by any such orders, rules, regulations, guidelines, or policies, as appropriate and consistent with applicable law. In addition, any personnel positions, committees, task forces, or other entities established pursuant to the Executive Orders identified in section 2 of this order, including the regulatory reform officer positions and regulatory reform task forces established by sections 2 and 3 of Executive Order 13777 [former 5 U.S.C. 601 note], shall be abolished, as appropriate and consistent with applicable law.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.

§ 552. Public information; agency rules, opinions, orders, records, and proceedings(a) Each agency shall make available to the public information as follows:(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.

(2) Each agency, in accordance with published rules, shall make available for public inspection in an electronic format—(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the public;

(D) copies of all records, regardless of form or format—(i) that have been released to any person under paragraph (3); and

(ii)(I) that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or

(II) that have been requested 3 or more times; and

(E) a general index of the records referred to under subparagraph (D);

unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. Each agency shall also maintain and make available for public inspection in an electronic format current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
(i) it has been indexed and either made available or published as provided by this paragraph; or

(ii) the party has actual and timely notice of the terms thereof.

(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.

(B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.

(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.

(D) For purposes of this paragraph, the term “search” means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.

(E) An agency, or part of an agency, that is an element of the intelligence community (as that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))) 11 See References in Text note below. shall not make any record available under this paragraph to—(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or

(ii) a representative of a government entity described in clause (i).

(4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.

(ii) Such agency regulations shall provide that—(I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use;

(II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and

(III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication.

In this clause, the term “a representative of the news media” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.

(iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section—(I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or

(II) for any request described in clause (ii) (II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication.

(v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250.

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court’s review of the matter shall be limited to the record before the agency.

(viii)(I) Except as provided in subclause (II), an agency shall not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) under this subparagraph if the agency has failed to comply with any time limit under paragraph (6).

(II)(aa) If an agency has determined that unusual circumstances apply (as the term is defined in paragraph (6)(B)) and the agency provided a timely written notice to the requester in accordance with paragraph (6)(B), a failure described in subclause (I) is excused for an additional 10 days. If the agency fails to comply with the extended time limit, the agency may not assess any search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees).

(bb) If an agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, an agency may charge search fees (or in the case of a requester described under clause (ii)(II) of this subparagraph, duplication fees) if the agency has provided a timely written notice to the requester in accordance with paragraph (6)(B) and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with paragraph (6)(B)(ii).

(cc) If a court has determined that exceptional circumstances exist (as that term is defined in paragraph (6)(C)), a failure described in subclause (I) shall be excused for the length of time provided by the court order.

(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.

[(D) Repealed. Pub. L. 98–620, title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357.]

(E)(i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—(I) a judicial order, or an enforceable written agreement or consent decree; or

(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.

(F)(i) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.

(ii) The Attorney General shall—(I) notify the Special Counsel of each civil action described under the first sentence of clause (i); and

(II) annually submit a report to Congress on the number of such civil actions in the preceding year.

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken by the Special Counsel under clause (i).

(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

(5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.

(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall—(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of—(I) such determination and the reasons therefor;

(II) the right of such person to seek assistance from the FOIA Public Liaison of the agency; and

(III) in the case of an adverse determination—(aa) the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and

(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and

(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.

The 20-day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section. The 20-day period shall not be tolled by the agency except—
(I) that the agency may make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester under this section; or

(II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency’s receipt of the requester’s response to the agency’s request for information or clarification ends the tolling period.

(B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph.

(ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C).

(iii) As used in this subparagraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests—(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.

(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.

(ii) For purposes of this subparagraph, the term “exceptional circumstances” does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.

(iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests.

(ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing.

(iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—(I) in cases in which the person requesting the records demonstrates a compelling need; and

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure—(I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and

(II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing.

(iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination.

(iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request.

(v) For purposes of this subparagraph, the term “compelling need” means—(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

(vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person’s knowledge and belief.

(F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.

(7) Each agency shall—(A) establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request; and

(B) establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including—(i) the date on which the agency originally received the request; and

(ii) an estimated date on which the agency will complete action on the request.

(8)(A) An agency shall—(i) withhold information under this section only if—(I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or

(II) disclosure is prohibited by law; and

(ii)(I) consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and

(II) take reasonable steps necessary to segregate and release nonexempt information; and

(B) Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under subsection (b)(3).

(b) This section does not apply to matters that are—(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.

(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and—(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings,

the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

(d) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney General of the United States and to the Director of the Office of Government Information Services a report which shall cover the preceding fiscal year and which shall include—(A) the number of determinations made by the agency not to comply with requests for records made to such agency under subsection (a) and the reasons for each such determination;

(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such appeals, and the reason for the action upon each appeal that results in a denial of information; and

(ii) a complete list of all statutes that the agency relies upon to authorize the agency to withhold information under subsection (b)(3), the number of occasions on which each statute was relied upon, a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld;

(C) the number of requests for records pending before the agency as of September 30 of the preceding year, and the median and average number of days that such requests had been pending before the agency as of that date;

(D) the number of requests for records received by the agency and the number of requests which the agency processed;

(E) the median number of days taken by the agency to process different types of requests, based on the date on which the requests were received by the agency;

(F) the average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests;

(G) based on the number of business days that have elapsed since each request was originally received by the agency—(i) the number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days;

(ii) the number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days;

(iii) the number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and

(iv) the number of requests for records to which the agency has responded with a determination within a period greater than 400 days;

(H) the average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;

(I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal;

(J) data on the 10 active requests with the earliest filing dates pending at each agency, including the amount of time that has elapsed since each request was originally received by the agency;

(K) data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency;

(L) the number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days;

(M) the number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations;

(N) the total amount of fees collected by the agency for processing requests;

(O) the number of full-time staff of the agency devoted to processing requests for records under this section, and the total amount expended by the agency for processing such requests;

(P) the number of times the agency denied a request for records under subsection (c); and

(Q) the number of records that were made available for public inspection in an electronic format under subsection (a)(2).

(2) Information in each report submitted under paragraph (1) shall be expressed in terms of each principal component of the agency and for the agency overall.

(3) Each agency shall make each such report available for public inspection in an electronic format. In addition, each agency shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be made available—(A) without charge, license, or registration requirement;

(B) in an aggregated, searchable format; and

(C) in a format that may be downloaded in bulk.

(4) The Attorney General of the United States shall make each report which has been made available by electronic means available at a single electronic access point. The Attorney General of the United States shall notify the Chairman and ranking minority member of the Committee on Oversight and Government Reform of the House of Representatives and the Chairman and ranking minority member of the Committees on Homeland Security and Governmental Affairs and the Judiciary of the Senate, no later than March 1 of the year in which each such report is issued, that such reports are available by electronic means.

(5) The Attorney General of the United States, in consultation with the Director of the Office of Management and Budget, shall develop reporting and performance guidelines in connection with reports required by this subsection by October 1, 1997, and may establish additional requirements for such reports as the Attorney General determines may be useful.

(6)(A) The Attorney General of the United States shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President a report on or before March 1 of each calendar year, which shall include for the prior calendar year—(i) a listing of the number of cases arising under this section;

(ii) a listing of—(I) each subsection, and any exemption, if applicable, involved in each case arising under this section;

(II) the disposition of each case arising under this section; and

(III) the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4); and

(iii) a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.

(B) The Attorney General of the United States shall make—(i) each report submitted under subparagraph (A) available for public inspection in an electronic format; and

(ii) the raw statistical data used in each report submitted under subparagraph (A) available for public inspection in an electronic format, which shall be made available—(I) without charge, license, or registration requirement;

(II) in an aggregated, searchable format; and

(III) in a format that may be downloaded in bulk.

(f) For purposes of this section, the term—(1) “agency” as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency; and

(2) “record” and any other term used in this section in reference to information includes—(A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and

(B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.

(g) The head of each agency shall prepare and make available for public inspection in an electronic format, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including—(1) an index of all major information systems of the agency;

(2) a description of major information and record locator systems maintained by the agency; and

(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section.

(h)(1) There is established the Office of Government Information Services within the National Archives and Records Administration. The head of the Office shall be the Director of the Office of Government Information Services.

(2) The Office of Government Information Services shall—(A) review policies and procedures of administrative agencies under this section;

(B) review compliance with this section by administrative agencies; and

(C) identify procedures and methods for improving compliance under this section.

(3) The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to a dispute.

(4)(A) Not less frequently than annually, the Director of the Office of Government Information Services shall submit to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on the Judiciary of the Senate, and the President—(i) a report on the findings of the information reviewed and identified under paragraph (2);

(ii) a summary of the activities of the Office of Government Information Services under paragraph (3), including—(I) any advisory opinions issued; and

(II) the number of times each agency engaged in dispute resolution with the assistance of the Office of Government Information Services or the FOIA Public Liaison; and

(iii) legislative and regulatory recommendations, if any, to improve the administration of this section.

(B) The Director of the Office of Government Information Services shall make each report submitted under subparagraph (A) available for public inspection in an electronic format.

(C) The Director of the Office of Government Information Services shall not be required to obtain the prior approval, comment, or review of any officer or agency of the United States, including the Department of Justice, the Archivist of the United States, or the Office of Management and Budget before submitting to Congress, or any committee or subcommittee thereof, any reports, recommendations, testimony, or comments, if such submissions include a statement indicating that the views expressed therein are those of the Director and do not necessarily represent the views of the President.

(5) The Director of the Office of Government Information Services may directly submit additional information to Congress and the President as the Director determines to be appropriate.

(6) Not less frequently than annually, the Office of Government Information Services shall conduct a meeting that is open to the public on the review and reports by the Office and shall allow interested persons to appear and present oral or written statements at the meeting.

(i) The Government Accountability Office shall conduct audits of administrative agencies on the implementation of this section and issue reports detailing the results of such audits.

(j)(1) Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).

(2) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency—(A) have agency-wide responsibility for efficient and appropriate compliance with this section;

(B) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section;

(C) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section;

(D) review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing this section;

(E) facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency’s handbook issued under subsection (g), and the agency’s annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply;

(F) offer training to agency staff regarding their responsibilities under this section;

(G) serve as the primary agency liaison with the Office of Government Information Services and the Office of Information Policy; and

(H) designate 1 or more FOIA Public Liaisons.

(3) The Chief FOIA Officer of each agency shall review, not less frequently than annually, all aspects of the administration of this section by the agency to ensure compliance with the requirements of this section, including—(A) agency regulations;

(B) disclosure of records required under paragraphs (2) and (8) of subsection (a);

(C) assessment of fees and determination of eligibility for fee waivers;

(D) the timely processing of requests for information under this section;

(E) the use of exemptions under subsection (b); and

(F) dispute resolution services with the assistance of the Office of Government Information Services or the FOIA Public Liaison.

(k)(1) There is established in the executive branch the Chief FOIA Officers Council (referred to in this subsection as the “Council”).

(2) The Council shall be comprised of the following members:(A) The Deputy Director for Management of the Office of Management and Budget.

(B) The Director of the Office of Information Policy at the Department of Justice.

(C) The Director of the Office of Government Information Services.

(D) The Chief FOIA Officer of each agency.

(E) Any other officer or employee of the United States as designated by the Co-Chairs.

(3) The Director of the Office of Information Policy at the Department of Justice and the Director of the Office of Government Information Services shall be the Co-Chairs of the Council.

(4) The Administrator of General Services shall provide administrative and other support for the Council.

(5)(A) The duties of the Council shall include the following:(i) Develop recommendations for increasing compliance and efficiency under this section.

(ii) Disseminate information about agency experiences, ideas, best practices, and innovative approaches related to this section.

(iii) Identify, develop, and coordinate initiatives to increase transparency and compliance with this section.

(iv) Promote the development and use of common performance measures for agency compliance with this section.

(B) In performing the duties described in subparagraph (A), the Council shall consult on a regular basis with members of the public who make requests under this section.

(6)(A) The Council shall meet regularly and such meetings shall be open to the public unless the Council determines to close the meeting for reasons of national security or to discuss information exempt under subsection (b).

(B) Not less frequently than annually, the Council shall hold a meeting that shall be open to the public and permit interested persons to appear and present oral and written statements to the Council.

(C) Not later than 10 business days before a meeting of the Council, notice of such meeting shall be published in the Federal Register.

(D) Except as provided in subsection (b), the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents that were made available to or prepared for or by the Council shall be made publicly available.

(E) Detailed minutes of each meeting of the Council shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the Council. The minutes shall be redacted as necessary and made publicly available.

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as supervisory officials to whom a requester under this section can raise concerns about the service the requester has received from the FOIA Requester Center, following an initial response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.

(m)(1) The Director of the Office of Management and Budget, in consultation with the Attorney General, shall ensure the operation of a consolidated online request portal that allows a member of the public to submit a request for records under subsection (a) to any agency from a single website. The portal may include any additional tools the Director of the Office of Management and Budget finds will improve the implementation of this section.

(2) This subsection shall not be construed to alter the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. The Director of the Office of Management and Budget shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383; Pub. L. 90–23, § 1, June 5, 1967, 81 Stat. 54; Pub. L. 93–502, §§ 1–3, Nov. 21, 1974, 88 Stat. 1561–1564; Pub. L. 94–409, § 5(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–454, title IX, § 906(a)(10), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98–620, title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99–570, title I, §§ 1802, 1803, Oct. 27, 1986, 100 Stat. 3207–48, 3207–49; Pub. L. 104–231, §§ 3–11, Oct. 2, 1996, 110 Stat. 3049–3054; Pub. L. 107–306, title III, § 312, Nov. 27, 2002, 116 Stat. 2390; Pub. L. 110–175, §§ 3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8–10(a), 12, Dec. 31, 2007, 121 Stat. 2525–2530; Pub. L. 111–83, title V, § 564(b), Oct. 28, 2009, 123 Stat. 2184; Pub. L. 114–185, § 2, June 30, 2016, 130 Stat. 538.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1002.June 11, 1946, ch. 324, § 3, 60 Stat. 238.

In subsection (b)(3), the words “formulated and” are omitted as surplusage. In the last sentence of subsection (b), the words “in any manner” are omitted as surplusage since the prohibition is all inclusive.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ActSection 1 [of Pub. L. 90–23] amends section 552 of title 5, United States Code, to reflect Public Law 89–487.
In subsection (a)(1)(A), the words “employees (and in the case of a uniformed service, the member)” are substituted for “officer” to retain the coverage of Public Law 89–487 and to conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In the last sentence of subsection (a)(2), the words “A final order * * * may be relied on * * * only if” are substituted for “No final order * * * may be relied upon * * * unless”; and the words “a party other than an agency” and “the party” are substituted for “a private party” and “the private party”, respectively, on authority of the definition of “private party” in 5 App. U.S.C. 1002(g).
In subsection (a)(3), the words “the responsible employee, and in the case of a uniformed service, the responsible member” are substituted for “the responsible officers” to retain the coverage of Public Law 89–487 and to conform to the definitions in 5 U.S.C. 2101, 2104, and 2105.
In subsection (a)(4), the words “shall maintain and make available for public inspection a record” are substituted for “shall keep a record * * * and that record shall be available for public inspection”.
In subsection (b)(5) and (7), the words “a party other than an agency” are substituted for “a private party” on authority of the definition of “private party” in 5 App. U.S.C. 1002(g).
In subsection (c), the words “This section does not authorize” and “This section is not authority” are substituted for “Nothing in this section authorizes” and “nor shall this section be authority”, respectively.
5 App. U.S.C. 1002(g), defining “private party” to mean a party other than an agency, is omitted since the words “party other than an agency” are substituted for the words “private party” wherever they appear in revised 5 U.S.C. 552.
5 App. U.S.C. 1002(h), prescribing the effective date, is omitted as unnecessary. That effective date is prescribed by section 4 of this bill.

Editorial Notes

References in TextThe National Security Act of 1947, referred to in subsec. (a)(3)(E), is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§ 401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§ 3001 et seq.) of Title 50. Section 3 of the Act is now classified to section 3003 of Title 50. For complete classification of this Act to the Code, see Tables.
The date of enactment of the OPEN FOIA Act of 2009, referred to in subsec. (b)(3)(B), is the date of enactment of Pub. L. 111–83, which was approved Oct. 28, 2009.

Codification
Section 552 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2243 of Title 7, Agriculture.

Amendments2016—Subsec. (a)(2). Pub. L. 114–185, § 2(1)(A)(i), in introductory provisions, substituted “for public inspection in an electronic format” for “for public inspection and copying”.
Pub. L. 114–185, § 2(1)(A)(iii), in concluding provisions, substituted “public inspection in an electronic format current” for “public inspection and copying current”.
Subsec. (a)(2)(D). Pub. L. 114–185, § 2(1)(A)(ii), added subpar. (D) and struck out former subpar. (D) which read as follows: “copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and”.
Subsec. (a)(4)(A)(viii). Pub. L. 114–185, § 2(1)(B), added cl. (viii) and struck out former cl. (viii) which read as follows: “An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request.”
Subsec. (a)(6)(A)(i). Pub. L. 114–185, § 2(1)(C)(i), substituted “making such request of—” for “making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and” and added subcls. (I) to (III).
Subsec. (a)(6)(B)(ii). Pub. L. 114–185, § 2(1)(C)(ii), substituted “the agency, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.” for “the agency.”
Subsec. (a)(8). Pub. L. 114–185, § 2(1)(D), added par. (8).
Subsec. (b)(5). Pub. L. 114–185, § 2(2), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;”.
Subsec. (e)(1). Pub. L. 114–185, § 2(3)(A)(i), in introductory provisions, inserted “and to the Director of the Office of Government Information Services” after “United States”.
Subsec. (e)(1)(P), (Q). Pub. L. 114–185, § 2(3)(A)(ii)–(iv), added subpars. (P) and (Q).
Subsec. (e)(3). Pub. L. 114–185, § 2(3)(B), added par. (3) and struck out former par. (3) which read as follows: “Each agency shall make each such report available to the public including by computer telecommunications, or if computer telecommunications means have not been established by the agency, by other electronic means. In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.”
Subsec. (e)(4). Pub. L. 114–185, § 2(3)(C), substituted “Oversight and Government Reform” for “Government Reform and Oversight” and “March” for “April” and inserted “Homeland Security and” before “Governmental Affairs”.
Subsec. (e)(6). Pub. L. 114–185, § 2(3)(D), added par. (6) and struck out former par. (6) which read as follows: “The Attorney General of the United States shall submit an annual report on or before April 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under this section, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.”
Subsec. (g). Pub. L. 114–185, § 2(4), in introductory provisions, substituted “available for public inspection in an electronic format” for “publicly available upon request”.
Subsec. (h)(1). Pub. L. 114–185, § 2(5)(A), inserted at end “The head of the Office shall be the Director of the Office of Government Information Services.”
Subsec. (h)(2)(C). Pub. L. 114–185, § 2(5)(B), added subpar. (C) and struck out former subpar. (C) which read as follows: “recommend policy changes to Congress and the President to improve the administration of this section.”
Subsec. (h)(3). Pub. L. 114–185, § 2(5)(C), added par. (3) and struck out former par. (3) which read as follows: “The Office of Government Information Services shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a non-exclusive alternative to litigation and, at the discretion of the Office, may issue advisory opinions if mediation has not resolved the dispute.”
Subsec. (h)(4) to (6). Pub. L. 114–185, § 2(5)(D), added pars. (4) to (6).
Subsec. (j). Pub. L. 114–185, § 2(6), added subsec. (j) and struck out former subsec. (j) which read as follows: “Each agency shall designate a Chief FOIA Officer who shall be a senior official of such agency (at the Assistant Secretary or equivalent level).”
Subsec. (k). Pub. L. 114–185, § 2(6), added subsec. (k) and struck out former subsec. (k) which related to authority and responsibilities of the Chief FOIA Officer.
Subsec. (m). Pub. L. 114–185, § 2(7), added subsec. (m).
2009—Subsec. (b)(3). Pub. L. 111–83 added par. (3) and struck out former par. (3) which read as follows: “specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;”.
2007—Subsec. (a)(4)(A)(ii). Pub. L. 110–175, § 3, inserted concluding provisions.
Subsec. (a)(4)(A)(viii). Pub. L. 110–175, § 6(b)(1)(A), added cl. (viii).
Subsec. (a)(4)(E). Pub. L. 110–175, § 4(a), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (a)(4)(F). Pub. L. 110–175, § 5, designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(A). Pub. L. 110–175, § 6(a)(1), inserted concluding provisions.
Subsec. (a)(6)(B)(ii). Pub. L. 110–175, § 6(b)(1)(B), inserted after the first sentence “To aid the requester, each agency shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency.”
Subsec. (a)(7). Pub. L. 110–175, § 7(a), added par. (7).
Subsec. (b). Pub. L. 110–175, § 12, in concluding provisions, inserted “, and the exemption under which the deletion is made,” after “The amount of information deleted” in second sentence and after “the amount of the information deleted” in third sentence.
Subsec. (e)(1)(B)(ii). Pub. L. 110–175, § 8(a)(1), inserted “the number of occasions on which each statute was relied upon,” after “subsection (b)(3),”.
Subsec. (e)(1)(C). Pub. L. 110–175, § 8(a)(2), inserted “and average” after “median”.
Subsec. (e)(1)(E). Pub. L. 110–175, § 8(a)(3), inserted before semicolon “, based on the date on which the requests were received by the agency”.
Subsec. (e)(1)(F) to (O). Pub. L. 110–175, § 8(a)(4), (5), added subpars. (F) to (M) and redesignated former subpars. (F) and (G) as (N) and (O), respectively.
Subsec. (e)(2). Pub. L. 110–175, § 8(b)(2), added par. (2). Former par. (2) redesignated (3).
Subsec. (e)(3). Pub. L. 110–175, § 8(b)(1), (c), redesignated par. (2) as (3) and inserted at end “In addition, each agency shall make the raw statistical data used in its reports available electronically to the public upon request.” Former par. (3) redesignated (4).
Subsec. (e)(4) to (6). Pub. L. 110–175, § 8(b)(1), redesignated pars. (3) to (5) as (4) to (6), respectively.
Subsec. (f)(2). Pub. L. 110–175, § 9, added par. (2) and struck out former par. (2) which read as follows: “ ‘record’ and any other term used in this section in reference to information includes any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.”
Subsecs. (h) to (l). Pub. L. 110–175, § 10(a), added subsecs. (h) to (l).
2002—Subsec. (a)(3)(A). Pub. L. 107–306, § 312(1), inserted “and except as provided in subparagraph (E),” after “of this subsection,”.
Subsec. (a)(3)(E). Pub. L. 107–306, § 312(2), added subpar. (E).
1996—Subsec. (a)(2). Pub. L. 104–231, § 4(4), (5), in first sentence struck out “and” at end of subpar. (B) and inserted subpars. (D) and (E).
Pub. L. 104–231, § 4(7), inserted after first sentence “For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.”
Pub. L. 104–231, § 4(1), in second sentence substituted “staff manual, instruction, or copies of records referred to in subparagraph (D)” for “or staff manual or instruction”.
Pub. L. 104–231, § 4(2), inserted before period at end of third sentence “, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made”.
Pub. L. 104–231, § 4(3), inserted after third sentence “If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.”
Pub. L. 104–231, § 4(6), which directed the insertion of the following new sentence after the fifth sentence “Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999.”, was executed by making the insertion after the sixth sentence, to reflect the probable intent of Congress and the addition of a new sentence by section 4(3) of Pub. L. 104–231.
Subsec. (a)(3). Pub. L. 104–231, § 5, inserted subpar. (A) designation after “(3)”, redesignated subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpars. (B) to (D).
Subsec. (a)(4)(B). Pub. L. 104–231, § 6, inserted at end “In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).”
Subsec. (a)(6)(A)(i). Pub. L. 104–231, § 8(b), substituted “20 days” for “ten days”.
Subsec. (a)(6)(B). Pub. L. 104–231, § 7(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days. As used in this subparagraph, ‘unusual circumstances’ means, but only to the extent reasonably necessary to the proper processing of the particular request—
“(i) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
“(ii) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
“(iii) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.”
Subsec. (a)(6)(C). Pub. L. 104–231, § 7(c), designated existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (a)(6)(D). Pub. L. 104–231, § 7(a), added subpar. (D).
Subsec. (a)(6)(E), (F). Pub. L. 104–231, § 8(a), (c), added subpars. (E) and (F).
Subsec. (b). Pub. L. 104–231, § 9, inserted at end of closing provisions “The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made.”
Subsec. (e). Pub. L. 104–231, § 10, amended subsec. (e) generally, revising and restating provisions relating to reports to Congress.
Subsec. (f). Pub. L. 104–231, § 3, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: “For purposes of this section, the term ‘agency’ as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”
Subsec. (g). Pub. L. 104–231, § 11, added subsec. (g).
1986—Subsec. (a)(4)(A). Pub. L. 99–570, § 1803, amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying a uniform schedule of fees applicable to all constituent units of such agency. Such fees shall be limited to reasonable standard charges for document search and duplication and provide for recovery of only the direct costs of such search and duplication. Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.”
Subsec. (b)(7). Pub. L. 99–570, § 1802(a), amended par. (7) generally. Prior to amendment, par. (7) read as follows: “investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;”.
Subsecs. (c) to (f). Pub. L. 99–570, § 1802(b), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.
1984—Subsec. (a)(4)(D). Pub. L. 98–620 repealed subpar. (D) which provided for precedence on the docket and expeditious disposition of district court proceedings authorized by subsec. (a).
1978—Subsec. (a)(4)(F). Pub. L. 95–454 substituted references to the Special Counsel for references to the Civil Service Commission wherever appearing and reference to his findings for reference to its findings.
1976—Subsec. (b)(3). Pub. L. 94–409 inserted provision excluding section 552b of this title from applicability of exemption from disclosure and provision setting forth conditions for statute specifically exempting disclosure.
1974—Subsec. (a)(2). Pub. L. 93–502, § 1(a), substituted provisions relating to maintenance and availability of current indexes, for provisions relating to maintenance and availability of a current index, and inserted provisions relating to publication and distribution of copies of indexes or supplements thereto.
Subsec. (a)(3). Pub. L. 93–502, § 1(b)(1), substituted provisions requiring requests to reasonably describe records for provisions requiring requests, for identifiable records, and struck out provisions setting forth procedures to enjoin agencies from withholding the requested records and ordering their production.
Subsec. (a)(4), (5). Pub. L. 93–502, § 1(b)(2), added par. (4) and redesignated former par. (4) as (5).
Subsec. (a)(6). Pub. L. 93–502, § 1(c), added par. (6).
Subsec. (b)(1). Pub. L. 93–502, § 2(a), designated existing provisions as cl. (A), substituted “authorized under criteria established by an” for “required by”, and added cl. (B).
Subsec. (b)(7). Pub. L. 93–502, § 2(b), substituted provisions relating to exemption for investigatory records compiled for law enforcement purposes, for provisions relating to exemption for investigatory files compiled for law enforcement purposes.
Subsec. (b), foll. par. (9). Pub. L. 93–502, § 2(c), inserted provision relating to availability of segregable portion of records.
Subsecs. (d), (e). Pub. L. 93–502, § 3, added subsecs. (d) and (e).
1967—Subsec. (a). Pub. L. 90–23 substituted introductory statement requiring every agency to make available to the public certain information for former introductory provision excepting from disclosure (1) any function of the United States requiring secrecy in the public interest or (2) any matter relating to internal management of an agency, covered in subsec. (b)(1) and (2) of this section.
Subsec. (a)(1). Pub. L. 90–23 incorporated provisions of: former subsec. (b)(1) in (A), inserting requirement of publication of names of officers as sources of information and provision for public to obtain decisions, and striking out publication requirement for delegations by the agency of final authority; former subsec. (b)(2), introductory part, in (B); former subsec. (b)(2), concluding part, in (C), inserting publication requirement for rules of procedure and descriptions of forms available or the places at which forms may be obtained; former subsec. (b)(3), introductory part, in (D), inserting requirement of general applicability of substantive rules and interpretations, added clause (E), substituted exemption of any person from failure to resort to any matter or from being adversely affected by any matter required to be published in the Federal Register but not so published for former subsec. (b)(3), concluding part, excepting from publication rules addressed to and served upon named persons in accordance with laws and final sentence reading “A person may not be required to resort to organization or procedure not so published” and inserted provision deeming matter, which is reasonably available, as published in the Federal Register when such matter is incorporated by reference in the Federal Register with the approval of its Director.
Subsec. (a)(2). Pub. L. 90–23 incorporated provisions of former subsec. (c), provided for public copying of records, struck out requirement of agency publication of final opinions or orders and authority for secrecy and withholding of opinions and orders required for good cause to be held confidential and not cited as precedents, latter provision now superseded by subsec. (b) of this section, designated existing subsec. (c) as clause (A), including provision for availability of concurring and dissenting opinions, inserted provisions for availability of policy statements and interpretations in clause (B) and staff manuals and instructions in clause (C), deletion of personal identifications from records to protect personal privacy with written justification therefor, and provision for indexing and prohibition of use of records not indexed against any private party without actual and timely notice of the terms thereof.
Subsec. (a)(3). Pub. L. 90–23 incorporated provisions of former subsec. (d) and substituted provisions requiring identifiable agency records to be made available to any person upon request and compliance with rules as to time, place, and procedure for inspection, and payment of fees and provisions for Federal district court proceedings de novo for enforcement by contempt of noncompliance with court’s orders with the burden on the agency and docket precedence for such proceedings for former provisions requiring matters of official record to be made available to persons properly and directly concerned except information held confidential for good cause shown, the latter provision superseded by subsec. (b) of this section.
Subsec. (a)(4). Pub. L. 90–23 added par. (4).
Subsec. (b). Pub. L. 90–23 added subsec. (b) which superseded provisions excepting from disclosure any function of the United States requiring secrecy in the public interest or any matter relating to internal management of an agency, formerly contained in former subsec. (a), final opinions or orders required for good cause to be held confidential and not cited as precedents, formerly contained in subsec. (c), and information held confidential for good cause found, contained in former subsec. (d) of this section.
Subsec. (c). Pub. L. 90–23 added subsec. (c).

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective Date of 2016 AmendmentPub. L. 114–185, § 6, June 30, 2016, 130 Stat. 544, provided that: “This Act [amending this section and section 3102 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under this section and section 101 of this title], and the amendments made by this Act, shall take effect on the date of enactment of this Act [June 30, 2016] and shall apply to any request for records under section 552 of title 5, United States Code, made after the date of enactment of this Act.”

Effective Date of 2007 AmendmentPub. L. 110–175, § 6(a)(2), Dec. 31, 2007, 121 Stat. 2526, provided that: “The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007].”

Pub. L. 110–175, § 6(b)(2), Dec. 31, 2007, 121 Stat. 2526, provided that: “The amendment made by this subsection [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date.”

Pub. L. 110–175, § 7(b), Dec. 31, 2007, 121 Stat. 2527, provided that: “The amendment made by this section [amending this section] shall take effect 1 year after the date of enactment of this Act [Dec. 31, 2007] and apply to requests for information under section 552 of title 5, United States Code, filed on or after that effective date.”

Pub. L. 110–175, § 10(b), Dec. 31, 2007, 121 Stat. 2530, provided that: “The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [Dec. 31, 2007].”

Effective Date of 1996 AmendmentPub. L. 104–231, § 12, Oct. 2, 1996, 110 Stat. 3054, provided that:
“(a) In General.—Except as provided in subsection (b), this Act [amending this section and enacting provisions set out as notes below] shall take effect 180 days after the date of the enactment of this Act [Oct. 2, 1996].

“(b) Provisions Effective on Enactment [sic].—Sections 7 and 8 [amending this section] shall take effect one year after the date of the enactment of this Act [Oct. 2, 1996].”

Effective Date of 1986 AmendmentPub. L. 99–570, title I, § 1804, Oct. 27, 1986, 100 Stat. 3207–50, provided that:
“(a) The amendments made by section 1802 [amending this section] shall be effective on the date of enactment of this Act [Oct. 27, 1986], and shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date.

“(b)(1) The amendments made by section 1803 [amending this section] shall be effective 180 days after the date of enactment of this Act [Oct. 27, 1986], except that regulations to implement such amendments shall be promulgated by such 180th day.

“(2) The amendments made by section 1803 [amending this section] shall apply with respect to any requests for records, whether or not the request was made prior to such date, and shall apply to any civil action pending on such date, except that review charges applicable to records requested for commercial use shall not be applied by an agency to requests made before the effective date specified in paragraph (1) of this subsection or before the agency has finally issued its regulations.”

Effective Date of 1984 AmendmentAmendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure.

Effective Date of 1978 AmendmentAmendment 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.

Effective Date of 1976 AmendmentAmendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

Effective Date of 1974 AmendmentPub. L. 93–502, § 4, Nov. 21, 1974, 88 Stat. 1564, provided that: “The amendments made by this Act [amending this section] shall take effect on the ninetieth day beginning after the date of enactment of this Act [Nov. 21, 1974].”

Effective Date of 1967 AmendmentPub. L. 90–23, § 4, June 5, 1967, 81 Stat. 56, provided that: “This Act [amending this section] shall be effective July 4, 1967, or on the date of enactment [June 5, 1967], whichever is later.”

Short Title of 1996 AmendmentPub. L. 104–231, § 1, Oct. 2, 1996, 110 Stat. 3048, provided that: “This Act [amending this section and enacting provisions set out as notes under this section] may be cited as the ‘Electronic Freedom of Information Act Amendments of 1996’.”

Short Title of 1986 AmendmentPub. L. 99–570, title I, § 1801, Oct. 27, 1986, 100 Stat. 3207–48, provided that: “This subtitle [subtitle N (§§ 1801–1804) of title I of Pub. L. 99–570, amending this section and enacting provisions set out as a note under this section] may be cited as the ‘Freedom of Information Reform Act of 1986’.”

Short TitleThis section is popularly known as the “Freedom of Information Act”.

Review and Issuance of RegulationsPub. L. 114–185, § 3, June 30, 2016, 130 Stat. 544, provided that:
“(a) In General.—Not later than 180 days after the date of enactment of this Act [June 30, 2016], the head of each agency (as defined in section 551 of title 5, United States Code) shall review the regulations of such agency and shall issue regulations on procedures for the disclosure of records under section 552 of title 5, United States Code, in accordance with the amendments made by section 2 [amending this section].

“(b) Requirements.—The regulations of each agency shall include procedures for engaging in dispute resolution through the FOIA Public Liaison and the Office of Government Information Services.”

Treatment of Information in Catch a Serial Offender Program for Certain PurposesPub. L. 116–92, div. A, title V, § 550, Dec. 20, 2019, 133 Stat. 1379, provided that:
“(a) Treatment Under FOIA.—Victim disclosures under the Catch a Serial Offender Program shall be withheld from public disclosure under paragraph (b)(3) of section 552 of title 5, United States Code (commonly referred to as the ‘Freedom of Information Act’).

“(b) Preservation of Restricted Report.—The transmittal or receipt in connection with the Catch a Serial Offender Program of a report on a sexual assault that is treated as a restricted report shall not operate to terminate its treatment or status as a restricted report.”

Protected National Security DocumentsPub. L. 111–83, title V, § 565, Oct. 28, 2009, 123 Stat. 2184, provided that:
“(a) Short Title.—This section may be cited as the ‘Protected National Security Documents Act of 2009’.

“(b) Notwithstanding any other provision of the law to the contrary, no protected document, as defined in subsection (c), shall be subject to disclosure under section 552 of title 5, United States Code[,] or any proceeding under that section.

“(c) Definitions.—In this section:“(1) Protected document.—The term ‘protected document’ means any record—“(A) for which the Secretary of Defense has issued a certification, as described in subsection (d), stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States; and

“(B) that is a photograph that—“(i) was taken during the period beginning on September 11, 2001, through January 22, 2009; and

“(ii) relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.

“(2) Photograph.—The term ‘photograph’ encompasses all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures.

“(d) Certification.—“(1) In general.—For any photograph described under subsection (c)(1), the Secretary of Defense shall issue a certification if the Secretary of Defense determines that disclosure of that photograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.

“(2) Certification expiration.—A certification and a renewal of a certification issued pursuant to subsection (d)(3) shall expire 3 years after the date on which the certification or renewal, [sic] is issued by the Secretary of Defense.

“(3) Certification renewal.—The Secretary of Defense may issue—“(A) a renewal of a certification at any time; and

“(B) more than 1 renewal of a certification.

“(4) Notice to congress.—The Secretary of Defense shall provide Congress a timely notice of the Secretary’s issuance of a certification and of a renewal of a certification.

“(e) Rule of Construction.—Nothing in this section shall be construed to preclude the voluntary disclosure of a protected document.

“(f) Effective Date.—This section shall take effect on the date of enactment of this Act [Oct. 28, 2009] and apply to any protected document.”

FindingsPub. L. 110–175, § 2, Dec. 31, 2007, 121 Stat. 2524, provided that:
“Congress finds that—
“(1) the Freedom of Information Act [probably means Pub. L. 89–487 which amended section 1002 of former Title 5, Executive Departments and Government Officers and Employees, see Historical and Revision notes above] was signed into law on July 4, 1966, because the American people believe that—“(A) our constitutional democracy, our system of self-government, and our commitment to popular sovereignty depends upon the consent of the governed;

“(B) such consent is not meaningful unless it is informed consent; and

“(C) as Justice Black noted in his concurring opinion in Barr v. Matteo (360 U.S. 564 (1959)), ‘The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees.’;

“(2) the American people firmly believe that our system of government must itself be governed by a presumption of openness;

“(3) the Freedom of Information Act establishes a ‘strong presumption in favor of disclosure’ as noted by the United States Supreme Court in United States Department of State v. Ray (502 U.S. 164 (1991)), a presumption that applies to all agencies governed by that Act;

“(4) ‘disclosure, not secrecy, is the dominant objective of the Act,’ as noted by the United States Supreme Court in Department of Air Force v. Rose (425 U.S. 352 (1976));

“(5) in practice, the Freedom of Information Act has not always lived up to the ideals of that Act; and

“(6) Congress should regularly review section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act), in order to determine whether further changes and improvements are necessary to ensure that the Government remains open and accessible to the American people and is always based not upon the ‘need to know’ but upon the fundamental ‘right to know’.”

Limitation on Amounts Obligated or Expended From Claims and Judgment FundPub. L. 110–175, § 4(b), Dec. 31, 2007, 121 Stat. 2525, provided that: “Notwithstanding section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from fees assessed under section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered.”

Nondisclosure of Certain Products of Commercial Satellite OperationsPub. L. 108–375, div. A, title IX, § 914, Oct. 28, 2004, 118 Stat. 2029, provided that:
“(a) Mandatory Disclosure Requirements Inapplicable.—The requirements to make information available under section 552 of title 5, United States Code, shall not apply to land remote sensing information.

“(b) Land Remote Sensing Information Defined.—In this section, the term ‘land remote sensing information’—“(1) means any data that—“(A) are collected by land remote sensing; and

“(B) are prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license issued pursuant to the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5601 et seq.) [now 51 U.S.C. 60101 et seq.]; and

“(2) includes any imagery and other product that is derived from such data and which is prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license described in paragraph (1)(B).

“(c) State or Local Government Disclosures.—Land remote sensing information provided by the head of a department or agency of the United States to a State, local, or tribal government may not be made available to the general public under any State, local, or tribal law relating to the disclosure of information or records.

“(d) Safeguarding Information.—The head of each department or agency of the United States having land remote sensing information within that department or agency or providing such information to a State, local, or tribal government shall take such actions, commensurate with the sensitivity of that information, as are necessary to protect that information from disclosure other than in accordance with this section and other applicable law.

“(e) Additional Definition.—In this section, the term ‘land remote sensing’ has the meaning given such term in section 3 of the Land Remote Sensing Policy Act of 1992 ([former] 15 U.S.C. 5602) [now 51 U.S.C. 60101].

“(f) Disclosure to Congress.—Nothing in this section shall be construed to authorize the withholding of information from the appropriate committees of Congress.”

Disclosure of Arson, Explosive, or Firearm RecordsPub. L. 108–7, div. J, title VI, § 644, Feb. 20, 2003, 117 Stat. 473, provided that: “No funds appropriated under this Act or any other Act with respect to any fiscal year shall be available to take any action based upon any provision of 5 U.S.C. 552 with respect to records collected or maintained pursuant to 18 U.S.C. 846(b), 923(g)(3) or 923(g)(7), or provided by Federal, State, local, or foreign law enforcement agencies in connection with arson or explosives incidents or the tracing of a firearm, except that such records may continue to be disclosed to the extent and in the manner that records so collected, maintained, or obtained have been disclosed under 5 U.S.C. 552 prior to the date of the enactment of this Act [Feb. 20, 2003].”

Disclosure of Information on Japanese Imperial GovernmentPub. L. 106–567, title VIII, Dec. 27, 2000, 114 Stat. 2864, as amended by Pub. L. 108–199, div. H, § 163, Jan. 23, 2004, 118 Stat. 452; Pub. L. 109–5, § 1, Mar. 25, 2005, 119 Stat. 19, provided that:
“SEC. 801. SHORT TITLE.“This title may be cited as the ‘Japanese Imperial Government Disclosure Act of 2000’.

“SEC. 802. DESIGNATION.“(a) Definitions.—In this section:“(1) Agency.—The term ‘agency’ has the meaning given such term under section 551 of title 5, United States Code.

“(2) Interagency group.—The term ‘Interagency Group’ means the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group established under subsection (b).

“(3) Japanese imperial government records.—The term ‘Japanese Imperial Government records’ means classified records or portions of records that pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the experimentation on, and persecution of, any person because of race, religion, national origin, or political opinion, during the period beginning September 18, 1931, and ending on December 31, 1948, under the direction of, or in association with—“(A) the Japanese Imperial Government;

“(B) any government in any area occupied by the military forces of the Japanese Imperial Government;

“(C) any government established with the assistance or cooperation of the Japanese Imperial Government; or

“(D) any government which was an ally of the Japanese Imperial Government.

“(4) Record.—The term ‘record’ means a Japanese Imperial Government record.

“(b) Establishment of Interagency Group.—“(1) In general.—Not later than 60 days after the date of the enactment of this Act [Dec. 27, 2000], the President shall designate the Working Group established under the Nazi War Crimes Disclosure Act (Public Law 105–246; 5 U.S.C. 552 note) to also carry out the purposes of this title with respect to Japanese Imperial Government records, and that Working Group shall remain in existence for 6 years after the date on which this title takes effect. Such Working Group is redesignated as the ‘Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group’.

“(2) Membership.—
[Amended Pub. L. 105–246, set out as a note below.]

“(c) Functions.—Not later than 1 year after the date of the enactment of this Act [Dec. 27, 2000], the Interagency Group shall, to the greatest extent possible consistent with section 803—“(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Japanese Imperial Government records of the United States;

“(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and

“(3) submit a report to Congress, including the Committee on Government Reform [now Committee on Oversight and Reform] and the Permanent Select Committee on Intelligence of the House of Representatives, and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.

“(d) Funding.—There is authorized to be appropriated such sums as may be necessary to carry out the provisions of this title.

“SEC. 803. REQUIREMENT OF DISCLOSURE OF RECORDS.“(a) Release of Records.—Subject to subsections (b), (c), and (d), the Japanese Imperial Government Records Interagency Working Group shall release in their entirety Japanese Imperial Government records.

“(b) Exemptions.—An agency head may exempt from release under subsection (a) specific information, that would—“(1) constitute an unwarranted invasion of personal privacy;

“(2) reveal the identity of a confidential human source, or reveal information about an intelligence source or method when the unauthorized disclosure of that source or method would damage the national security interests of the United States;

“(3) reveal information that would assist in the development or use of weapons of mass destruction;

“(4) reveal information that would impair United States cryptologic systems or activities;

“(5) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;

“(6) reveal United States military war plans that remain in effect;

“(7) reveal information that would impair relations between the United States and a foreign government, or undermine ongoing diplomatic activities of the United States;

“(8) reveal information that would impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services are authorized in the interest of national security;

“(9) reveal information that would impair current national security emergency preparedness plans; or

“(10) violate a treaty or other international agreement.

“(c) Applications of Exemptions.—“(1) In general.—In applying the exemptions provided in paragraphs (2) through (10) of subsection (b), there shall be a presumption that the public interest will be served by disclosure and release of the records of the Japanese Imperial Government. The exemption may be asserted only when the head of the agency that maintains the records determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who makes such a determination shall promptly report it to the committees of Congress with appropriate jurisdiction, including the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on Government Reform [now Committee on Oversight and Reform] and the Permanent Select Committee on Intelligence of the House of Representatives.

“(2) Application of title 5.—A determination by an agency head to apply an exemption provided in paragraphs (2) through (9) of subsection (b) shall be subject to the same standard of review that applies in the case of records withheld under section 552(b)(1) of title 5, United States Code.

“(d) Records Related to Investigations or Prosecutions.—This section shall not apply to records—“(1) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or

“(2) solely in the possession, custody, or control of the Office of Special Investigations.

“SEC. 804. EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.“For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any person who was persecuted in the manner described in section 802(a)(3) and who requests a Japanese Imperial Government record shall be deemed to have a compelling need for such record.

“SEC. 805. EFFECTIVE DATE.“The provisions of this title shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 27, 2000].”

Nazi War Crimes DisclosurePub. L. 105–246, Oct. 8, 1998, 112 Stat. 1859, as amended by Pub. L. 106–567, § 802(b)(2), Dec. 27, 2000, 114 Stat. 2865, provided that:
“SECTION 1. SHORT TITLE.“This Act may be cited as the ‘Nazi War Crimes Disclosure Act’.

“SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY WORKING GROUP.“(a) Definitions.—In this section the term—“(1) ‘agency’ has the meaning given such term under section 551 of title 5, United States Code;

“(2) ‘Interagency Group’ means the Nazi War Criminal Records Interagency Working Group [redesignated Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, see section 802(b)(1) of Pub. L. 106–567, set out above] established under subsection (b);

“(3) ‘Nazi war criminal records’ has the meaning given such term under section 3 of this Act; and

“(4) ‘record’ means a Nazi war criminal record.

“(b) Establishment of Interagency Group.—“(1) In general.—Not later than 60 days after the date of enactment of this Act [Oct. 8, 1998], the President shall establish the Nazi War Criminal Records Interagency Working Group, which shall remain in existence for 3 years after the date the Interagency Group is established.

“(2) Membership.—The President shall appoint to the Interagency Group individuals whom the President determines will most completely and effectively carry out the functions of the Interagency Group within the time limitations provided in this section, including the Director of the Holocaust Museum, the Historian of the Department of State, the Archivist of the United States, the head of any other agency the President considers appropriate, and no more than 4 other persons who shall be members of the public, of whom 3 shall be persons appointed under the provisions of this Act in effect on October 8, 1998..[sic] The head of an agency appointed by the President may designate an appropriate officer to serve on the Interagency Group in lieu of the head of such agency.

“(3) Initial meeting.—Not later than 90 days after the date of enactment of this Act, the Interagency Group shall hold an initial meeting and begin the functions required under this section.

“(c) Functions.—Not later than 1 year after the date of enactment of this Act [Oct. 8, 1998], the Interagency Group shall, to the greatest extent possible consistent with section 3 of this Act—“(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Nazi war criminal records of the United States;

“(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and

“(3) submit a report to Congress, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Reform] of the House of Representatives, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.

“(d) Funding.—There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.

“SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS WHO COMMITTED NAZI WAR CRIMES.“(a) Nazi War Criminal Records.—For purposes of this Act, the term ‘Nazi war criminal records’ means classified records or portions of records that—“(1) pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—“(A) the Nazi government of Germany;

“(B) any government in any area occupied by the military forces of the Nazi government of Germany;

“(C) any government established with the assistance or cooperation of the Nazi government of Germany; or

“(D) any government which was an ally of the Nazi government of Germany; or

“(2) pertain to any transaction as to which the United States Government, in its sole discretion, has grounds to believe—“(A) involved assets taken from persecuted persons during the period beginning on March 23, 1933, and ending on May 8, 1945, by, under the direction of, on behalf of, or under authority granted by the Nazi government of Germany or any nation then allied with that government; and

“(B) such transaction was completed without the assent of the owners of those assets or their heirs or assigns or other legitimate representatives.

“(b) Release of Records.—“(1) In general.—Subject to paragraphs (2), (3), and (4), the Nazi War Criminal Records Interagency Working Group shall release in their entirety Nazi war criminal records that are described in subsection (a).

“(2) Exception for privacy, etc.—An agency head may exempt from release under paragraph (1) specific information, that would—“(A) constitute a clearly unwarranted invasion of personal privacy;

“(B) reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States;

“(C) reveal information that would assist in the development or use of weapons of mass destruction;

“(D) reveal information that would impair United States cryptologic systems or activities;

“(E) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;

“(F) reveal actual United States military war plans that remain in effect;

“(G) reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;

“(H) reveal information that would clearly and demonstrably impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;

“(I) reveal information that would seriously and demonstrably impair current national security emergency preparedness plans; or

“(J) violate a treaty or international agreement.

“(3) Application of exemptions.—“(A) In general.—In applying the exemptions listed in subparagraphs (B) through (J) of paragraph (2), there shall be a presumption that the public interest in the release of Nazi war criminal records will be served by disclosure and release of the records. Assertion of such exemption may only be made when the agency head determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who makes such a determination shall promptly report it to the committees of Congress with appropriate jurisdiction, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight [now Committee on Oversight and Reform] of the House of Representatives. The exemptions set forth in paragraph (2) shall constitute the only authority pursuant to which an agency head may exempt records otherwise subject to release under paragraph (1).

“(B) Application of title 5.—A determination by an agency head to apply an exemption listed in subparagraphs (B) through (I) of paragraph (2) shall be subject to the same standard of review that applies in the case of records withheld under section 552(b)(1) of title 5, United States Code.

“(4) Limitation on application.—This subsection shall not apply to records—“(A) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or

“(B) solely in the possession, custody, or control of that office.

“(c) Inapplicability of National Security Act of 1947 Exemption.—Section 701(a) of the National Security Act of 1947 (50 U.S.C. 431[(a)]) [now 50 U.S.C. 3141(a)] shall not apply to any operational file, or any portion of any operational file, that constitutes a Nazi war criminal record under section 3 of this Act.

“SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.“(a) Expedited Processing.—For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any requester of a Nazi war criminal record shall be deemed to have a compelling need for such record.

“(b) Requester.—For purposes of this section, the term ‘requester’ means any person who was persecuted in the manner described under section 3(a)(1) of this Act who requests a Nazi war criminal record.

“SEC. 5. EFFECTIVE DATE.“This Act and the amendments made by this Act shall take effect on the date that is 90 days after the date of enactment of this Act [Oct. 8, 1998].”

Congressional Statement of Findings and Purpose; Public Access to Information in Electronic FormatPub. L. 104–231, § 2, Oct. 2, 1996, 110 Stat. 3048, provided that:
“(a) Findings.—The Congress finds that—“(1) the purpose of section 552 of title 5, United States Code, popularly known as the Freedom of Information Act, is to require agencies of the Federal Government to make certain agency information available for public inspection and copying and to establish and enable enforcement of the right of any person to obtain access to the records of such agencies, subject to statutory exemptions, for any public or private purpose;

“(2) since the enactment of the Freedom of Information Act in 1966, and the amendments enacted in 1974 and 1986, the Freedom of Information Act has been a valuable means through which any person can learn how the Federal Government operates;

“(3) the Freedom of Information Act has led to the disclosure of waste, fraud, abuse, and wrongdoing in the Federal Government;

“(4) the Freedom of Information Act has led to the identification of unsafe consumer products, harmful drugs, and serious health hazards;

“(5) Government agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and

“(6) Government agencies should use new technology to enhance public access to agency records and information.

“(b) Purposes.—The purposes of this Act [see Short Title of 1996 Amendment note above] are to—“(1) foster democracy by ensuring public access to agency records and information;

“(2) improve public access to agency records and information;

“(3) ensure agency compliance with statutory time limits; and

“(4) maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government.”

Freedom of Information Act Exemption for Certain Open Skies Treaty DataPub. L. 103–236, title V, § 533, Apr. 30, 1994, 108 Stat. 480, provided that:
“(a) In General.—Data with respect to a foreign country collected by sensors during observation flights conducted in connection with the Treaty on Open Skies, including flights conducted prior to entry into force of the treaty, shall be exempt from disclosure under the Freedom of Information Act—“(1) if the country has not disclosed the data to the public; and

“(2) if the country has not, acting through the Open Skies Consultative Commission or any other diplomatic channel, authorized the United States to disclose the data to the public.

“(b) Statutory Construction.—This section constitutes a specific exemption within the meaning of section 552(b)(3) of title 5, United States Code.

“(c) Definitions.—For the purposes of this section—“(1) the term ‘Freedom of Information Act’ means the provisions of section 552 of title 5, United States Code;

“(2) the term ‘Open Skies Consultative Commission’ means the commission established pursuant to Article X of the Treaty on Open Skies; and

“(3) the term ‘Treaty on Open Skies’ means the Treaty on Open Skies, signed at Helsinki on March 24, 1992.”

Executive Documents

Classified National Security Information
For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, § 3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and National Defense.

Executive Order No. 12174
Ex. Ord. No. 12174, Nov. 30, 1979, 44 F.R. 69609, which related to minimizing Federal paperwork, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.

Ex. Ord. No. 12600. Predisclosure Notification Procedures for Confidential Commercial Information
Ex. Ord. No. 12600, June 23, 1987, 52 F.R. 23781, provided:
By the authority vested in me as President by the Constitution and statutes of the United States of America, and in order to provide predisclosure notification procedures under the Freedom of Information Act [5 U.S.C. 552] concerning confidential commercial information, and to make existing agency notification provisions more uniform, it is hereby ordered as follows:
Section 1. The head of each Executive department and agency subject to the Freedom of Information Act [5 U.S.C. 552] shall, to the extent permitted by law, establish procedures to notify submitters of records containing confidential commercial information as described in section 3 of this Order, when those records are requested under the Freedom of Information Act [FOIA], 5 U.S.C. 552, as amended, if after reviewing the request, the responsive records, and any appeal by the requester, the department or agency determines that it may be required to disclose the records. Such notice requires that an agency use good-faith efforts to advise submitters of confidential commercial information of the procedures established under this Order. Further, where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
Sec. 2. For purposes of this Order, the following definitions apply:
(a) “Confidential commercial information” means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.
(b) “Submitter” means any person or entity who provides confidential commercial information to the government. The term “submitter” includes, but is not limited to, corporations, state governments, and foreign governments.
Sec. 3. (a) For confidential commercial information submitted prior to January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, provide a submitter with notice pursuant to section 1 whenever:
(i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or
(ii) the department or agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.
(b) For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the Federal government or a reasonable time thereafter, any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration, after a specified period of time or changes in circumstances, of designations of competitive harm made by submitters. Additionally, such procedures may permit the agency to designate specific classes of information that will be treated by the agency as if the information had been so designated by the submitter. The head of each Executive department or agency shall, to the extent permitted by law, provide the submitter notice in accordance with section 1 of this Order whenever the department or agency determines that it may be required to disclose records:
(i) designated pursuant to this subsection; or
(ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm.
Sec. 4. When notification is made pursuant to section 1, each agency’s procedures shall, to the extent permitted by law, afford the submitter a reasonable period of time in which the submitter or its designee may object to the disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed.
Sec. 5. Each agency shall give careful consideration to all such specified grounds for nondisclosure prior to making an administrative determination of the issue. In all instances when the agency determines to disclose the requested records, its procedures shall provide that the agency give the submitter a written statement briefly explaining why the submitter’s objections are not sustained. Such statement shall, to the extent permitted by law, be provided a reasonable number of days prior to a specified disclosure date.
Sec. 6. Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information, each agency’s procedures shall require that the submitter be promptly notified.
Sec. 7. The designation and notification procedures required by this Order shall be established by regulations, after notice and public comment. If similar procedures or regulations already exist, they should be reviewed for conformity and revised where necessary. Existing procedures or regulations need not be modified if they are in compliance with this Order.
Sec. 8. The notice requirements of this Order need not be followed if:
(a) The agency determines that the information should not be disclosed;
(b) The information has been published or has been officially made available to the public;
(c) Disclosure of the information is required by law (other than 5 U.S.C. 552);
(d) The disclosure is required by an agency rule that (1) was adopted pursuant to notice and public comment, (2) specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act [5 U.S.C. 552], and (3) provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm;
(e) The information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to section 7, when the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or
(f) The designation made by the submitter in accordance with agency regulations promulgated pursuant to section 7 appears obviously frivolous; except that, in such case, the agency must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date.
Sec. 9. Whenever an agency notifies a submitter that it may be required to disclose information pursuant to section 1 of this Order, the agency shall also notify the requester that notice and an opportunity to comment are being provided the submitter. Whenever an agency notifies a submitter of a final decision pursuant to section 5 of this Order, the agency shall also notify the requester.
Sec. 10. This Order is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

Ronald Reagan.

Ex. Ord. No. 13110. Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group
Ex. Ord. No. 13110, Jan. 11, 1999, 64 F.R. 2419, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Nazi War Crimes Disclosure Act (Public Law 105–246) (the “Act”) [5 U.S.C. 552 note], it is hereby ordered as follows:
Section 1. Establishment of Working Group. There is hereby established the Nazi War Criminal Records Interagency Working Group [now Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group] (Working Group). The function of the Group shall be to locate, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration all classified Nazi war criminal records of the United States, subject to certain designated exceptions as provided in the Act. The Working Group shall coordinate with agencies and take such actions as necessary to expedite the release of such records to the public.
Sec. 2. Schedule. The Working Group should complete its work to the greatest extent possible and report to the Congress within 1 year.
Sec. 3. Membership. (a) The Working Group shall be composed of the following members:
(1) Archivist of the United States (who shall serve as Chair of the Working Group);
(2) Secretary of Defense;
(3) Attorney General;
(4) Director of Central Intelligence;
(5) Director of the Federal Bureau of Investigation;
(6) Director of the United States Holocaust Memorial Museum;
(7) Historian of the Department of State; and
(8) Three other persons appointed by the President.
(b) The Senior Director for Records and Access Management of the National Security Council will serve as the liaison to and attend the meetings of the Working Group. Members of the Working Group who are full-time Federal officials may serve on the Working Group through designees.
Sec. 4. Administration. (a) To the extent permitted by law and subject to the availability of appropriations, the National Archives and Records Administration shall provide the Working Group with funding, administrative services, facilities, staff, and other support services necessary for the performance of the functions of the Working Group.
(b) The Working Group shall terminate 3 years from the date of this Executive order.

William J. Clinton.

Ex. Ord. No. 13392. Improving Agency Disclosure of Information
Ex. Ord. No. 13392, Dec. 14, 2005, 70 F.R. 75373, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure appropriate agency disclosure of information, and consistent with the goals of section 552 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy.
(a) The effective functioning of our constitutional democracy depends upon the participation in public life of a citizenry that is well informed. For nearly four decades, the Freedom of Information Act (FOIA) [5 U.S.C. 552] has provided an important means through which the public can obtain information regarding the activities of Federal agencies. Under the FOIA, the public can obtain records from any Federal agency, subject to the exemptions enacted by the Congress to protect information that must be held in confidence for the Government to function effectively or for other purposes.
(b) FOIA requesters are seeking a service from the Federal Government and should be treated as such. Accordingly, in responding to a FOIA request, agencies shall respond courteously and appropriately. Moreover, agencies shall provide FOIA requesters, and the public in general, with citizen-centered ways to learn about the FOIA process, about agency records that are publicly available (e.g., on the agency’s website), and about the status of a person’s FOIA request and appropriate information about the agency’s response.
(c) Agency FOIA operations shall be both results-oriented and produce results. Accordingly, agencies shall process requests under the FOIA in an efficient and appropriate manner and achieve tangible, measurable improvements in FOIA processing. When an agency’s FOIA program does not produce such results, it should be reformed, consistent with available resources appropriated by the Congress and applicable law, to increase efficiency and better reflect the policy goals and objectives of this order.
(d) A citizen-centered and results-oriented approach will improve service and performance, thereby strengthening compliance with the FOIA, and will help avoid disputes and related litigation.
Sec. 2. Agency Chief FOIA Officers.
(a) Designation. The head of each agency shall designate within 30 days of the date of this order a senior official of such agency (at the Assistant Secretary or equivalent level), to serve as the Chief FOIA Officer of that agency. The head of the agency shall promptly notify the Director of the Office of Management and Budget (OMB Director) and the Attorney General of such designation and of any changes thereafter in such designation.
(b) General Duties. The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency:
(i) have agency-wide responsibility for efficient and appropriate compliance with the FOIA;
(ii) monitor FOIA implementation throughout the agency, including through the use of meetings with the public to the extent deemed appropriate by the agency’s Chief FOIA Officer, and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing the FOIA, including the extent to which the agency meets the milestones in the agency’s plan under section 3(b) of this order and training and reporting standards established consistent with applicable law and this order;
(iii) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to carry out the policy set forth in section 1 of this order;
(iv) review and report, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing the FOIA; and
(v) facilitate public understanding of the purposes of the FOIA’s statutory exemptions by including concise descriptions of the exemptions in both the agency’s FOIA handbook issued under section 552(g) of title 5, United States Code, and the agency’s annual FOIA report, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.
(c) FOIA Requester Service Center and FOIA Public Liaisons. In order to ensure appropriate communication with FOIA requesters:
(i) Each agency shall establish one or more FOIA Requester Service Centers (Center), as appropriate, which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person’s FOIA request and appropriate information about the agency’s FOIA response. The Center shall include appropriate staff to receive and respond to inquiries from FOIA requesters;
(ii) The agency Chief FOIA Officer shall designate one or more agency officials, as appropriate, as FOIA Public Liaisons, who may serve in the Center or who may serve in a separate office. FOIA Public Liaisons shall serve as supervisory officials to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the Center, following an initial response from the Center staff. FOIA Public Liaisons shall seek to ensure a service-oriented response to FOIA requests and FOIA-related inquiries. For example, the FOIA Public Liaison shall assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes. FOIA Public Liaisons shall report to the agency Chief FOIA Officer on their activities and shall perform their duties consistent with applicable law and agency regulations;
(iii) In addition to the services to FOIA requesters provided by the Center and FOIA Public Liaisons, the agency Chief FOIA Officer shall also consider what other FOIA-related assistance to the public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA Public Liaisons, the agency shall use, as appropriate, existing agency staff and resources. A Center shall have appropriate staff to receive and respond to inquiries from FOIA requesters;
(v) As determined by the agency Chief FOIA Officer, in consultation with the FOIA Public Liaisons, each agency shall post appropriate information about its Center or Centers on the agency’s website, including contact information for its FOIA Public Liaisons. In the case of an agency without a website, the agency shall publish the information on the Firstgov.gov website or, in the case of any agency with neither a website nor the capability to post on the Firstgov.gov website, in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that the agency has in place a method (or methods), including through the use of the Center, to receive and respond promptly and appropriately to inquiries from FOIA requesters about the status of their requests. The Chief FOIA Officer shall also consider, in consultation with the FOIA Public Liaisons, as appropriate, whether the agency’s implementation of other means (such as tracking numbers for requests, or an agency telephone or Internet hotline) would be appropriate for responding to status inquiries.
Sec. 3. Review, Plan, and Report.
(a) Review. Each agency’s Chief FOIA Officer shall conduct a review of the agency’s FOIA operations to determine whether agency practices are consistent with the policies set forth in section 1 of this order. In conducting this review, the Chief FOIA Officer shall:
(i) evaluate, with reference to numerical and statistical benchmarks where appropriate, the agency’s administration of the FOIA, including the agency’s expenditure of resources on FOIA compliance and the extent to which, if any, requests for records have not been responded to within the statutory time limit (backlog);
(ii) review the processes and practices by which the agency assists and informs the public regarding the FOIA process;
(iii) examine the agency’s:
(A) use of information technology in responding to FOIA requests, including without limitation the tracking of FOIA requests and communication with requesters;
(B) practices with respect to requests for expedited processing; and
(C) implementation of multi-track processing if used by such agency;
(iv) review the agency’s policies and practices relating to the availability of public information through websites and other means, including the use of websites to make available the records described in section 552(a)(2) of title 5, United States Code; and
(v) identify ways to eliminate or reduce its FOIA backlog, consistent with available resources and taking into consideration the volume and complexity of the FOIA requests pending with the agency.
(b) Plan.
(i) Each agency’s Chief FOIA Officer shall develop, in consultation as appropriate with the staff of the agency (including the FOIA Public Liaisons), the Attorney General, and the OMB Director, an agency-specific plan to ensure that the agency’s administration of the FOIA is in accordance with applicable law and the policies set forth in section 1 of this order. The plan, which shall be submitted to the head of the agency for approval, shall address the agency’s implementation of the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the agency will implement to eliminate or reduce the agency’s FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA.
(iii) The plan shall also include activities to increase public awareness of FOIA processing, including as appropriate, expanded use of the agency’s Center and its FOIA Public Liaisons.
(iv) The plan shall also include, taking appropriate account of the resources available to the agency and the mission of the agency, concrete milestones, with specific timetables and outcomes to be achieved, by which the head of the agency, after consultation with the OMB Director, shall measure and evaluate the agency’s success in the implementation of the plan.
(c) Agency Reports to the Attorney General and OMB Director.
(i) The head of each agency shall submit a report, no later than 6 months from the date of this order, to the Attorney General and the OMB Director that summarizes the results of the review under section 3(a) of this order and encloses a copy of the agency’s plan under section 3(b) of this order. The agency shall publish a copy of the agency’s report on the agency’s website or, in the case of an agency without a website, on the Firstgov.gov website, or, in the case of any agency with neither a website nor the capability to publish on the Firstgov.gov website, in the Federal Register.
(ii) The head of each agency shall include in the agency’s annual FOIA reports for fiscal years 2006 and 2007 a report on the agency’s development and implementation of its plan under section 3(b) of this order and on the agency’s performance in meeting the milestones set forth in that plan, consistent with any related guidelines the Attorney General may issue under section 552(e) of title 5, United States Code.
(iii) If the agency does not meet a milestone in its plan, the head of the agency shall:
(A) identify this deficiency in the annual FOIA report to the Attorney General;
(B) explain in the annual report the reasons for the agency’s failure to meet the milestone;
(C) outline in the annual report the steps that the agency has already taken, and will be taking, to address the deficiency; and
(D) report this deficiency to the President’s Management Council.
Sec. 4. Attorney General.
(a) Report. The Attorney General, using the reports submitted by the agencies under subsection 3(c)(i) of this order and the information submitted by agencies in their annual FOIA reports for fiscal year 2005, shall submit to the President, no later than 10 months from the date of this order, a report on agency FOIA implementation. The Attorney General shall consult the OMB Director in the preparation of the report and shall include in the report appropriate recommendations on administrative or other agency actions for continued agency dissemination and release of public information. The Attorney General shall thereafter submit two further annual reports, by June 1, 2007, and June 1, 2008, that provide the President with an update on the agencies’ implementation of the FOIA and of their plans under section 3(b) of this order.
(b) Guidance. The Attorney General shall issue such instructions and guidance to the heads of departments and agencies as may be appropriate to implement sections 3(b) and 3(c) of this order.
Sec. 5. OMB Director. The OMB Director may issue such instructions to the heads of agencies as are necessary to implement this order, other than sections 3(b) and 3(c) of this order.
Sec. 6. Definitions. As used in this order:
(a) the term “agency” has the same meaning as the term “agency” under section 552(f)(1) of title 5, United States Code; and
(b) the term “record” has the same meaning as the term “record” under section 552(f)(2) of title 5, United States Code.
Sec. 7. General Provisions.
(a) The agency reviews under section 3(a) of this order and agency plans under section 3(b) of this order shall be conducted and developed in accordance with applicable law and applicable guidance issued by the President, the Attorney General, and the OMB Director, including the laws and guidance regarding information technology and the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect the functions of the OMB Director relating to budget, legislative, or administrative proposals; and
(iii) is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.

George W. Bush.

Ex. Ord. No. 13642. Making Open and Machine Readable the New Default for Government Information
Ex. Ord. No. 13642, May 9, 2013, 78 F.R. 28111, 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. General Principles. Openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth. As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.
Decades ago, the U.S. Government made both weather data and the Global Positioning System freely available. Since that time, American entrepreneurs and innovators have utilized these resources to create navigation systems, weather newscasts and warning systems, location-based applications, precision farming tools, and much more, improving Americans’ lives in countless ways and leading to economic growth and job creation. In recent years, thousands of Government data resources across fields such as health and medicine, education, energy, public safety, global development, and finance have been posted in machine-readable form for free public use on Data.gov. Entrepreneurs and innovators have continued to develop a vast range of useful new products and businesses using these public information resources, creating good jobs in the process.
To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security.
Sec. 2. Open Data Policy. (a) The Director of the Office of Management and Budget (OMB), in consultation with the Chief Information Officer (CIO), Chief Technology Officer (CTO), and Administrator of the Office of Information and Regulatory Affairs (OIRA), shall issue an Open Data Policy to advance the management of Government information as an asset, consistent with my memorandum of January 21, 2009 (Transparency and Open Government), OMB Memorandum M–10–06 (Open Government Directive), OMB and National Archives and Records Administration Memorandum M–12–18 (Managing Government Records Directive), the Office of Science and Technology Policy Memorandum of February 22, 2013 (Increasing Access to the Results of Federally Funded Scientific Research), and the CIO’s strategy entitled “Digital Government: Building a 21st Century Platform to Better Serve the American People.” The Open Data Policy shall be updated as needed.
(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage of the information lifecycle to identify information that should not be released. These review processes should be overseen by the senior agency official for privacy. It is vital that agencies not release information if doing so would violate any law or policy, or jeopardize privacy, confidentiality, or national security.
Sec. 3. Implementation of the Open Data Policy. To facilitate effective Government-wide implementation of the Open Data Policy, I direct the following:
(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.
(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.
(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President’s Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (Public Law 111–352).
(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.
(e) Independent agencies are requested to adhere to this order.

Barack Obama.

Freedom of Information Act
Memorandum of President of the United States, Jan. 21, 2009, 74 F.R. 4683, provided:
Memorandum for the Heads of Executive Departments and Agencies
A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
I direct the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register. In doing so, the Attorney General should review FOIA reports produced by the agencies under Executive Order 13392 of December 14, 2005. I also direct the Director of the Office of Management and Budget to update guidance to the agencies to increase and improve information dissemination to the public, including through the use of new technologies, and to publish such guidance in the Federal Register.
This memorandum does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

§ 552a. Records maintained on individuals(a) Definitions.—For purposes of this section—(1) the term “agency” means agency as defined in section 552(e) 11 See References in Text note below. of this title;

(2) the term “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence;

(3) the term “maintain” includes maintain, collect, use, or disseminate;

(4) the term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

(5) the term “system of records” means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;

(6) the term “statistical record” means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13;

(7) the term “routine use” means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected;

(8) the term “matching program”—(A) means any computerized comparison of—(i) two or more automated systems of records or a system of records with non-Federal records for the purpose of—(I) establishing or verifying the eligibility of, or continuing compliance with statutory and regulatory requirements by, applicants for, recipients or beneficiaries of, participants in, or providers of services with respect to, cash or in-kind assistance or payments under Federal benefit programs, or

(II) recouping payments or delinquent debts under such Federal benefit programs, or

(ii) two or more automated Federal personnel or payroll systems of records or a system of Federal personnel or payroll records with non-Federal records,

(B) but does not include—(i) matches performed to produce aggregate statistical data without any personal identifiers;

(ii) matches performed to support any research or statistical project, the specific data of which may not be used to make decisions concerning the rights, benefits, or privileges of specific individuals;

(iii) matches performed, by an agency (or component thereof) which performs as its principal function any activity pertaining to the enforcement of criminal laws, subsequent to the initiation of a specific criminal or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence against such person or persons;

(iv) matches of tax information (I) pursuant to section 6103(d) of the Internal Revenue Code of 1986, (II) for purposes of tax administration as defined in section 6103(b)(4) of such Code, (III) for the purpose of intercepting a tax refund due an individual under authority granted by section 404(e), 464, or 1137 of the Social Security Act; or (IV) for the purpose of intercepting a tax refund due an individual under any other tax refund intercept program authorized by statute which has been determined by the Director of the Office of Management and Budget to contain verification, notice, and hearing requirements that are substantially similar to the procedures in section 1137 of the Social Security Act;

(v) matches—(I) using records predominantly relating to Federal personnel, that are performed for routine administrative purposes (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)); or

(II) conducted by an agency using only records from systems of records maintained by that agency;

 if the purpose of the match is not to take any adverse financial, personnel, disciplinary, or other adverse action against Federal personnel;
(vi) matches performed for foreign counterintelligence purposes or to produce background checks for security clearances of Federal personnel or Federal contractor personnel;

(vii) matches performed incident to a levy described in section 6103(k)(8) of the Internal Revenue Code of 1986;

(viii) matches performed pursuant to section 202(x)(3) or 1611(e)(1) of the Social Security Act (42 U.S.C. 402(x)(3), 1382(e)(1));

(ix) matches performed by the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services with respect to potential fraud, waste, and abuse, including matches of a system of records with non-Federal records; or

(x) matches performed pursuant to section 3(d)(4) of the Achieving a Better Life Experience Act of 2014; 1

(9) the term “recipient agency” means any agency, or contractor thereof, receiving records contained in a system of records from a source agency for use in a matching program;

(10) the term “non-Federal agency” means any State or local government, or agency thereof, which receives records contained in a system of records from a source agency for use in a matching program;

(11) the term “source agency” means any agency which discloses records contained in a system of records to be used in a matching program, or any State or local government, or agency thereof, which discloses records to be used in a matching program;

(12) the term “Federal benefit program” means any program administered or funded by the Federal Government, or by any agent or State on behalf of the Federal Government, providing cash or in-kind assistance in the form of payments, grants, loans, or loan guarantees to individuals; and

(13) the term “Federal personnel” means officers and employees of the Government of the United States, members of the uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits).

(b) Conditions of Disclosure.—No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;

(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;

(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;

(10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the Government Accountability Office;

(11) pursuant to the order of a court of competent jurisdiction; or

(12) to a consumer reporting agency in accordance with section 3711(e) of title 31.

(c) Accounting of Certain Disclosures.—Each agency, with respect to each system of records under its control, shall—(1) except for disclosures made under subsections (b)(1) or (b)(2) of this section, keep an accurate accounting of—(A) the date, nature, and purpose of each disclosure of a record to any person or to another agency made under subsection (b) of this section; and

(B) the name and address of the person or agency to whom the disclosure is made;

(2) retain the accounting made under paragraph (1) of this subsection for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;

(3) except for disclosures made under subsection (b)(7) of this section, make the accounting made under paragraph (1) of this subsection available to the individual named in the record at his request; and

(4) inform any person or other agency about any correction or notation of dispute made by the agency in accordance with subsection (d) of this section of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.

(d) Access to Records.—Each agency that maintains a system of records shall—(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s presence;

(2) permit the individual to request amendment of a record pertaining to him and—(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and

(B) promptly, either—(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or

(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;

(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section;

(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and

(5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.

(e) Agency Requirements.—Each agency that maintains a system of records shall—(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President;

(2) collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs;

(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual—(A) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;

(B) the principal purpose or purposes for which the information is intended to be used;

(C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this subsection; and

(D) the effects on him, if any, of not providing all or any part of the requested information;

(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include—(A) the name and location of the system;

(B) the categories of individuals on whom records are maintained in the system;

(C) the categories of records maintained in the system;

(D) each routine use of the records contained in the system, including the categories of users and the purpose of such use;

(E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;

(F) the title and business address of the agency official who is responsible for the system of records;

(G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him;

(H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and

(I) the categories of sources of records in the system;

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;

(6) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes;

(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;

(8) make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record;

(9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance;

(10) establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained;

(11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency; and

(12) if such agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision.

(f) Agency Rules.—In order to carry out the provisions of this section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall—(1) establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him;

(2) define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual;

(3) establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him;

(4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this section; and

(5) establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of any search for and review of the record.

The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form available to the public at low cost.

(g)(1) Civil Remedies.—Whenever any agency(A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection;

(B) refuses to comply with an individual request under subsection (d)(1) of this section;

(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or

(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual,

the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.

(2)(A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual’s record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.

(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.

(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and

(B) the costs of the action together with reasonable attorney fees as determined by the court.

(5) An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy, within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975.

(h) Rights of Legal Guardians.—For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.

(i)(1) Criminal Penalties.—Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.

(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.

(j) General Exemptions.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is—(1) maintained by the Central Intelligence Agency; or

(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.

(k) Specific Exemptions.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is—(1) subject to the provisions of section 552(b)(1) of this title;

(2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

(3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18;

(4) required by statute to be maintained and used solely as statistical records;

(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or

(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.

(l)(1) Archival Records.—Each agency record which is accepted by the Archivist of the United States for storage, processing, and servicing in accordance with section 3103 of title 44 shall, for the purposes of this section, be considered to be maintained by the agency which deposited the record and shall be subject to the provisions of this section. The Archivist of the United States shall not disclose the record except to the agency which maintains the record, or under rules established by that agency which are not inconsistent with the provisions of this section.

(2) Each agency record pertaining to an identifiable individual which was transferred to the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, prior to the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall not be subject to the provisions of this section, except that a statement generally describing such records (modeled after the requirements relating to records subject to subsections (e)(4)(A) through (G) of this section) shall be published in the Federal Register.

(3) Each agency record pertaining to an identifiable individual which is transferred to the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, on or after the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall be exempt from the requirements of this section except subsections (e)(4)(A) through (G) and (e)(9) of this section.

(m)(1) Government Contractors.—When an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall, consistent with its authority, cause the requirements of this section to be applied to such system. For purposes of subsection (i) of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date of this section, shall be considered to be an employee of an agency.

(2) A consumer reporting agency to which a record is disclosed under section 3711(e) of title 31 shall not be considered a contractor for the purposes of this section.

(n) Mailing Lists.—An individual’s name and address may not be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.

(o) Matching Agreements.—(1) No record which is contained in a system of records may be disclosed to a recipient agency or non-Federal agency for use in a computer matching program except pursuant to a written agreement between the source agency and the recipient agency or non-Federal agency specifying—(A) the purpose and legal authority for conducting the program;

(B) the justification for the program and the anticipated results, including a specific estimate of any savings;

(C) a description of the records that will be matched, including each data element that will be used, the approximate number of records that will be matched, and the projected starting and completion dates of the matching program;

(D) procedures for providing individualized notice at the time of application, and notice periodically thereafter as directed by the Data Integrity Board of such agency (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)), to—(i) applicants for and recipients of financial assistance or payments under Federal benefit programs, and

(ii) applicants for and holders of positions as Federal personnel,

that any information provided by such applicants, recipients, holders, and individuals may be subject to verification through matching programs;

(E) procedures for verifying information produced in such matching program as required by subsection (p);

(F) procedures for the retention and timely destruction of identifiable records created by a recipient agency or non-Federal agency in such matching program;

(G) procedures for ensuring the administrative, technical, and physical security of the records matched and the results of such programs;

(H) prohibitions on duplication and redisclosure of records provided by the source agency within or outside the recipient agency or the non-Federal agency, except where required by law or essential to the conduct of the matching program;

(I) procedures governing the use by a recipient agency or non-Federal agency of records provided in a matching program by a source agency, including procedures governing return of the records to the source agency or destruction of records used in such program;

(J) information on assessments that have been made on the accuracy of the records that will be used in such matching program; and

(K) that the Comptroller General may have access to all records of a recipient agency or a non-Federal agency that the Comptroller General deems necessary in order to monitor or verify compliance with the agreement.

(2)(A) A copy of each agreement entered into pursuant to paragraph (1) shall—(i) be transmitted to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives; and

(ii) be available upon request to the public.

(B) No such agreement shall be effective until 30 days after the date on which such a copy is transmitted pursuant to subparagraph (A)(i).

(C) Such an agreement shall remain in effect only for such period, not to exceed 18 months, as the Data Integrity Board of the agency determines is appropriate in light of the purposes, and length of time necessary for the conduct, of the matching program.

(D) Within 3 months prior to the expiration of such an agreement pursuant to subparagraph (C), the Data Integrity Board of the agency may, without additional review, renew the matching agreement for a current, ongoing matching program for not more than one additional year if—(i) such program will be conducted without any change; and

(ii) each party to the agreement certifies to the Board in writing that the program has been conducted in compliance with the agreement.

(p) Verification and Opportunity to Contest Findings.—(1) In order to protect any individual whose records are used in a matching program, no recipient agency, non-Federal agency, or source agency may suspend, terminate, reduce, or make a final denial of any financial assistance or payment under a Federal benefit program to such individual, or take other adverse action against such individual, as a result of information produced by such matching program, until—(A)(i) the agency has independently verified the information; or

(ii) the Data Integrity Board of the agency, or in the case of a non-Federal agency the Data Integrity Board of the source agency, determines in accordance with guidance issued by the Director of the Office of Management and Budget that—(I) the information is limited to identification and amount of benefits paid by the source agency under a Federal benefit program; and

(II) there is a high degree of confidence that the information provided to the recipient agency is accurate;

(B) the individual receives a notice from the agency containing a statement of its findings and informing the individual of the opportunity to contest such findings; and

(C)(i) the expiration of any time period established for the program by statute or regulation for the individual to respond to that notice; or

(ii) in the case of a program for which no such period is established, the end of the 30-day period beginning on the date on which notice under subparagraph (B) is mailed or otherwise provided to the individual.

(2) Independent verification referred to in paragraph (1) requires investigation and confirmation of specific information relating to an individual that is used as a basis for an adverse action against the individual, including where applicable investigation and confirmation of—(A) the amount of any asset or income involved;

(B) whether such individual actually has or had access to such asset or income for such individual’s own use; and

(C) the period or periods when the individual actually had such asset or income.

(3) Notwithstanding paragraph (1), an agency may take any appropriate action otherwise prohibited by such paragraph if the agency determines that the public health or public safety may be adversely affected or significantly threatened during any notice period required by such paragraph.

(q) Sanctions.—(1) Notwithstanding any other provision of law, no source agency may disclose any record which is contained in a system of records to a recipient agency or non-Federal agency for a matching program if such source agency has reason to believe that the requirements of subsection (p), or any matching agreement entered into pursuant to subsection (o), or both, are not being met by such recipient agency.

(2) No source agency may renew a matching agreement unless—(A) the recipient agency or non-Federal agency has certified that it has complied with the provisions of that agreement; and

(B) the source agency has no reason to believe that the certification is inaccurate.

(r) Report on New Systems and Matching Programs.—Each agency that proposes to establish or make a significant change in a system of records or a matching program shall provide adequate advance notice of any such proposal (in duplicate) to the Committee on Government Operations of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget in order to permit an evaluation of the probable or potential effect of such proposal on the privacy or other rights of individuals.

(s) Biennial Report.—The President shall biennially submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report—(1) describing the actions of the Director of the Office of Management and Budget pursuant to section 6 of the Privacy Act of 1974 during the preceding 2 years;

(2) describing the exercise of individual rights of access and amendment under this section during such years;

(3) identifying changes in or additions to systems of records;

(4) containing such other information concerning administration of this section as may be necessary or useful to the Congress in reviewing the effectiveness of this section in carrying out the purposes of the Privacy Act of 1974.

(t)(1) Effect of Other Laws.—No agency shall rely on any exemption contained in section 552 of this title to withhold from an individual any record which is otherwise accessible to such individual under the provisions of this section.

(2) No agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 of this title.

(u) Data Integrity Boards.—(1) Every agency conducting or participating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency’s implementation of this section.

(2) Each Data Integrity Board shall consist of senior officials designated by the head of the agency, and shall include any senior official designated by the head of the agency as responsible for implementation of this section, and the inspector general of the agency, if any. The inspector general shall not serve as chairman of the Data Integrity Board.

(3) Each Data Integrity Board—(A) shall review, approve, and maintain all written agreements for receipt or disclosure of agency records for matching programs to ensure compliance with subsection (o), and all relevant statutes, regulations, and guidelines;

(B) shall review all matching programs in which the agency has participated during the year, either as a source agency or recipient agency, determine compliance with applicable laws, regulations, guidelines, and agency agreements, and assess the costs and benefits of such programs;

(C) shall review all recurring matching programs in which the agency has participated during the year, either as a source agency or recipient agency, for continued justification for such disclosures;

(D) shall compile an annual report, which shall be submitted to the head of the agency and the Office of Management and Budget and made available to the public on request, describing the matching activities of the agency, including—(i) matching programs in which the agency has participated as a source agency or recipient agency;

(ii) matching agreements proposed under subsection (o) that were disapproved by the Board;

(iii) any changes in membership or structure of the Board in the preceding year;

(iv) the reasons for any waiver of the requirement in paragraph (4) of this section for completion and submission of a cost-benefit analysis prior to the approval of a matching program;

(v) any violations of matching agreements that have been alleged or identified and any corrective action taken; and

(vi) any other information required by the Director of the Office of Management and Budget to be included in such report;

(E) shall serve as a clearinghouse for receiving and providing information on the accuracy, completeness, and reliability of records used in matching programs;

(F) shall provide interpretation and guidance to agency components and personnel on the requirements of this section for matching programs;

(G) shall review agency recordkeeping and disposal policies and practices for matching programs to assure compliance with this section; and

(H) may review and report on any agency matching activities that are not matching programs.

(4)(A) Except as provided in subparagraphs (B) and (C), a Data Integrity Board shall not approve any written agreement for a matching program unless the agency has completed and submitted to such Board a cost-benefit analysis of the proposed program and such analysis demonstrates that the program is likely to be cost effective.22 So in original. Probably should be “cost-effective.”

(B) The Board may waive the requirements of subparagraph (A) of this paragraph if it determines in writing, in accordance with guidelines prescribed by the Director of the Office of Management and Budget, that a cost-benefit analysis is not required.

(C) A cost-benefit analysis shall not be required under subparagraph (A) prior to the initial approval of a written agreement for a matching program that is specifically required by statute. Any subsequent written agreement for such a program shall not be approved by the Data Integrity Board unless the agency has submitted a cost-benefit analysis of the program as conducted under the preceding approval of such agreement.

(5)(A) If a matching agreement is disapproved by a Data Integrity Board, any party to such agreement may appeal the disapproval to the Director of the Office of Management and Budget. Timely notice of the filing of such an appeal shall be provided by the Director of the Office of Management and Budget to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives.

(B) The Director of the Office of Management and Budget may approve a matching agreement notwithstanding the disapproval of a Data Integrity Board if the Director determines that—(i) the matching program will be consistent with all applicable legal, regulatory, and policy requirements;

(ii) there is adequate evidence that the matching agreement will be cost-effective; and

(iii) the matching program is in the public interest.

(C) The decision of the Director to approve a matching agreement shall not take effect until 30 days after it is reported to committees described in subparagraph (A).

(D) If the Data Integrity Board and the Director of the Office of Management and Budget disapprove a matching program proposed by the inspector general of an agency, the inspector general may report the disapproval to the head of the agency and to the Congress.

(6) In the reports required by paragraph (3)(D), agency matching activities that are not matching programs may be reported on an aggregate basis, if and to the extent necessary to protect ongoing law enforcement or counterintelligence investigations.

(v) Office of Management and Budget Responsibilities.—The Director of the Office of Management and Budget shall—(1) develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section; and

(2) provide continuing assistance to and oversight of the implementation of this section by agencies.

(w) Applicability to Bureau of Consumer Financial Protection.—Except as provided in the Consumer Financial Protection Act of 2010, this section shall apply with respect to the Bureau of Consumer Financial Protection.

(Added Pub. L. 93–579, § 3, Dec. 31, 1974, 88 Stat. 1897; amended Pub. L. 94–183, § 2(2), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 97–365, § 2, Oct. 25, 1982, 96 Stat. 1749; Pub. L. 97–375, title II, § 201(a), (b), Dec. 21, 1982, 96 Stat. 1821; Pub. L. 97–452, § 2(a)(1), Jan. 12, 1983, 96 Stat. 2478; Pub. L. 98–477, § 2(c), Oct. 15, 1984, 98 Stat. 2211; Pub. L. 98–497, title I, § 107(g), Oct. 19, 1984, 98 Stat. 2292; Pub. L. 100–503, §§ 2–6(a), 7, 8, Oct. 18, 1988, 102 Stat. 2507–2514; Pub. L. 101–508, title VII, § 7201(b)(1), Nov. 5, 1990, 104 Stat. 1388–334; Pub. L. 103–66, title XIII, § 13581(c), Aug. 10, 1993, 107 Stat. 611; Pub. L. 104–193, title I, § 110(w), Aug. 22, 1996, 110 Stat. 2175; Pub. L. 104–226, § 1(b)(3), Oct. 2, 1996, 110 Stat. 3033; Pub. L. 104–316, title I, § 115(g)(2)(B), Oct. 19, 1996, 110 Stat. 3835; Pub. L. 105–34, title X, § 1026(b)(2), Aug. 5, 1997, 111 Stat. 925; Pub. L. 105–362, title XIII, § 1301(d), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 106–170, title IV, § 402(a)(2), Dec. 17, 1999, 113 Stat. 1908; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 111–148, title VI, § 6402(b)(2), Mar. 23, 2010, 124 Stat. 756; Pub. L. 111–203, title X, § 1082, July 21, 2010, 124 Stat. 2080; Pub. L. 113–295, div. B, title I, § 102(d), Dec. 19, 2014, 128 Stat. 4062.)

Editorial Notes

References in TextSection 552(e) of this title, referred to in subsec. (a)(1), was redesignated section 552(f) of this title by section 1802(b) of Pub. L. 99–570.
Section 6103 of the Internal Revenue Code of 1986, referred to in subsec. (a)(8)(B)(iv), (vii), is classified to section 6103 of Title 26, Internal Revenue Code.
Sections 404, 464, and 1137 of the Social Security Act, referred to in subsec. (a)(8)(B)(iv), are classified to sections 604, 664, and 1320b–7, respectively, of Title 42, The Public Health and Welfare.
The Achieving a Better Life Experience Act of 2014, referred to in subsec. (a)(8)(B)(x), probably means Pub. L. 113–295, div. B, Dec. 19, 2014, 128 Stat. 4056, known as the Stephen Beck, Jr., Achieving a Better Life Experience Act of 2014 or the Stephen Beck, Jr., ABLE Act of 2014. The Act does not contain a section 3.
For effective date of this section, referred to in subsecs. (k)(2), (5), (7), (l)(2), (3), and (m), see Effective Date note below.
Section 6 of the Privacy Act of 1974, referred to in subsec. (s)(1), is section 6 of Pub. L. 93–579, which was set out below and was repealed by section 6(c) of Pub. L. 100–503.
For classification of the Privacy Act of 1974, referred to in subsec. (s)(4), see Short Title note below.
The Consumer Financial Protection Act of 2010, referred to in subsec. (w), is title X of Pub. L. 111–203, July 21, 2010, 124 Stat. 1955, which enacted subchapter V (§ 5481 et seq.) of chapter 53 of Title 12, Banks and Banking, and enacted and amended numerous other sections and notes in the Code. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of Title 12 and Tables.

Codification
Section 552a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2244 of Title 7, Agriculture.

Amendments2014—Subsec. (a)(8)(B)(x). Pub. L. 113–295 added cl. (x).
2010—Subsec. (a)(8)(B)(ix). Pub. L. 111–148 added cl. (ix).
Subsec. (w). Pub. L. 111–203 added subsec. (w).
2004—Subsec. (b)(10). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.
1999—Subsec. (a)(8)(B)(viii). Pub. L. 106–170 added cl. (viii).
1998—Subsec. (u)(6), (7). Pub. L. 105–362 redesignated par. (7) as (6), substituted “paragraph (3)(D)” for “paragraphs (3)(D) and (6)”, and struck out former par. (6) which read as follows: “The Director of the Office of Management and Budget shall, annually during the first 3 years after the date of enactment of this subsection and biennially thereafter, consolidate in a report to the Congress the information contained in the reports from the various Data Integrity Boards under paragraph (3)(D). Such report shall include detailed information about costs and benefits of matching programs that are conducted during the period covered by such consolidated report, and shall identify each waiver granted by a Data Integrity Board of the requirement for completion and submission of a cost-benefit analysis and the reasons for granting the waiver.”
1997—Subsec. (a)(8)(B)(vii). Pub. L. 105–34 added cl. (vii).
1996—Subsec. (a)(8)(B)(iv)(III). Pub. L. 104–193 substituted “section 404(e), 464,” for “section 464”.
Subsec. (a)(8)(B)(v) to (vii). Pub. L. 104–226 inserted “or” at end of cl. (v), struck out “or” at end of cl. (vi), and struck out cl. (vii) which read as follows: “matches performed pursuant to section 6103(l)(12) of the Internal Revenue Code of 1986 and section 1144 of the Social Security Act;”.
Subsecs. (b)(12), (m)(2). Pub. L. 104–316 substituted “3711(e)” for “3711(f)”.
1993—Subsec. (a)(8)(B)(vii). Pub. L. 103–66 added cl. (vii).
1990—Subsec. (p). Pub. L. 101–508 amended subsec. (p) generally, restating former pars. (1) and (3) as par. (1), adding provisions relating to Data Integrity Boards, and restating former pars. (2) and (4) as (2) and (3), respectively.
1988—Subsec. (a)(8) to (13). Pub. L. 100–503, § 5, added pars. (8) to (13).
Subsec. (e)(12). Pub. L. 100–503, § 3(a), added par. (12).
Subsec. (f). Pub. L. 100–503, § 7, substituted “biennially” for “annually” in last sentence.
Subsecs. (o) to (q). Pub. L. 100–503, § 2(2), added subsecs. (o) to (q). Former subsecs. (o) to (q) redesignated (r) to (t), respectively.
Subsec. (r). Pub. L. 100–503, § 3(b), inserted “and matching programs” in heading and amended text generally. Prior to amendment, text read as follows: “Each agency shall provide adequate advance notice to Congress and the Office of Management and Budget of any proposal to establish or alter any system of records in order to permit an evaluation of the probable or potential effect of such proposal on the privacy and other personal or property rights of individuals or the disclosure of information relating to such individuals, and its effect on the preservation of the constitutional principles of federalism and separation of powers.”
Pub. L. 100–503, § 2(1), redesignated former subsec. (o) as (r).
Subsec. (s). Pub. L. 100–503, § 8, substituted “Biennial” for “Annual” in heading, “biennially submit” for “annually submit” in introductory provisions, “preceding 2 years” for “preceding year” in par. (1), and “such years” for “such year” in par. (2).
Pub. L. 100–503, § 2(1), redesignated former subsec. (p) as (s).
Subsec. (t). Pub. L. 100–503, § 2(1), redesignated former subsec. (q) as (t).
Subsec. (u). Pub. L. 100–503, § 4, added subsec. (u).
Subsec. (v). Pub. L. 100–503, § 6(a), added subsec. (v).
1984—Subsec. (b)(6). Pub. L. 98–497, § 107(g)(1), substituted “National Archives and Records Administration” for “National Archives of the United States”, and “Archivist of the United States or the designee of the Archivist” for “Administrator of General Services or his designee”.
Subsec. (l)(1). Pub. L. 98–497, § 107(g)(2), substituted “Archivist of the United States” for “Administrator of General Services” in two places.
Subsec. (q). Pub. L. 98–477 designated existing provisions as par. (1) and added par. (2).
1983—Subsec. (b)(12). Pub. L. 97–452 substituted “section 3711(f) of title 31” for “section 3(d) of the Federal Claims Collection Act of 1966 (31 U.S.C. 952(d))”.
Subsec. (m)(2). Pub. L. 97–452 substituted “section 3711(f) of title 31” for “section 3(d) of the Federal Claims Collection Act of 1966 (31 U.S.C. 952(d))”.
1982—Subsec. (b)(12). Pub. L. 97–365, § 2(a), added par. (12).
Subsec. (e)(4). Pub. L. 97–375, § 201(a), substituted “upon establishment or revision” for “at least annually” after “Federal Register”.
Subsec. (m). Pub. L. 97–365, § 2(b), designated existing provisions as par. (1) and added par. (2).
Subsec. (p). Pub. L. 97–375, § 201(b), substituted provisions requiring annual submission of a report by the President to the Speaker of the House and President pro tempore of the Senate relating to the Director of the Office of Management and Budget, individual rights of access, changes or additions to systems of records, and other necessary or useful information, for provisions which had directed the President to submit to the Speaker of the House and the President of the Senate, by June 30 of each calendar year, a consolidated report, separately listing for each Federal agency the number of records contained in any system of records which were exempted from the application of this section under the provisions of subsections (j) and (k) of this section during the preceding calendar year, and the reasons for the exemptions, and such other information as indicate efforts to administer fully this section.
1975—Subsec. (g)(5). Pub. L. 94–183 substituted “to September 27, 1975” for “to the effective date of this section”.

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective Date of 2014 AmendmentPub. L. 113–295, div. B, title I, § 102(f)(1), Dec. 19, 2014, 128 Stat. 4062, provided that: “The amendments made by this section [enacting section 529A of Title 26, Internal Revenue Code, and amending this section, section 5517 of Title 12, Banks and Banking, and sections 26, 877A, 4965, 4973, and 6693 of Title 26] shall apply to taxable years beginning after December 31, 2014.”

Effective Date of 2010 AmendmentPub. L. 111–203, title X, § 1082, July 21, 2010, 124 Stat. 2080, provided that the amendment made by section 1082 is effective on July 21, 2010.
Pub. L. 111–203, title X, § 1100H, July 21, 2010, 124 Stat. 2113, provided that: “Except as otherwise provided in this subtitle [subtitle H (§§ 1081–1100H) of title X of Pub. L. 111–203, see Tables for classification] and the amendments made by this subtitle, this subtitle and the amendments made by this subtitle, other than sections 1081 [amending section 8G of Pub. L. 95–452, set out in the Appendix to this title, and enacting provisions set out as a note under section 8G of Pub. L. 95–452] and 1082 [amending this section and enacting provisions set out as a note under this section], shall become effective on the designated transfer date.”

[The term “designated transfer date” is defined in section 5481(9) of Title 12, Banks and Banking, as the date established under section 5582 of Title 12, which is July 21, 2011.]

Effective Date of 1999 AmendmentAmendment by Pub. L. 106–170 applicable to individuals whose period of confinement in an institution commences on or after the first day of the fourth month beginning after December 1999, see section 402(a)(4) of Pub. L. 106–170, set out as a note under section 402 of Title 42, The Public Health and Welfare.

Effective Date of 1997 AmendmentAmendment by Pub. L. 105–34 applicable to levies issued after Aug. 5, 1997, see section 1026(c) of Pub. L. 105–34, set out as a note under section 6103 of Title 26, Internal Revenue Code.

Effective Date of 1996 AmendmentAmendment by Pub. L. 104–193 effective July 1, 1997, with transition rules relating to State options to accelerate such date, rules relating to claims, actions, and proceedings commenced before such date, rules relating to closing out of accounts for terminated or substantially modified programs and continuance in office of Assistant Secretary for Family Support, and provisions relating to termination of entitlement under AFDC program, see section 116 of Pub. L. 104–193, as amended, set out as an Effective Date note under section 601 of Title 42, The Public Health and Welfare.

Effective Date of 1993 AmendmentAmendment by Pub. L. 103–66 effective Jan. 1, 1994, see section 13581(d) of Pub. L. 103–66, set out as a note under section 1395y of Title 42, The Public Health and Welfare.

Effective Date of 1988 AmendmentPub. L. 100–503, § 10, Oct. 18, 1988, 102 Stat. 2514, as amended by Pub. L. 101–56, § 2, July 19, 1989, 103 Stat. 149, provided that:
“(a) In General.—Except as provided in subsections (b) and (c), the amendments made by this Act [amending this section and repealing provisions set out as a note below] shall take effect 9 months after the date of enactment of this Act [Oct. 18, 1988].

“(b) Exceptions.—The amendment made by sections 3(b), 6, 7, and 8 of this Act [amending this section and repealing provisions set out as a note below] shall take effect upon enactment.

“(c) Effective Date Delayed for Existing Programs.—In the case of any matching program (as defined in section 552a(a)(8) of title 5, United States Code, as added by section 5 of this Act) in operation before June 1, 1989, the amendments made by this Act (other than the amendments described in subsection (b)) shall take effect January 1, 1990, if—“(1) such matching program is identified by an agency as being in operation before June 1, 1989; and

“(2) such identification is—“(A) submitted by the agency to the Committee on Governmental Affairs of the Senate, the Committee on Government Operations of the House of Representatives, and the Office of Management and Budget before August 1, 1989, in a report which contains a schedule showing the dates on which the agency expects to have such matching program in compliance with the amendments made by this Act, and

“(B) published by the Office of Management and Budget in the Federal Register, before September 15, 1989.”

Effective Date of 1984 AmendmentAmendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of Title 44, Public Printing and Documents.

Effective DatePub. L. 93–579, § 8, Dec. 31, 1974, 88 Stat. 1910, provided that: “The provisions of this Act [enacting this section and provisions set out as notes under this section] shall be effective on and after the date of enactment [Dec. 31, 1974], except that the amendments made by sections 3 and 4 [enacting this section and amending analysis preceding section 500 of this title] shall become effective 270 days following the day on which this Act is enacted.”

Short Title of 1990 AmendmentPub. L. 101–508, title VII, § 7201(a), Nov. 5, 1990, 104 Stat. 1388–334, provided that: “This section [amending this section and enacting provisions set out as notes below] may be cited as the ‘Computer Matching and Privacy Protection Amendments of 1990’.”

Short Title of 1989 AmendmentPub. L. 101–56, § 1, July 19, 1989, 103 Stat. 149, provided that: “This Act [amending section 10 of Pub. L. 100–503, set out as a note above] may be cited as the ‘Computer Matching and Privacy Protection Act Amendments of 1989’.”

Short Title of 1988 AmendmentPub. L. 100–503, § 1, Oct. 18, 1988, 102 Stat. 2507, provided that: “This Act [amending this section, enacting provisions set out as notes above and below, and repealing provisions set out as a note below] may be cited as the ‘Computer Matching and Privacy Protection Act of 1988’.”

Short Title of 1974 AmendmentPub. L. 93–579, § 1, Dec. 31, 1974, 88 Stat. 1896, provided: “That this Act [enacting this section and provisions set out as notes under this section] may be cited as the ‘Privacy Act of 1974’.”

Short TitleThis section is popularly known as the “Privacy Act” and the “Privacy Act of 1974”.

Termination of Reporting RequirementsFor termination, effective May 15, 2000, of reporting provisions in subsec. (s) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 31 of House Document No. 103–7.

Delegation of Functions
Functions of Director of Office of Management and Budget under this section delegated to Administrator for Office of Information and Regulatory Affairs by section 3 of Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2825, set out as a note under section 3503 of Title 44, Public Printing and Documents.

OMB Guidance on Electronic Consent and Access FormsPub. L. 116–50, § 3, Aug. 22, 2019, 133 Stat. 1073, provided that:
“(a) Guidance.—Not later than 1 year after the date of the enactment of this Act [Aug. 22, 2019], the Director shall issue guidance that does the following:“(1) Requires each agency to accept electronic identity proofing and authentication processes for the purposes of allowing an individual to provide prior written consent for the disclosure of the individual’s records under section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) of such title.

“(2) Creates a template for electronic consent and access forms and requires each agency to post the template on the agency website and to accept the forms from any individual properly identity proofed and authenticated in accordance with paragraph (1) for the purpose of authorizing disclosure of the individual’s records under section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) of such title.

“(3) Requires each agency to accept the electronic consent and access forms described in paragraph (2) from any individual properly identity proofed and authenticated in accordance with paragraph (1) for the purpose of authorizing disclosure of the individual’s records to another entity, including a congressional office, in accordance with section 552a(b) of title 5, United States Code, or for individual access to records under section 552a(d) [of such title].

“(b) Agency Compliance.—Each agency shall comply with the guidance issued pursuant to subsection (a) not later than 1 year after the date on which such guidance is issued.

“(c) Definitions.—In this section:“(1) Agency; individual; record.—The terms ‘agency’, ‘individual’, and ‘record’ have the meanings given those terms in section 552a(a) of title 5, United States Code.

“(2) Director.—The term ‘Director’ means the Director of the Office of Management and Budget.”

Extension of Privacy Act Remedies to Citizens of Designated CountriesPub. L. 114–126, Feb. 24, 2016, 130 Stat. 282, provided that:
“SECTION 1. SHORT TITLE.“This Act may be cited as the ‘Judicial Redress Act of 2015’.

“SEC. 2. EXTENSION OF PRIVACY ACT REMEDIES TO CITIZENS OF DESIGNATED COUNTRIES.“(a) Civil Action; Civil Remedies.—With respect to covered records, a covered person may bring a civil action against an agency and obtain civil remedies, in the same manner, to the same extent, and subject to the same limitations, including exemptions and exceptions, as an individual may bring and obtain with respect to records under—“(1) section 552a(g)(1)(D) of title 5, United States Code, but only with respect to disclosures intentionally or willfully made in violation of section 552a(b) of such title; and

“(2) subparagraphs (A) and (B) of section 552a(g)(1) of title 5, United States Code, but such an action may only be brought against a designated Federal agency or component.

“(b) Exclusive Remedies.—The remedies set forth in subsection (a) are the exclusive remedies available to a covered person under this section.

“(c) Application of the Privacy Act With Respect to a Covered Person.—For purposes of a civil action described in subsection (a), a covered person shall have the same rights, and be subject to the same limitations, including exemptions and exceptions, as an individual has and is subject to under section 552a of title 5, United States Code, when pursuing the civil remedies described in paragraphs (1) and (2) of subsection (a).

“(d) Designation of Covered Country.—“(1) In general.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, designate a foreign country or regional economic integration organization, or member country of such organization, as a ‘covered country’ for purposes of this section if—“(A)(i) the country or regional economic integration organization, or member country of such organization, has entered into an agreement with the United States that provides for appropriate privacy protections for information shared for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses; or

“(ii) the Attorney General has determined that the country or regional economic integration organization, or member country of such organization, has effectively shared information with the United States for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses and has appropriate privacy protections for such shared information;

“(B) the country or regional economic integration organization, or member country of such organization, permits the transfer of personal data for commercial purposes between the territory of that country or regional economic organization and the territory of the United States, through an agreement with the United States or otherwise; and

“(C) the Attorney General has certified that the policies regarding the transfer of personal data for commercial purposes and related actions of the country or regional economic integration organization, or member country of such organization, do not materially impede the national security interests of the United States.

“(2) Removal of designation.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, revoke the designation of a foreign country or regional economic integration organization, or member country of such organization, as a ‘covered country’ if the Attorney General determines that such designated ‘covered country’—“(A) is not complying with the agreement described under paragraph (1)(A)(i);

“(B) no longer meets the requirements for designation under paragraph (1)(A)(ii);

“(C) fails to meet the requirements under paragraph (1)(B);

“(D) no longer meets the requirements for certification under paragraph (1)(C); or

“(E) impedes the transfer of information (for purposes of reporting or preventing unlawful activity) to the United States by a private entity or person.

“(e) Designation of Designated Federal Agency or Component.—“(1) In general.—The Attorney General shall determine whether an agency or component thereof is a ‘designated Federal agency or component’ for purposes of this section. The Attorney General shall not designate any agency or component thereof other than the Department of Justice or a component of the Department of Justice without the concurrence of the head of the relevant agency, or of the agency to which the component belongs.

“(2) Requirements for designation.—The Attorney General may determine that an agency or component of an agency is a ‘designated Federal agency or component’ for purposes of this section, if—“(A) the Attorney General determines that information exchanged by such agency with a covered country is within the scope of an agreement referred to in subsection (d)(1)(A); or

“(B) with respect to a country or regional economic integration organization, or member country of such organization, that has been designated as a ‘covered country’ under subsection (d)(1)(B), the Attorney General determines that designating such agency or component thereof is in the law enforcement interests of the United States.

“(f) Federal Register Requirement; Nonreviewable Determination.—The Attorney General shall publish each determination made under subsections (d) and (e). Such determination shall not be subject to judicial or administrative review.

“(g) Jurisdiction.—The United States District Court for the District of Columbia shall have exclusive jurisdiction over any claim arising under this section.

“(h) Definitions.—In this Act:“(1) Agency.—The term ‘agency’ has the meaning given that term in section 552(f) of title 5, United States Code.

“(2) Covered country.—The term ‘covered country’ means a country or regional economic integration organization, or member country of such organization, designated in accordance with subsection (d).

“(3) Covered person.—The term ‘covered person’ means a natural person (other than an individual) who is a citizen of a covered country.

“(4) Covered record.—The term ‘covered record’ has the same meaning for a covered person as a record has for an individual under section 552a of title 5, United States Code, once the covered record is transferred—“(A) by a public authority of, or private entity within, a country or regional economic organization, or member country of such organization, which at the time the record is transferred is a covered country; and

“(B) to a designated Federal agency or component for purposes of preventing, investigating, detecting, or prosecuting criminal offenses.

“(5) Designated federal agency or component.—The term ‘designated Federal agency or component’ means a Federal agency or component of an agency designated in accordance with subsection (e).

“(6) Individual.—The term ‘individual’ has the meaning given that term in section 552a(a)(2) of title 5, United States Code.

“(i) Preservation of Privileges.—Nothing in this section shall be construed to waive any applicable privilege or require the disclosure of classified information. Upon an agency’s request, the district court shall review in camera and ex parte any submission by the agency in connection with this subsection.

“(j) Effective Date.—This Act shall take effect 90 days after the date of the enactment of this Act [Feb. 24, 2016].”

Publication of Guidance Under Subsection (p)(1)(A)(ii)Pub. L. 101–508, title VII, § 7201(b)(2), Nov. 5, 1990, 104 Stat. 1388–334, provided that: “Not later than 90 days after the date of the enactment of this Act [Nov. 5, 1990], the Director of the Office of Management and Budget shall publish guidance under subsection (p)(1)(A)(ii) of section 552a of title 5, United States Code, as amended by this Act.”

Limitation on Application of Verification RequirementPub. L. 101–508, title VII, § 7201(c), Nov. 5, 1990, 104 Stat. 1388–335, provided that:
“Section 552a(p)(1)(A)(ii)(II) of title 5, United States Code, as amended by section 2 [probably means section 7201(b)(1) of Pub. L. 101–508], shall not apply to a program referred to in paragraph (1), (2), or (4) of section 1137(b) of the Social Security Act (42 U.S.C. 1320b–7), until the earlier of—
“(1) the date on which the Data Integrity Board of the Federal agency which administers that program determines that there is not a high degree of confidence that information provided by that agency under Federal matching programs is accurate; or

“(2) 30 days after the date of publication of guidance under section 2(b) [probably means section 7201(b)(2) of Pub. L. 101–508, set out as a note above].”

Effective Date Delayed for Certain Education Benefits Computer Matching ProgramsPub. L. 101–366, title II, § 206(d), Aug. 15, 1990, 104 Stat. 442, provided that:
“(1) In the case of computer matching programs between the Department of Veterans Affairs and the Department of Defense in the administration of education benefits programs under chapters 30 and 32 of title 38 and chapter 106 of title 10, United States Code, the amendments made to section 552a of title 5, United States Code, by the Computer Matching and Privacy Protection Act of 1988 [Pub. L. 100–503] (other than the amendments made by section 10(b) of that Act) [see Effective Date of 1988 Amendment note above] shall take effect on October 1, 1990.

“(2) For purposes of this subsection, the term ‘matching program’ has the same meaning provided in section 552a(a)(8) of title 5, United States Code.”

Implementation Guidance for 1988 AmendmentsPub. L. 100–503, § 6(b), Oct. 18, 1988, 102 Stat. 2513, required the Director, pursuant to section 552a(v) of this title, to develop guidelines and regulations for the use of agencies in implementing amendments made by Pub. L. 100–503 not later than 8 months after Oct. 18, 1988.

Construction of 1988 AmendmentsPub. L. 100–503, § 9, Oct. 18, 1988, 102 Stat. 2514, provided that:
“Nothing in the amendments made by this Act [amending this section and repealing provisions set out as a note below] shall be construed to authorize—
“(1) the establishment or maintenance by any agency of a national data bank that combines, merges, or links information on individuals maintained in systems of records by other Federal agencies;

“(2) the direct linking of computerized systems of records maintained by Federal agencies;

“(3) the computer matching of records not otherwise authorized by law; or

“(4) the disclosure of records for computer matching except to a Federal, State, or local agency.”

Congressional Findings and Statement of PurposePub. L. 93–579, § 2, Dec. 31, 1974, 88 Stat. 1896, provided that:
“(a) The Congress finds that—“(1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies;

“(2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information;

“(3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems;

“(4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and

“(5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use, and dissemination of information by such agencies.

“(b) The purpose of this Act [enacting this section and provisions set out as notes under this section] is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to—“(1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies;

“(2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent;

“(3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records;

“(4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information;

“(5) permit exemptions from the requirements with respect to records provided in this Act only in those cases where there is an important public policy need for such exemption as has been determined by specific statutory authority; and

“(6) be subject to civil suit for any damages which occur as a result of willful or intentional action which violates any individual’s rights under this Act.”

Privacy Protection Study CommissionPub. L. 93–579, § 5, Dec. 31, 1974, 88 Stat. 1905, as amended by Pub. L. 95–38, June 1, 1977, 91 Stat. 179, which established the Privacy Protection Study Commission and provided that the Commission study data banks, automated data processing programs and information systems of governmental, regional and private organizations to determine standards and procedures in force for protection of personal information, that the Commission report to the President and Congress the extent to which requirements and principles of section 552a of title 5 should be applied to the information practices of those organizations, and that it make other legislative recommendations to protect the privacy of individuals while meeting the legitimate informational needs of government and society, ceased to exist on September 30, 1977, pursuant to section 5(g) of Pub. L. 93–579.

Guidelines and Regulations for Maintenance of Privacy and Protection of Records of IndividualsPub. L. 93–579, § 6, Dec. 31, 1974, 88 Stat. 1909, which provided that the Office of Management and Budget shall develop guidelines and regulations for use of agencies in implementing provisions of this section and provide continuing assistance to and oversight of the implementation of the provisions of such section by agencies, was repealed by Pub. L. 100–503, § 6(c), Oct. 18, 1988, 102 Stat. 2513.

Disclosure of Social Security NumberPub. L. 93–579, § 7, Dec. 31, 1974, 88 Stat. 1909, provided that:
“(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number.

“(2) the [The] provisions of paragraph (1) of this subsection shall not apply with respect to—“(A) any disclosure which is required by Federal statute, or

“(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.

“(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.”

Authorization of Appropriations to Privacy Protection Study CommissionPub. L. 93–579, § 9, Dec. 31, 1974, 88 Stat. 1910, as amended by Pub. L. 94–394, Sept. 3, 1976, 90 Stat. 1198, authorized appropriations for the period beginning July 1, 1975, and ending on September 30, 1977.

Executive Documents

Ex. Ord. No. 9397. Numbering System for Federal Accounts Relating to Individual Persons
Ex. Ord. No. 9397, Nov. 22, 1943, 8 F.R. 16095, as amended by Ex. Ord. No. 13478, § 2, Nov. 18, 2008, 73 F.R. 70239, provided:
WHEREAS certain Federal agencies from time to time require in the administration of their activities a system of numerical identification of accounts of individual persons; and
WHEREAS some seventy million persons have heretofore been assigned account numbers pursuant to the Social Security Act; and
WHEREAS a large percentage of Federal employees have already been assigned account numbers pursuant to the Social Security Act; and
WHEREAS it is desirable in the interest of economy and orderly administration that the Federal Government move towards the use of a single, unduplicated numerical identification system of accounts and avoid the unnecessary establishment of additional systems:
NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, it is hereby ordered as follows:
1. Hereafter any Federal department, establishment, or agency may, whenever the head thereof finds it advisable to establish a new system of permanent account numbers pertaining to individual persons, utilize the Social Security Act account numbers assigned pursuant to title 20, section 422.103 of the Code of Federal Regulations and pursuant to paragraph 2 of this order.
2. The Social Security Administration shall provide for the assignment of an account number to each person who is required by any Federal agency to have such a number but who has not previously been assigned such number by the Administration. The Administration may accomplish this purpose by (a) assigning such numbers to individual persons, (b) assigning blocks of numbers to Federal agencies for reassignment to individual persons, or (c) making such other arrangements for the assignment of numbers as it may deem appropriate.
3. The Social Security Administration shall furnish, upon request of any Federal agency utilizing the numerical identification system of accounts provided for in this order, the account number pertaining to any person with whom such agency has an account or the name and other identifying data pertaining to any account number of any such person.
4. The Social Security Administration and each Federal agency shall maintain the confidential character of information relating to individual persons obtained pursuant to the provisions of this order.
5. There shall be transferred to the Social Security Administration, from time to time, such amounts as the Director of the Office of Management and Budget shall determine to be required for reimbursement by any Federal agency for the services rendered by the Administration pursuant to the provisions of this order.
6. This order shall be implemented in accordance with applicable law and subject to the availability of appropriations.
7. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.
8. This order shall be published in the Federal Register.

Classified National Security Information
For provisions relating to a response to a request for information under this section when the fact of its existence or nonexistence is itself classified or when it was originally classified by another agency, see Ex. Ord. No. 13526, § 3.6, Dec. 29, 2009, 75 F.R. 718, set out as a note under section 3161 of Title 50, War and National Defense.

§ 552b. Open meetings(a) For purposes of this section—(1) the term “agency” means any agency, as defined in section 552(e) 11 See References in Text note below. of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency;

(2) the term “meeting” means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and

(3) the term “member” means an individual who belongs to a collegial body heading an agency.

(b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation.

(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to—(1) disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order;

(2) relate solely to the internal personnel rules and practices of an agency;

(3) disclose matters specifically exempted from disclosure by statute (other than section 552 of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) involve accusing any person of a crime, or formally censuring any person;

(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;

(8) disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;

(9) disclose information the premature disclosure of which would—(A) in the case of an agency which regulates currencies, securities, commodities, or financial institutions, be likely to (i) lead to significant financial speculation in currencies, securities, or commodities, or (ii) significantly endanger the stability of any financial institution; or

(B) in the case of any agency, be likely to significantly frustrate implementation of a proposed agency action,

except that subparagraph (B) shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final agency action on such proposal; or

(10) specifically concern the agency’s issuance of a subpena, or the agency’s participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.

(d)(1) Action under subsection (c) shall be taken only when a majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each agency member participating in such vote shall be recorded and no proxies shall be allowed.

(2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraph (5), (6), or (7) of subsection (c), the agency, upon request of any one of its members, shall vote by recorded vote whether to close such meeting.

(3) Within one day of any vote taken pursuant to paragraph (1) or (2), the agency shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the agency shall, within one day of the vote taken pursuant to paragraph (1) or (2) of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation.

(4) Any agency, a majority of whose meetings may properly be closed to the public pursuant to paragraph (4), (8), (9)(A), or (10) of subsection (c), or any combination thereof, may provide by regulation for the closing of such meetings or portions thereof in the event that a majority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to close the exempt portion or portions of the meeting, and a copy of such vote, reflecting the vote of each member on the question, is made available to the public. The provisions of paragraphs (1), (2), and (3) of this subsection and subsection (e) shall not apply to any portion of a meeting to which such regulations apply: Provided, That the agency shall, except to the extent that such information is exempt from disclosure under the provisions of subsection (c), provide the public with public announcement of the time, place, and subject matter of the meeting and of each portion thereof at the earliest practicable time.

(e)(1) In the case of each meeting, the agency shall make public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the agency determines by a recorded vote that agency business requires that such meeting be called at an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time.

(2) The time or place of a meeting may be changed following the public announcement required by paragraph (1) only if the agency publicly announces such change at the earliest practicable time. The subject matter of a meeting, or the determination of the agency to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by this subsection only if (A) a majority of the entire membership of the agency determines by a recorded vote that agency business so requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the vote of each member upon such change at the earliest practicable time.

(3) Immediately following each public announcement required by this subsection, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting, shall also be submitted for publication in the Federal Register.

(f)(1) For every meeting closed pursuant to paragraphs (1) through (10) of subsection (c), the General Counsel or chief legal officer of the agency shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by the agency. The agency shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, or portion of a meeting, closed to the public pursuant to paragraph (8), (9)(A), or (10) of subsection (c), the agency shall maintain either such a transcript or recording, or a set of minutes. Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote (reflecting the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.

(2) The agency shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c). Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription. The agency shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two years after such meeting, or until one year after the conclusion of any agency proceeding with respect to which the meeting or portion was held, whichever occurs later.

(g) Each agency subject to the requirements of this section shall, within 180 days after the date of enactment of this section, following consultation with the Office of the Chairman of the Administrative Conference of the United States and published notice in the Federal Register of at least thirty days and opportunity for written comment by any person, promulgate regulations to implement the requirements of subsections (b) through (f) of this section. Any person may bring a proceeding in the United States District Court for the District of Columbia to require an agency to promulgate such regulations if such agency has not promulgated such regulations within the time period specified herein. Subject to any limitations of time provided by law, any person may bring a proceeding in the United States Court of Appeals for the District of Columbia to set aside agency regulations issued pursuant to this subsection that are not in accord with the requirements of subsections (b) through (f) of this section and to require the promulgation of regulations that are in accord with such subsections.

(h)(1) The district courts of the United States shall have jurisdiction to enforce the requirements of subsections (b) through (f) of this section by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought by any person against an agency prior to, or within sixty days after, the meeting out of which the violation of this section arises, except that if public announcement of such meeting is not initially provided by the agency in accordance with the requirements of this section, such action may be instituted pursuant to this section at any time prior to sixty days after any public announcement of such meeting. Such actions may be brought in the district court of the United States for the district in which the agency meeting is held or in which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions a defendant shall serve his answer within thirty days after the service of the complaint. The burden is on the defendant to sustain his action. In deciding such cases the court may examine in camera any portion of the transcript, electronic recording, or minutes of a meeting closed to the public, and may take such additional evidence as it deems necessary. The court, having due regard for orderly administration and the public interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such portion of the transcript, recording, or minutes of a meeting as is not authorized to be withheld under subsection (c) of this section.

(2) Any Federal court otherwise authorized by law to review agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this section authorizes any Federal court having jurisdiction solely on the basis of paragraph (1) to set aside, enjoin, or invalidate any agency action (other than an action to close a meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose.

(i) The court may assess against any party reasonable attorney fees and other litigation costs reasonably incurred by any other party who substantially prevails in any action brought in accordance with the provisions of subsection (g) or (h) of this section, except that costs may be assessed against the plaintiff only where the court finds that the suit was initiated by the plaintiff primarily for frivolous or dilatory purposes. In the case of assessment of costs against an agency, the costs may be assessed by the court against the United States.

(j) Each agency subject to the requirements of this section shall annually report to the Congress regarding the following:(1) The changes in the policies and procedures of the agency under this section that have occurred during the preceding 1-year period.

(2) A tabulation of the number of meetings held, the exemptions applied to close meetings, and the days of public notice provided to close meetings.

(3) A brief description of litigation or formal complaints concerning the implementation of this section by the agency.

(4) A brief explanation of any changes in law that have affected the responsibilities of the agency under this section.

(k) Nothing herein expands or limits the present rights of any person under section 552 of this title, except that the exemptions set forth in subsection (c) of this section shall govern in the case of any request made pursuant to section 552 to copy or inspect the transcripts, recordings, or minutes described in subsection (f) of this section. The requirements of chapter 33 of title 44, United States Code, shall not apply to the transcripts, recordings, and minutes described in subsection (f) of this section.

(l) This section does not constitute authority to withhold any information from Congress, and does not authorize the closing of any agency meeting or portion thereof required by any other provision of law to be open.

(m) Nothing in this section authorizes any agency to withhold from any individual any record, including transcripts, recordings, or minutes required by this section, which is otherwise accessible to such individual under section 552a of this title.

(Added Pub. L. 94–409, § 3(a), Sept. 13, 1976, 90 Stat. 1241; amended Pub. L. 104–66, title III, § 3002, Dec. 21, 1995, 109 Stat. 734.)

Editorial Notes

References in TextSection 552(e) of this title, referred to in subsec. (a)(1), was redesignated section 552(f) of this title by section 1802(b) of Pub. L. 99–570.
180 days after the date of enactment of this section, referred to in subsec. (g), means 180 days after the date of enactment of Pub. L. 94–409, which was approved Sept. 13, 1976.

Amendments1995—Subsec. (j). Pub. L. 104–66 amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: “Each agency subject to the requirements of this section shall annually report to Congress regarding its compliance with such requirements, including a tabulation of the total number of agency meetings open to the public, the total number of meetings closed to the public, the reasons for closing such meetings, and a description of any litigation brought against the agency under this section, including any costs assessed against the agency in such litigation (whether or not paid by the agency).”

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 94–409, § 6, Sept. 13, 1976, 90 Stat. 1248, provided that:
“(a) Except as provided in subsection (b) of this section, the provisions of this Act [see Short Title note set out below] shall take effect 180 days after the date of its enactment [Sept. 13, 1976].

“(b) Subsection (g) of section 552b of title 5, United States Code, as added by section 3(a) of this Act, shall take effect upon enactment [Sept. 13, 1976].”

Short Title of 1976 AmendmentPub. L. 94–409, § 1, Sept. 13, 1976, 90 Stat. 1241, provided: “That this Act [enacting this section, amending sections 551, 552, 556, and 557 of this title, section 10 of Pub. L. 92–463, set out in the Appendix to this title, and section 410 of Title 39, and enacting provisions set out as notes under this section] may be cited as the ‘Government in the Sunshine Act’.”

Termination of Reporting RequirementsFor termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which the report required by subsec. (j) of this section is listed on page 151), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title.

Declaration of Policy and Statement of PurposePub. L. 94–409, § 2, Sept. 13, 1976, 90 Stat. 1241, provided that: “It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government. It is the purpose of this Act [see Short Title note set out above] to provide the public with such information while protecting the rights of individuals and the ability of the Government to carry out its responsibilities.”

§ 553. Rule making(a) This section applies, according to the provisions thereof, except to the extent that there is involved—(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply—
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except—(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found and published with the rule.

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 383.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1003.June 11, 1946, ch. 324, § 4, 60 Stat. 238.

In subsection (a)(1), the words “or naval” are omitted as included in “military”.
In subsection (b), the word “when” is substituted for “in any situation in which”.
In subsection (c), the words “for oral presentation” are substituted for “to present the same orally in any manner”. The words “sections 556 and 557 of this title apply instead of this subsection” are substituted for “the requirements of sections 1006 and 1007 of this title shall apply in place of the provisions of this subsection”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Codification
Section 553 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2245 of Title 7, Agriculture.

Executive Documents

Executive Order No. 12044
Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as amended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R. 44249, which related to the improvement of Federal regulations, was revoked by Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.

§ 554. Adjudications(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved—(1) a matter subject to a subsequent trial of the law and the facts de novo in a court;

(2) the selection or tenure of an employee, except a 11 So in original. administrative law judge appointed under section 3105 of this title;

(3) proceedings in which decisions rest solely on inspections, tests, or elections;

(4) the conduct of military or foreign affairs functions;

(5) cases in which an agency is acting as an agent for a court; or

(6) the certification of worker representatives.

(b) Persons entitled to notice of an agency hearing shall be timely informed of—(1) the time, place, and nature of the hearing;

(2) the legal authority and jurisdiction under which the hearing is to be held; and

(3) the matters of fact and law asserted.

When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.

(c) The agency shall give all interested parties opportunity for—(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and

(2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.

(d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not—(1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or

(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.

An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. This subsection does not apply—
(A) in determining applications for initial licenses;

(B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or

(C) to the agency or a member or members of the body comprising the agency.

(e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 384; Pub. L. 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1004.June 11, 1946, ch. 324, § 5, 60 Stat. 239.

In subsection (a)(2), the word “employee” is substituted for “officer or employee of the United States” in view of the definition of “employee” in section 2105.
In subsection (a)(4), the word “naval” is omitted as included in “military”.
In subsection (a)(5), the word “or” is substituted for “and” since the exception is applicable if any one of the factors are involved.
In subsection (a)(6), the word “worker” is substituted for “employee”, since the latter is defined in section 2105 as meaning Federal employees.
In subsection (b), the word “When” is substituted for “In instances in which”.
In subsection (c)(2), the comma after the word “hearing” is omitted to correct an editorial error.
In subsection (d), the words “The employee” and “such an employee” are substituted in the first two sentences for “The same officers” and “such officers” in view of the definition of “employee” in section 2105. The word “officer” is omitted in the third and fourth sentences as included in “employee” as defined in section 2105. The prohibition in the third and fourth sentences is restated in positive form. In paragraph (C) of the last sentence, the words “in any manner” are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Codification
Section 554 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2246 of Title 7, Agriculture.

Amendments1978—Subsec. (a)(2). Pub. L. 95–251 substituted “administrative law judge” for “hearing examiner”.

§ 555. Ancillary matters(a) This section applies, according to the provisions thereof, except as otherwise provided by this subchapter.

(b) A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.

(c) Process, requirement of a report, inspection, or other investigative act or demand may not be issued, made, or enforced except as authorized by law. A person compelled to submit data or evidence is entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.

(d) Agency subpenas authorized by law shall be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought. On contest, the court shall sustain the subpena or similar process or demand to the extent that it is found to be in accordance with law. In a proceeding for enforcement, the court shall issue an order requiring the appearance of the witness or the production of the evidence or data within a reasonable time under penalty of punishment for contempt in case of contumacious failure to comply.

(e) Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 385.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1005.June 11, 1946, ch. 324, § 6, 60 Stat. 240.

In subsection (b), the words “is entitled” are substituted for “shall be accorded the right”. The word “officers” is omitted as included in “employees” in view of the definition of “employee” in section 2105. The words “With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time” are substituted for “with reasonable dispatch” and “except that due regard shall be had for the convenience and necessity of the parties or their representatives”. The prohibition in the last sentence is restated in positive form and the words “This subsection does not” are substituted for “Nothing herein shall be construed either to”.
In subsection (c), the words “in any manner or for any purpose” are omitted as surplusage.
In subsection (e), the word “brief” is substituted for “simple”. The words “of the grounds for denial” are substituted for “of procedural or other grounds” for clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Codification
Section 555 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2247 of Title 7, Agriculture.

§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision(a) This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.

(b) There shall preside at the taking of evidence—(1) the agency;

(2) one or more members of the body which comprises the agency; or

(3) one or more administrative law judges appointed under section 3105 of this title.

This subchapter does not supersede the conduct of specified classes of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.

(c) Subject to published rules of the agency and within its powers, employees presiding at hearings may—(1) administer oaths and affirmations;

(2) issue subpenas authorized by law;

(3) rule on offers of proof and receive relevant evidence;

(4) take depositions or have depositions taken when the ends of justice would be served;

(5) regulate the course of the hearing;

(6) hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter;

(7) inform the parties as to the availability of one or more alternative means of dispute resolution, and encourage use of such methods;

(8) require the attendance at any conference held pursuant to paragraph (6) of at least one representative of each party who has authority to negotiate concerning resolution of issues in controversy;

(9) dispose of procedural requests or similar matters;

(10) make or recommend decisions in accordance with section 557 of this title; and

(11) take other action authorized by agency rule consistent with this subchapter.

(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

(e) The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 386; Pub. L. 94–409, § 4(c), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 101–552, § 4(a), Nov. 15, 1990, 104 Stat. 2737.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1006.June 11, 1946, ch. 324, § 7, 60 Stat. 241.

In subsection (b), the words “hearing examiners” are substituted for “examiners” in paragraph (3) for clarity. The prohibition in the second sentence is restated in positive form and the words “This subchapter does not” are substituted for “but nothing in this chapter shall be deemed to”. The words “employee” and “employees” are substituted for “officer” and “officers” in view of the definition of “employee” in section 2105. The sentence “A presiding or participating employee may at any time disqualify himself.” is substituted for the words “Any such officer may at any time withdraw if he deems himself disqualified.”
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1990—Subsec. (c)(6). Pub. L. 101–552, § 4(a)(1), inserted before semicolon at end “or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter”.
Subsec. (c)(7) to (11). Pub. L. 101–552, § 4(a)(2), added pars. (7) and (8) and redesignated former pars. (7) to (9) as (9) to (11), respectively.
1978—Subsec. (b)(3). Pub. L. 95–251 substituted “administrative law judges” for “hearing examiners”.
1976—Subsec. (d). Pub. L. 94–409 inserted provisions relating to consideration by agency of a violation under section 557(d) of this title.

Statutory Notes and Related Subsidiaries
Effective Date of 1976 AmendmentAmendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

Executive Documents
Hearing Examiners Employed by Department of AgricultureFunctions vested by this subchapter in hearing examiners employed by Department of Agriculture not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, § 1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this title.

Hearing Examiners Employed by Department of CommerceFunctions vested by this subchapter in hearing examiners employed by Department of Commerce not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Commerce by 1950 Reorg. Plan No. 5, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the InteriorFunctions vested by this subchapter in hearing examiners employed by Department of the Interior not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Interior by 1950 Reorg. Plan No. 3, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix to this title.

Hearing Examiners Employed by Department of JusticeFunctions vested by this subchapter in hearing examiners employed by Department of Justice not included in functions of officers, agencies, and employees of that Department transferred to Attorney General by 1950 Reorg. Plan No. 2, § 1, eff. May 24, 1950, 15 F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.

Hearing Examiners Employed by Department of LaborFunctions vested by this subchapter in hearing examiners employed by Department of Labor not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Labor by 1950 Reorg. Plan No. 6, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the TreasuryFunctions vested by this subchapter in hearing examiners employed by Department of the Treasury not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Treasury by 1950 Reorg. Plan. No. 26, § 1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title.

§ 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record(a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title.

(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, except that in rule making or determining applications for initial licenses—(1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or

(2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires.

(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions—(1) proposed findings and conclusions; or

(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and

(3) supporting reasons for the exceptions or proposed findings or conclusions.

The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—
(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial thereof.

(d)(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;

(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;

(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:(i) all such written communications;

(ii) memoranda stating the substance of all such oral communications; and

(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph;

(D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and

(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.

(2) This subsection does not constitute authority to withhold information from Congress.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 387; Pub. L. 94–409, § 4(a), Sept. 13, 1976, 90 Stat. 1246.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1007.June 11, 1946, ch. 324, § 8, 60 Stat. 242.

In subsection (b), the word “employee” is substituted for “officer” and “officers” in view of the definition of “employee” in section 2105. The word “either” is added after the word “requires” in the first sentence to eliminate the need for parentheses. The words “the presiding employee or an employee qualified to preside at hearings under section 556 of this title” are substituted for “such officers” in the last sentence. The word “initial” is omitted before “decision”, the final word in the first sentence and the sixth word of the fourth sentence, to avoid confusion between the “initial decision” of the presiding employee and the “initial decision” of the agency.
In subsection (c), the word “employees” is substituted for “officers” in view of the definition of “employee” in section 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Codification
Section 557 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2207 of Title 7, Agriculture.
Section 557a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2208 of Title 7.

Amendments1976—Subsec. (d). Pub. L. 94–409 added subsec. (d).

Statutory Notes and Related Subsidiaries
Effective Date of 1976 AmendmentAmendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title.

§ 558. Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses(a) This section applies, according to the provisions thereof, to the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.

(c) When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and

(2) opportunity to demonstrate or achieve compliance with all lawful requirements.

When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1008.June 11, 1946, ch. 324, § 9, 60 Stat. 242.

In subsection (b), the prohibition is restated in positive form.
In subsection (c), the words “within a reasonable time” are substituted for “with reasonable dispatch”. The last two sentences are restated for conciseness and clarity and to restate the prohibition in positive form.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Codification
Section 558 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2209 of Title 7, Agriculture.

§ 559. Effect on other laws; effect of subsequent statute
This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5372, and 7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, do not limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, requirements or privileges relating to evidence or procedure apply equally to agencies and persons. Each agency is granted the authority necessary to comply with the requirements of this subchapter through the issuance of rules or otherwise. Subsequent statute may not be held to supersede or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of this title, or the provisions of section 5335(a)(B) of this title that relate to administrative law judges, except to the extent that it does so expressly.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388; Pub. L. 90–623, § 1(1), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title VIII, § 801(a)(3)(B)(iii), Oct. 13, 1978, 92 Stat. 1221.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1011.June 11, 1946, ch. 324, § 12, 60 Stat. 244.

In the first and last sentences, the words “This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5362, and 7521, and the provisions of section 5335(a)(B) of this title that relate to hearing examiners” are substituted for “this Act” to reflect the codification of the Act in this title. The words “to diminish the constitutional rights of any person or” are omitted as surplusage as there is nothing in the Act that can reasonably be construed to diminish those rights and because a statute may not operate in derogation of the Constitution.
The third sentence of former section 1011 is omitted as covered by technical section 7. The sixth sentence of former section 1011 is omitted as executed.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “5372” for “5362” wherever appearing.
Pub. L. 95–251 substituted “administrative law judges” for “hearing examiners” wherever appearing.
1968—Pub. L. 90–623 inserted “of this title” after “7521” wherever appearing.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment by Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after the 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.

Effective Date of 1968 AmendmentAmendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

SUBCHAPTER III—NEGOTIATED RULEMAKING PROCEDURE

Editorial Notes
Prior ProvisionsA prior subchapter III (§ 571 et seq.) was redesignated subchapter V (§ 591 et seq.) of this chapter.

Amendments1992—Pub. L. 102–354, § 3(a)(1), Aug. 26, 1992, 106 Stat. 944, redesignated subchapter IV of this chapter relating to negotiated rulemaking procedure as this subchapter.

§ 561. Purpose
The purpose of this subchapter is to establish a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title, to encourage agencies to use the process when it enhances the informal rulemaking process. Nothing in this subchapter should be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4970, § 581; renumbered § 561, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 581 of this title as this section.

Statutory Notes and Related Subsidiaries
Effective Date of Repeal; Savings ProvisionPub. L. 101–648, § 5, Nov. 29, 1990, 104 Stat. 4976, as amended by Pub. L. 102–354, § 5(a)(2), Aug. 26, 1992, 106 Stat. 945, which provided that subchapter III of chapter 5 of title 5 and the table of sections corresponding to such subchapter, were repealed, effective 6 years after Nov. 29, 1990, except for then pending proceedings, was repealed by Pub. L. 104–320, § 11(a), Oct. 19, 1996, 110 Stat. 3873.

Short Title of 1992 AmendmentPub. L. 102–354, § 1, Aug. 26, 1992, 106 Stat. 944, provided that: “This Act [amending sections 565, 568, 569, 571, 577, 580, 581, and 593 of this title, section 10 of Title 9, Arbitration, and section 173 of Title 29, Labor, renumbering sections 571 to 576, 581 to 590, and 581 to 593 as 591 to 596, 561 to 570, and 571 to 583, respectively, of this title, and amending provisions set out as notes under this section and section 571 of this title] may be cited as the ‘Administrative Procedure Technical Amendments Act of 1991’.”

Short Title of 1990 AmendmentPub. L. 101–648, § 1, Nov. 29, 1990, 104 Stat. 4969, provided that: “This Act [enacting this subchapter] may be cited as the ‘Negotiated Rulemaking Act of 1990’.”

Congressional FindingsPub. L. 101–648, § 2, Nov. 29, 1990, 104 Stat. 4969, provided that:
“The Congress makes the following findings:
“(1) Government regulation has increased substantially since the enactment of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this title].

“(2) Agencies currently use rulemaking procedures that may discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions and to engage in expensive and time-consuming litigation over agency rules.

“(3) Adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.

“(4) Negotiated rulemaking, in which the parties who will be significantly affected by a rule participate in the development of the rule, can provide significant advantages over adversarial rulemaking.

“(5) Negotiated rulemaking can increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement or challenge such rules in court. It may also shorten the amount of time needed to issue final rules.

“(6) Agencies have the authority to establish negotiated rulemaking committees under the laws establishing such agencies and their activities and under the Federal Advisory Committee Act (5 U.S.C. App.). Several agencies have successfully used negotiated rulemaking. The process has not been widely used by other agencies, however, in part because such agencies are unfamiliar with the process or uncertain as to the authority for such rulemaking.”

Authorization of AppropriationsPub. L. 101–648, § 4, Nov. 29, 1990, 104 Stat. 4976, as amended by Pub. L. 102–354, § 5(a)(1), Aug. 26, 1992, 106 Stat. 945, authorized additional appropriations to Administrative Conference of the United States to carry out Pub. L. 101–648 in fiscal years 1991, 1992, and 1993.

§ 562. Definitions
For the purposes of this subchapter, the term—(1) “agency” has the same meaning as in section 551(1) of this title;

(2) “consensus” means unanimous concurrence among the interests represented on a negotiated rulemaking committee established under this subchapter, unless such committee—(A) agrees to define such term to mean a general but not unanimous concurrence; or

(B) agrees upon another specified definition;

(3) “convener” means a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate in a particular rulemaking;

(4) “facilitator” means a person who impartially aids in the discussions and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule;

(5) “interest” means, with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner;

(6) “negotiated rulemaking” means rulemaking through the use of a negotiated rulemaking committee;

(7) “negotiated rulemaking committee” or “committee” means an advisory committee established by an agency in accordance with this subchapter and the Federal Advisory Committee Act to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule;

(8) “party” has the same meaning as in section 551(3) of this title;

(9) “person” has the same meaning as in section 551(2) of this title;

(10) “rule” has the same meaning as in section 551(4) of this title; and

(11) “rulemaking” means “rule making” as that term is defined in section 551(5) of this title.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4970, § 582; renumbered § 562, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

References in TextThe Federal Advisory Committee Act, referred to in par. (7), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to this title.

Amendments1992—Pub. L. 102–354 renumbered section 582 of this title as this section.

§ 563. Determination of need for negotiated rulemaking committee(a) Determination of Need by the Agency.—An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule, if the head of the agency determines that the use of the negotiated rulemaking procedure is in the public interest. In making such a determination, the head of the agency shall consider whether—(1) there is a need for a rule;

(2) there are a limited number of identifiable interests that will be significantly affected by the rule;

(3) there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who—(A) can adequately represent the interests identified under paragraph (2); and

(B) are willing to negotiate in good faith to reach a consensus on the proposed rule;

(4) there is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time;

(5) the negotiated rulemaking procedure will not unreasonably delay the notice of proposed rulemaking and the issuance of the final rule;

(6) the agency has adequate resources and is willing to commit such resources, including technical assistance, to the committee; and

(7) the agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee with respect to the proposed rule as the basis for the rule proposed by the agency for notice and comment.

(b) Use of Conveners.—(1) Purposes of conveners.—An agency may use the services of a convener to assist the agency in—(A) identifying persons who will be significantly affected by a proposed rule, including residents of rural areas; and

(B) conducting discussions with such persons to identify the issues of concern to such persons, and to ascertain whether the establishment of a negotiated rulemaking committee is feasible and appropriate in the particular rulemaking.

(2) Duties of conveners.—The convener shall report findings and may make recommendations to the agency. Upon request of the agency, the convener shall ascertain the names of persons who are willing and qualified to represent interests that will be significantly affected by the proposed rule, including residents of rural areas. The report and any recommendations of the convener shall be made available to the public upon request.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4970, § 583; renumbered § 563, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 583 of this title as this section.

Statutory Notes and Related Subsidiaries
Negotiated Rulemaking CommitteesPub. L. 104–320, § 11(e), Oct. 19, 1996, 110 Stat. 3874, provided that:
“The Director of the Office of Management and Budget shall—
“(1) within 180 days of the date of the enactment of this Act [Oct. 19, 1996], take appropriate action to expedite the establishment of negotiated rulemaking committees and committees established to resolve disputes under the Administrative Dispute Resolution Act [Pub. L. 101–552, see Short Title note set out under section 571 of this title], including, with respect to negotiated rulemaking committees, eliminating any redundant administrative requirements related to filing a committee charter under section 9 of the Federal Advisory Committee Act (5 U.S.C. App.) and providing public notice of such committee under section 564 of title 5, United States Code; and

“(2) within one year of the date of the enactment of this Act, submit recommendations to Congress for any necessary legislative changes.”

§ 564. Publication of notice; applications for membership on committees(a) Publication of Notice.—If, after considering the report of a convener or conducting its own assessment, an agency decides to establish a negotiated rulemaking committee, the agency shall publish in the Federal Register and, as appropriate, in trade or other specialized publications, a notice which shall include—(1) an announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule;

(2) a description of the subject and scope of the rule to be developed, and the issues to be considered;

(3) a list of the interests which are likely to be significantly affected by the rule;

(4) a list of the persons proposed to represent such interests and the person or persons proposed to represent the agency;

(5) a proposed agenda and schedule for completing the work of the committee, including a target date for publication by the agency of a proposed rule for notice and comment;

(6) a description of administrative support for the committee to be provided by the agency, including technical assistance;

(7) a solicitation for comments on the proposal to establish the committee, and the proposed membership of the negotiated rulemaking committee; and

(8) an explanation of how a person may apply or nominate another person for membership on the committee, as provided under subsection (b).

(b) Applications for Membership or 11 So in original. Probably should be “on”. Committee.—Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person specified in a notice under subsection (a)(4) may apply for, or nominate another person for, membership on the negotiated rulemaking committee to represent such interests with respect to the proposed rule. Each application or nomination shall include—(1) the name of the applicant or nominee and a description of the interests such person shall represent;

(2) evidence that the applicant or nominee is authorized to represent parties related to the interests the person proposes to represent;

(3) a written commitment that the applicant or nominee shall actively participate in good faith in the development of the rule under consideration; and

(4) the reasons that the persons specified in the notice under subsection (a)(4) do not adequately represent the interests of the person submitting the application or nomination.

(c) Period for Submission of Comments and Applications.—The agency shall provide for a period of at least 30 calendar days for the submission of comments and applications under this section.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4971, § 584; renumbered § 564, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 584 of this title as this section.

§ 565. Establishment of committee(a) Establishment.—(1) Determination to establish committee.—If after considering comments and applications submitted under section 564, the agency determines that a negotiated rulemaking committee can adequately represent the interests that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking committee. In establishing and administering such a committee, the agency shall comply with the Federal Advisory Committee Act with respect to such committee, except as otherwise provided in this subchapter.

(2) Determination not to establish committee.—If after considering such comments and applications, the agency decides not to establish a negotiated rulemaking committee, the agency shall promptly publish notice of such decision and the reasons therefor in the Federal Register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for membership on the negotiating 11 So in original. Probably should be “negotiated”. rulemaking committee to represent such interests with respect to the proposed rule.

(b) Membership.—The agency shall limit membership on a negotiated rulemaking committee to 25 members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership. Each committee shall include at least one person representing the agency.

(c) Administrative Support.—The agency shall provide appropriate administrative support to the negotiated rulemaking committee, including technical assistance.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4972, § 585; renumbered § 565 and amended Pub. L. 102–354, § 3(a)(2), (3), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

References in TextThe Federal Advisory Committee Act, referred to in subsec. (a)(1), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to this title.

Amendments1992—Pub. L. 102–354, § 3(a)(2), renumbered section 585 of this title as this section.
Subsec. (a)(1). Pub. L. 102–354, § 3(a)(3), substituted “section 564” for “section 584”.

§ 566. Conduct of committee activity(a) Duties of Committee.—Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule.

(b) Representatives of Agency on Committee.—The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.

(c) Selecting Facilitator.—Notwithstanding section 10(e) of the Federal Advisory Committee Act, an agency may nominate either a person from the Federal Government or a person from outside the Federal Government to serve as a facilitator for the negotiations of the committee, subject to the approval of the committee by consensus. If the committee does not approve the nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or otherwise chair the committee.

(d) Duties of Facilitator.—A facilitator approved or selected by a negotiated rulemaking committee shall—(1) chair the meetings of the committee in an impartial manner;

(2) impartially assist the members of the committee in conducting discussions and negotiations; and

(3) manage the keeping of minutes and records as required under section 10(b) and (c) of the Federal Advisory Committee Act, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to section 552 of this title.

(e) Committee Procedures.—A negotiated rulemaking committee established under this subchapter may adopt procedures for the operation of the committee. No provision of section 553 of this title shall apply to the procedures of a negotiated rulemaking committee.

(f) Report of Committee.—If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, recommendations, or materials.

(g) Records of Committee.—In addition to the report required by subsection (f), a committee shall submit to the agency the records required under section 10(b) and (c) of the Federal Advisory Committee Act.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4973, § 586; renumbered § 566, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

References in TextSection 10 of the Federal Advisory Committee Act, referred to in subsecs. (c), (d)(3), and (g), is section 10 of Pub. L. 92–463, which is set out in the Appendix to this title.

Amendments1992—Pub. L. 102–354 renumbered section 586 of this title as this section.

§ 567. Termination of committee
A negotiated rulemaking committee shall terminate upon promulgation of the final rule under consideration, unless the committee’s charter contains an earlier termination date or the agency, after consulting the committee, or the committee itself specifies an earlier termination date.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4974, § 587; renumbered § 567, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 587 of this title as this section.

§ 568. Services, facilities, and payment of committee member expenses(a) Services of Conveners and Facilitators.—(1) In general.—An agency may employ or enter into contracts for the services of an individual or organization to serve as a convener or facilitator for a negotiated rulemaking committee under this subchapter, or may use the services of a Government employee to act as a convener or a facilitator for such a committee.

(2) Determination of conflicting interests.—An agency shall determine whether a person under consideration to serve as convener or facilitator of a committee under paragraph (1) has any financial or other interest that would preclude such person from serving in an impartial and independent manner.

(b) Services and Facilities of Other Entities.—For purposes of this subchapter, an agency may use the services and facilities of other Federal agencies and public and private agencies and instrumentalities with the consent of such agencies and instrumentalities, and with or without reimbursement to such agencies and instrumentalities, and may accept voluntary and uncompensated services without regard to the provisions of section 1342 of title 31. The Federal Mediation and Conciliation Service may provide services and facilities, with or without reimbursement, to assist agencies under this subchapter, including furnishing conveners, facilitators, and training in negotiated rulemaking.

(c) Expenses of Committee Members.—Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation in such committee, except that an agency may, in accordance with section 7(d) of the Federal Advisory Committee Act, pay for a member’s reasonable travel and per diem expenses, expenses to obtain technical assistance, and a reasonable rate of compensation, if—(1) such member certifies a lack of adequate financial resources to participate in the committee; and

(2) the agency determines that such member’s participation in the committee is necessary to assure an adequate representation of the member’s interest.

(d) Status of Member as Federal Employee.—A member’s receipt of funds under this section or section 569 shall not conclusively determine for purposes of sections 202 through 209 of title 18 whether that member is an employee of the United States Government.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4974, § 588; renumbered § 568 and amended Pub. L. 102–354, § 3(a)(2), (4), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes

References in TextSection 7(d) of the Federal Advisory Committee Act, referred to in subsec. (c), is section 7(d) of Pub. L. 92–463, which is set out in the Appendix to this title.

Amendments1992—Pub. L. 102–354, § 3(a)(2), renumbered section 588 of this title as this section.
Subsec. (d). Pub. L. 102–354, § 3(a)(4), substituted “section 569” for “section 589”.

§ 569. Encouraging negotiated rulemaking(a) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering, planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and assistance.

(b) To carry out the purposes of this subchapter, an agency planning or conducting a negotiated rulemaking may accept, hold, administer, and utilize gifts, devises, and bequests of property, both real and personal if that agency’s acceptance and use of such gifts, devises, or bequests do not create a conflict of interest. Gifts and bequests of money and proceeds from sales of other property received as gifts, devises, or bequests shall be deposited in the Treasury and shall be disbursed upon the order of the head of such agency. Property accepted pursuant to this section, and the proceeds thereof, shall be used as nearly as possible in accordance with the terms of the gifts, devises, or bequests.

(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4975, § 589; renumbered § 569 and amended Pub. L. 102–354, § 3(a)(2), (5), Aug. 26, 1992, 106 Stat. 944; Pub. L. 104–320, § 11(b)(1), Oct. 19, 1996, 110 Stat. 3873.)

Editorial Notes
Amendments1996—Pub. L. 104–320 in section catchline substituted “Encouraging negotiated rulemaking” for “Role of the Administrative Conference of the United States and other entities”, and in text added subsecs. (a) and (b) and struck out former subsecs. (a) to (g) which related to: in subsec. (a), consultation by agencies; in subsec. (b), roster of potential conveners and facilitators; in subsec. (c), procedures to obtain conveners and facilitators; in subsec. (d), compilation of data on negotiated rulemaking and report to Congress; in subsec. (e), training in negotiated rulemaking; in subsec. (f), payment of expenses of agencies; and in subsec. (g), use of funds of the conference.
1992—Pub. L. 102–354, § 3(a)(2), renumbered section 589 of this title as this section.
Subsec. (d)(2). Pub. L. 102–354, § 3(a)(5)(A), substituted “section 566” for “section 586”.
Subsec. (f)(2). Pub. L. 102–354, § 3(a)(5)(B), substituted “section 568(c)” for “section 588(c)”.
Subsec. (g). Pub. L. 102–354, § 3(a)(5)(C), substituted “section 595(c)(12)” for “section 575(c)(12)”.

§ 570. Judicial review
Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A rule which is the product of negotiated rulemaking and is subject to judicial review shall not be accorded any greater deference by a court than a rule which is the product of other rulemaking procedures.
(Added Pub. L. 101–648, § 3(a), Nov. 29, 1990, 104 Stat. 4976, § 590; renumbered § 570, Pub. L. 102–354, § 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 590 of this title as this section.

§ 570a. Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.
(Added Pub. L. 104–320, § 11(d)(1), Oct. 19, 1996, 110 Stat. 3873.)

SUBCHAPTER IV—ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS

Editorial Notes
Codification
Another subchapter IV (§ 581 et seq.) relating to negotiated rulemaking procedure was redesignated subchapter III (§ 561 et seq.) of this chapter.

Amendments1992—Pub. L. 102–354, § 3(b)(1), Aug. 26, 1992, 106 Stat. 944, transferred this subchapter so as to appear immediately after subchapter III of this chapter.

§ 571. Definitions
For the purposes of this subchapter, the term—(1) “agency” has the same meaning as in section 551(1) of this title;

(2) “administrative program” includes a Federal function which involves protection of the public interest and the determination of rights, privileges, and obligations of private persons through rule making, adjudication, licensing, or investigation, as those terms are used in subchapter II of this chapter;

(3) “alternative means of dispute resolution” means any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof;

(4) “award” means any decision by an arbitrator resolving the issues in controversy;

(5) “dispute resolution communication” means any oral or written communication prepared for the purposes of a dispute resolution proceeding, including any memoranda, notes or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral award reached as a result of a dispute resolution proceeding, is not a dispute resolution communication;

(6) “dispute resolution proceeding” means any process in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a neutral is appointed and specified parties participate;

(7) “in confidence” means, with respect to information, that the information is provided—(A) with the expressed intent of the source that it not be disclosed; or

(B) under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed;

(8) “issue in controversy” means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement—(A) between an agency and persons who would be substantially affected by the decision; or

(B) between persons who would be substantially affected by the decision;

(9) “neutral” means an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy;

(10) “party” means—(A) for a proceeding with named parties, the same as in section 551(3) of this title; and

(B) for a proceeding without named parties, a person who will be significantly affected by the decision in the proceeding and who participates in the proceeding;

(11) “person” has the same meaning as in section 551(2) of this title; and

(12) “roster” means a list of persons qualified to provide services as neutrals.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2738, § 581; renumbered § 571 and amended Pub. L. 102–354, §§ 3(b)(2), 5(b)(1), (2), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L. 104–320, § 2, Oct. 19, 1996, 110 Stat. 3870.)

Editorial Notes
Codification
Section 571 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2256 of Title 7, Agriculture.

Prior ProvisionsA prior section 571 was renumbered section 591 of this title.

Amendments1996—Par. (3). Pub. L. 104–320, § 2(1), struck out “, in lieu of an adjudication as defined in section 551(7) of this title,” after “any procedure that is used”, struck out “settlement negotiations,” after “but not limited to,” and substituted “arbitration, and use of ombuds” for “and arbitration”.
Par. (8). Pub. L. 104–320, § 2(2), substituted “decision;” for “decision,” at end of subpar. (B), and struck out closing provisions which read as follows: “except that such term shall not include any matter specified under section 2302 or 7121(c) of this title;”.
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 581 of this title as this section.
Par. (3). Pub. L. 102–354, § 5(b)(1), inserted comma after “including”.
Par. (8). Pub. L. 102–354, § 5(b)(2), amended par. (8) generally. Prior to amendment, par. (8) read as follows: “ ‘issue in controversy’ means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement between the agency and persons who would be substantially affected by the decision but shall not extend to matters specified under the provisions of sections 2302 and 7121(c) of title 5;”.

Statutory Notes and Related Subsidiaries
Termination Date; Savings ProvisionPub. L. 101–552, § 11, Nov. 15, 1990, 104 Stat. 2747, as amended by Pub. L. 104–106, div. D, title XLIII, § 4321(i)(5), Feb. 10, 1996, 110 Stat. 676, which provided that the authority of agencies to use dispute resolution proceedings under this Act [see Short Title note below] was to terminate on Oct. 1, 1995, except with respect to pending proceedings, was repealed by Pub. L. 104–320, § 9, Oct. 19, 1996, 110 Stat. 3872.

Short Title of 1996 AmendmentPub. L. 104–320, § 1, Oct. 19, 1996, 110 Stat. 3870, provided that: “This Act [enacting sections 570a and 584 of this title, amending this section, sections 569, 573 to 575, 580, 581, and 583 of this title, section 2304 of Title 10, Armed Forces, section 1491 of Title 28, Crimes and Criminal Procedure, section 173 of Title 29, Labor, section 3556 of Title 31, Money and Finance, and sections 253 and 605 of Title 41, Public Contracts, repealing section 582 of this title, enacting provisions set out as notes under section 563 of this title, section 1491 of Title 28, and section 3556 of Title 31, amending provisions set out as notes under this section, and repealing provisions set out as notes under this section and section 561 of this title] may be cited as the ‘Administrative Dispute Resolution Act of 1996’.”

Short TitlePub. L. 101–552, § 1, Nov. 15, 1990, 104 Stat. 2736, provided that: “This Act [enacting this subchapter, amending section 556 of this title, section 10 of Title 9, Arbitration, section 2672 of Title 28, Judiciary and Judicial Procedure, section 173 of Title 29, Labor, section 3711 of Title 31, Money and Finance, and sections 605 and 607 of Title 41, Public Contracts, and enacting provisions set out as notes under this section] may be cited as the ‘Administrative Dispute Resolution Act’.”

Congressional FindingsPub. L. 101–552, § 2, Nov. 15, 1990, 104 Stat. 2736, provided that:
“The Congress finds that—
“(1) administrative procedure, as embodied in chapter 5 of title 5, United States Code, and other statutes, is intended to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative to litigation in the Federal courts;

“(2) administrative proceedings have become increasingly formal, costly, and lengthy resulting in unnecessary expenditures of time and in a decreased likelihood of achieving consensual resolution of disputes;

“(3) alternative means of dispute resolution have been used in the private sector for many years and, in appropriate circumstances, have yielded decisions that are faster, less expensive, and less contentious;

“(4) such alternative means can lead to more creative, efficient, and sensible outcomes;

“(5) such alternative means may be used advantageously in a wide variety of administrative programs;

“(6) explicit authorization of the use of well-tested dispute resolution techniques will eliminate ambiguity of agency authority under existing law;

“(7) Federal agencies may not only receive the benefit of techniques that were developed in the private sector, but may also take the lead in the further development and refinement of such techniques; and

“(8) the availability of a wide range of dispute resolution procedures, and an increased understanding of the most effective use of such procedures, will enhance the operation of the Government and better serve the public.”

Promotion of Alternative Means of Dispute ResolutionPub. L. 101–552, § 3, Nov. 15, 1990, 104 Stat. 2736, as amended by Pub. L. 104–320, § 4(a), Oct. 19, 1996, 110 Stat. 3871, provided that:
“(a) Promulgation of Agency Policy.—Each agency shall adopt a policy that addresses the use of alternative means of dispute resolution and case management. In developing such a policy, each agency shall—“(1) consult with the agency designated by, or the interagency committee designated or established by, the President under section 573 of title 5, United States Code, to facilitate and encourage agency use of alternative dispute resolution under subchapter IV of chapter 5 of such title; and

“(2) examine alternative means of resolving disputes in connection with—“(A) formal and informal adjudications;

“(B) rulemakings;

“(C) enforcement actions;

“(D) issuing and revoking licenses or permits;

“(E) contract administration;

“(F) litigation brought by or against the agency; and

“(G) other agency actions.

“(b) Dispute Resolution Specialists.—The head of each agency shall designate a senior official to be the dispute resolution specialist of the agency. Such official shall be responsible for the implementation of—“(1) the provisions of this Act [see Short Title note above] and the amendments made by this Act; and

“(2) the agency policy developed under subsection (a).

“(c) Training.—Each agency shall provide for training on a regular basis for the dispute resolution specialist of the agency and other employees involved in implementing the policy of the agency developed under subsection (a). Such training should encompass the theory and practice of negotiation, mediation, arbitration, or related techniques. The dispute resolution specialist shall periodically recommend to the agency head agency employees who would benefit from similar training.

“(d) Procedures for Grants and Contracts.—“(1) Each agency shall review each of its standard agreements for contracts, grants, and other assistance and shall determine whether to amend any such standard agreements to authorize and encourage the use of alternative means of dispute resolution.

“(2)(A) Within 1 year after the date of the enactment of this Act [Nov. 15, 1990], the Federal Acquisition Regulation shall be amended, as necessary, to carry out this Act [see Short Title note above] and the amendments made by this Act.

“(B) For purposes of this section, the term ‘Federal Acquisition Regulation’ means the single system of Government-wide procurement regulation referred to in section 6(a) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405(a)) [now 41 U.S.C. 1121(a) to (c)(1)].”

Use of NonattorneysPub. L. 101–552, § 9, Nov. 15, 1990, 104 Stat. 2747, provided that:
“(a) Representation of Parties.—Each agency, in developing a policy on the use of alternative means of dispute resolution under this Act [see Short Title note above], shall develop a policy with regard to the representation by persons other than attorneys of parties in alternative dispute resolution proceedings and shall identify any of its administrative programs with numerous claims or disputes before the agency and determine—“(1) the extent to which individuals are represented or assisted by attorneys or by persons who are not attorneys; and

“(2) whether the subject areas of the applicable proceedings or the procedures are so complex or specialized that only attorneys may adequately provide such representation or assistance.

“(b) Representation and Assistance by Nonattorneys.—A person who is not an attorney may provide representation or assistance to any individual in a claim or dispute with an agency, if—“(1) such claim or dispute concerns an administrative program identified under subsection (a);

“(2) such agency determines that the proceeding or procedure does not necessitate representation or assistance by an attorney under subsection (a)(2); and

“(3) such person meets any requirement of the agency to provide representation or assistance in such a claim or dispute.

“(c) Disqualification of Representation or Assistance.—Any agency that adopts regulations under subchapter IV of chapter 5 of title 5, United States Code, to permit representation or assistance by persons who are not attorneys shall review the rules of practice before such agency to—“(1) ensure that any rules pertaining to disqualification of attorneys from practicing before the agency shall also apply, as appropriate, to other persons who provide representation or assistance; and

“(2) establish effective agency procedures for enforcing such rules of practice and for receiving complaints from affected persons.”

Definitions
Pub. L. 101–552, § 10, Nov. 15, 1990, 104 Stat. 2747, as amended by Pub. L. 102–354, § 5(b)(6), Aug. 26, 1992, 106 Stat. 946, provided that: “As used in this Act [see Short Title note above], the terms ‘agency’, ‘administrative program’, and ‘alternative means of dispute resolution’ have the meanings given such terms in section 571 of title 5, United States Code (enacted as section 581 of title 5, United States Code, by section 4(b) of this Act, and redesignated as section 571 of such title by section 3(b) of the Administrative Procedure Technical Amendments Act of 1991 [Pub. L. 102–354]).”

§ 572. General authority(a) An agency may use a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding.

(b) An agency shall consider not using a dispute resolution proceeding if—(1) a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;

(2) the matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the agency;

(3) maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;

(4) the matter significantly affects persons or organizations who are not parties to the proceeding;

(5) a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; and

(6) the agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the agency’s fulfilling that requirement.

(c) Alternative means of dispute resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2739, § 582; renumbered § 572, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Codification
Section 572 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2257 of Title 7, Agriculture.

Prior ProvisionsA prior section 572 was renumbered section 592 of this title.

Amendments1992—Pub. L. 102–354 renumbered section 582 of this title as this section.

§ 573. Neutrals(a) A neutral may be a permanent or temporary officer or employee of the Federal Government or any other individual who is acceptable to the parties to a dispute resolution proceeding. A neutral shall have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral may serve.

(b) A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the parties.

(c) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of dispute resolution under this subchapter. Such agency or interagency committee, in consultation with other appropriate Federal agencies and professional organizations experienced in matters concerning dispute resolution, shall—(1) encourage and facilitate agency use of alternative means of dispute resolution; and

(2) develop procedures that permit agencies to obtain the services of neutrals on an expedited basis.

(d) An agency may use the services of one or more employees of other agencies to serve as neutrals in dispute resolution proceedings. The agencies may enter into an interagency agreement that provides for the reimbursement by the user agency or the parties of the full or partial cost of the services of such an employee.

(e) Any agency may enter into a contract with any person for services as a neutral, or for training in connection with alternative means of dispute resolution. The parties in a dispute resolution proceeding shall agree on compensation for the neutral that is fair and reasonable to the Government.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2739, § 583; renumbered § 573, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 7(b), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes
Codification
Section 573 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2258 of Title 7, Agriculture.

Prior ProvisionsA prior section 573 was renumbered section 593 of this title.

Amendments1996—Subsec. (c). Pub. L. 104–320, § 7(b)(1), added subsec. (c) and struck out former subsec. (c) which related to power of Administrative Conference of the United States to establish and utilize standards for neutrals and to enter into contracts for services of neutrals.
Subsec. (e). Pub. L. 104–320, § 7(b)(2), struck out “on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual” after “contract with any person”.
1992—Pub. L. 102–354 renumbered section 583 of this title as this section.

§ 574. Confidentiality(a) Except as provided in subsections (d) and (e), a neutral in a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or any communication provided in confidence to the neutral, unless—(1) all parties to the dispute resolution proceeding and the neutral consent in writing, and, if the dispute resolution communication was provided by a nonparty participant, that participant also consents in writing;

(2) the dispute resolution communication has already been made public;

(3) the dispute resolution communication is required by statute to be made public, but a neutral should make such communication public only if no other person is reasonably available to disclose the communication; or

(4) a court determines that such testimony or disclosure is necessary to—(A) prevent a manifest injustice;

(B) help establish a violation of law; or

(C) prevent harm to the public health or safety,

of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential.

(b) A party to a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless—(1) the communication was prepared by the party seeking disclosure;

(2) all parties to the dispute resolution proceeding consent in writing;

(3) the dispute resolution communication has already been made public;

(4) the dispute resolution communication is required by statute to be made public;

(5) a court determines that such testimony or disclosure is necessary to—(A) prevent a manifest injustice;

(B) help establish a violation of law; or

(C) prevent harm to the public health and safety,

of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential;

(6) the dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that resulted from the dispute resolution proceeding or to the enforcement of such an agreement or award; or

(7) except for dispute resolution communications generated by the neutral, the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding.

(c) Any dispute resolution communication that is disclosed in violation of subsection (a) or (b), shall not be admissible in any proceeding relating to the issues in controversy with respect to which the communication was made.

(d)(1) The parties may agree to alternative confidential procedures for disclosures by a neutral. Upon such agreement the parties shall inform the neutral before the commencement of the dispute resolution proceeding of any modifications to the provisions of subsection (a) that will govern the confidentiality of the dispute resolution proceeding. If the parties do not so inform the neutral, subsection (a) shall apply.

(2) To qualify for the exemption established under subsection (j), an alternative confidential procedure under this subsection may not provide for less disclosure than the confidential procedures otherwise provided under this section.

(e) If a demand for disclosure, by way of discovery request or other legal process, is made upon a neutral regarding a dispute resolution communication, the neutral shall make reasonable efforts to notify the parties and any affected nonparty participants of the demand. Any party or affected nonparty participant who receives such notice and within 15 calendar days does not offer to defend a refusal of the neutral to disclose the requested information shall have waived any objection to such disclosure.

(f) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dispute resolution proceeding.

(g) Subsections (a) and (b) shall have no effect on the information and data that are necessary to document an agreement reached or order issued pursuant to a dispute resolution proceeding.

(h) Subsections (a) and (b) shall not prevent the gathering of information for research or educational purposes, in cooperation with other agencies, governmental entities, or dispute resolution programs, so long as the parties and the specific issues in controversy are not identifiable.

(i) Subsections (a) and (b) shall not prevent use of a dispute resolution communication to resolve a dispute between the neutral in a dispute resolution proceeding and a party to or participant in such proceeding, so long as such dispute resolution communication is disclosed only to the extent necessary to resolve such dispute.

(j) A dispute resolution communication which is between a neutral and a party and which may not be disclosed under this section shall also be exempt from disclosure under section 552(b)(3).

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2740, § 584; renumbered § 574, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 3, Oct. 19, 1996, 110 Stat. 3870.)

Editorial Notes
Codification
Section 574 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2255 of Title 7, Agriculture.
Section 574a of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2226 of Title 7.

Prior ProvisionsA prior section 574 was renumbered section 594 of this title.

Amendments1996—Subsecs. (a), (b). Pub. L. 104–320, § 3(a), in introductory provisions struck out “any information concerning” after “be required to disclose”.
Subsec. (b)(7). Pub. L. 104–320, § 3(b), amended par. (7) generally. Prior to amendment, par. (7) read as follows: “the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding”.
Subsec. (d). Pub. L. 104–320, § 3(c), designated existing provisions as par. (1) and added par. (2).
Subsec. (j). Pub. L. 104–320, § 3(d), amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: “This section shall not be considered a statute specifically exempting disclosure under section 552(b)(3) of this title.”
1992—Pub. L. 102–354 renumbered section 584 of this title as this section.

§ 575. Authorization of arbitration(a)(1) Arbitration may be used as an alternative means of dispute resolution whenever all parties consent. Consent may be obtained either before or after an issue in controversy has arisen. A party may agree to—(A) submit only certain issues in controversy to arbitration; or

(B) arbitration on the condition that the award must be within a range of possible outcomes.

(2) The arbitration agreement that sets forth the subject matter submitted to the arbitrator shall be in writing. Each such arbitration agreement shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes.

(3) An agency may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit.

(b) An officer or employee of an agency shall not offer to use arbitration for the resolution of issues in controversy unless such officer or employee—(1) would otherwise have authority to enter into a settlement concerning the matter; or

(2) is otherwise specifically authorized by the agency to consent to the use of arbitration.

(c) Prior to using binding arbitration under this subchapter, the head of an agency, in consultation with the Attorney General and after taking into account the factors in section 572(b), shall issue guidance on the appropriate use of binding arbitration and when an officer or employee of the agency has authority to settle an issue in controversy through binding arbitration.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 585; renumbered § 575, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 8(c), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes
Codification
Section 575 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2259 of Title 7, Agriculture.

Prior ProvisionsA prior section 575 was renumbered section 595 of this title.

Amendments1996—Subsec. (a)(2). Pub. L. 104–320, § 8(c)(1), (2), substituted “The” for “Any” and inserted at end “Each such arbitration agreement shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes.”
Subsec. (b). Pub. L. 104–320, § 8(c)(3), in introductory provisions substituted “shall not offer to use arbitration for the resolution of issues in controversy unless” for “may offer to use arbitration for the resolution of issues in controversy, if”, and in par. (1) substituted “would otherwise have authority” for “has authority”.
Subsec. (c). Pub. L. 104–320, § 8(c)(4), added subsec. (c).
1992—Pub. L. 102–354 renumbered section 585 of this title as this section.

§ 576. Enforcement of arbitration agreements
An agreement to arbitrate a matter to which this subchapter applies is enforceable pursuant to section 4 of title 9, and no action brought to enforce such an agreement shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 586; renumbered § 576, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Codification
Section 576 of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 2260 of Title 7, Agriculture, and subsequently repealed by Pub. L. 107–171, title X, § 10418(a)(3), May 13, 2002, 116 Stat. 507.

Prior ProvisionsA prior section 576 was renumbered section 596 of this title.

Amendments1992—Pub. L. 102–354 renumbered section 586 of this title as this section.

§ 577. Arbitrators(a) The parties to an arbitration proceeding shall be entitled to participate in the selection of the arbitrator.

(b) The arbitrator shall be a neutral who meets the criteria of section 573 of this title.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 587; renumbered § 577 and amended Pub. L. 102–354, § 3(b)(2), (3), Aug. 26, 1992, 106 Stat. 944, 945.)

Editorial Notes
Amendments1992—Pub. L. 102–354, § 3(b)(2), renumbered section 587 of this title as this section.
Subsec. (b). Pub. L. 102–354, § 3(b)(3), substituted “section 573” for “section 583”.

§ 578. Authority of the arbitrator
An arbitrator to whom a dispute is referred under this subchapter may—(1) regulate the course of and conduct arbitral hearings;

(2) administer oaths and affirmations;

(3) compel the attendance of witnesses and production of evidence at the hearing under the provisions of section 7 of title 9 only to the extent the agency involved is otherwise authorized by law to do so; and

(4) make awards.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 588; renumbered § 578, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 588 of this title as this section.

§ 579. Arbitration proceedings(a) The arbitrator shall set a time and place for the hearing on the dispute and shall notify the parties not less than 5 days before the hearing.

(b) Any party wishing a record of the hearing shall—(1) be responsible for the preparation of such record;

(2) notify the other parties and the arbitrator of the preparation of such record;

(3) furnish copies to all identified parties and the arbitrator; and

(4) pay all costs for such record, unless the parties agree otherwise or the arbitrator determines that the costs should be apportioned.

(c)(1) The parties to the arbitration are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing.

(2) The arbitrator may, with the consent of the parties, conduct all or part of the hearing by telephone, television, computer, or other electronic means, if each party has an opportunity to participate.

(3) The hearing shall be conducted expeditiously and in an informal manner.

(4) The arbitrator may receive any oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator.

(5) The arbitrator shall interpret and apply relevant statutory and regulatory requirements, legal precedents, and policy directives.

(d) No interested person shall make or knowingly cause to be made to the arbitrator an unauthorized ex parte communication relevant to the merits of the proceeding, unless the parties agree otherwise. If a communication is made in violation of this subsection, the arbitrator shall ensure that a memorandum of the communication is prepared and made a part of the record, and that an opportunity for rebuttal is allowed. Upon receipt of a communication made in violation of this subsection, the arbitrator may, to the extent consistent with the interests of justice and the policies underlying this subchapter, require the offending party to show cause why the claim of such party should not be resolved against such party as a result of the improper conduct.

(e) The arbitrator shall make the award within 30 days after the close of the hearing, or the date of the filing of any briefs authorized by the arbitrator, whichever date is later, unless—(1) the parties agree to some other time limit; or

(2) the agency provides by rule for some other time limit.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 589; renumbered § 579, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

Editorial Notes
Amendments1992—Pub. L. 102–354 renumbered section 589 of this title as this section.

§ 580. Arbitration awards(a)(1) Unless the agency provides otherwise by rule, the award in an arbitration proceeding under this subchapter shall include a brief, informal discussion of the factual and legal basis for the award, but formal findings of fact or conclusions of law shall not be required.

(2) The prevailing parties shall file the award with all relevant agencies, along with proof of service on all parties.

(b) The award in an arbitration proceeding shall become final 30 days after it is served on all parties. Any agency that is a party to the proceeding may extend this 30-day period for an additional 30-day period by serving a notice of such extension on all other parties before the end of the first 30-day period.

(c) A final award is binding on the parties to the arbitration proceeding, and may be enforced pursuant to sections 9 through 13 of title 9. No action brought to enforce such an award shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party.

(d) An award entered under this subchapter in an arbitration proceeding may not serve as an estoppel in any other proceeding for any issue that was resolved in the proceeding. Such an award also may not be used as precedent or otherwise be considered in any factually unrelated proceeding, whether conducted under this subchapter, by an agency, or in a court, or in any other arbitration proceeding.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2743, § 590; renumbered § 580 and amended Pub. L. 102–354, §§ 3(b)(2), 5(b)(3), Aug. 26, 1992, 106 Stat. 944, 946; Pub. L. 104–320, § 8(a), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes
Amendments1996—Subsec. (c). Pub. L. 104–320, § 8(a), redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: “The head of any agency that is a party to an arbitration proceeding conducted under this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to the proceeding before the award becomes final by serving on all other parties a written notice to that effect, in which case the award shall be null and void. Notice shall be provided to all parties to the arbitration proceeding of any request by a party, nonparty participant or other person that the agency head terminate the arbitration proceeding or vacate the award. An employee or agent engaged in the performance of investigative or prosecuting functions for an agency may not, in that or a factually related case, advise in a decision under this subsection to terminate an arbitration proceeding or to vacate an arbitral award, except as witness or counsel in public proceedings.”
Subsecs. (d), (e). Pub. L. 104–320, § 8(a)(2), redesignated subsec. (e) as (d). Former subsec. (d) redesignated (c).
Subsecs. (f), (g). Pub. L. 104–320, § 8(a)(1), struck out subsecs. (f) and (g) which read as follows:
“(f) An arbitral award that is vacated under subsection (c) shall not be admissible in any proceeding relating to the issues in controversy with respect to which the award was made.
“(g) If an agency head vacates an award under subsection (c), a party to the arbitration (other than the United States) may within 30 days of such action petition the agency head for an award of fees and other expenses (as defined in section 504(b)(1)(A) of this title) incurred in connection with the arbitration proceeding. The agency head shall award the petitioning party those fees and expenses that would not have been incurred in the absence of such arbitration proceeding, unless the agency head or his or her designee finds that special circumstances make such an award unjust. The procedures for reviewing applications for awards shall, where appropriate, be consistent with those set forth in subsection (a)(2) and (3) of section 504 of this title. Such fees and expenses shall be paid from the funds of the agency that vacated the award.”
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 590 of this title as this section.
Subsec. (g). Pub. L. 102–354, § 5(b)(3), substituted “fees and other expenses” for “attorney fees and expenses”.

§ 581. Judicial Review 11 So in original. Probably should not be capitalized.(a) Notwithstanding any other provision of law, any person adversely affected or aggrieved by an award made in an arbitration proceeding conducted under this subchapter may bring an action for review of such award only pursuant to the provisions of sections 9 through 13 of title 9.

(b) A decision by an agency to use or not to use a dispute resolution proceeding under this subchapter shall be committed to the discretion of the agency and shall not be subject to judicial review, except that arbitration shall be subject to judicial review under section 10(b) 22 See References in Text note below. of title 9.

(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2744, § 591; renumbered § 581 and amended Pub. L. 102–354, § 3(b)(2), (4), Aug. 26, 1992, 106 Stat. 944, 945; Pub. L. 104–320, § 8(b), Oct. 19, 1996, 110 Stat. 3872.)

Editorial Notes

References in TextSection 10(b) of title 9, referred to in subsec. (b), was redesignated section 10(c) of title 9 by Pub. L. 107–169, § 1(4), May 7, 2002, 116 Stat. 132.

Prior ProvisionsA prior section 581 was renumbered section 571 of this title.
Another prior section 581 was renumbered section 561 of this title.

Amendments1996—Subsec. (b). Pub. L. 104–320, which directed that section 581(d) of this title be amended by striking “(1)” after “(b)” and by striking par. (2), was executed to subsec. (b) of this section to reflect the probable intent of Congress. Prior to amendment, par. (2) read as follows: “A decision by the head of an agency under section 580 to terminate an arbitration proceeding or vacate an arbitral award shall be committed to the discretion of the agency and shall not be subject to judicial review.”
1992—Pub. L. 102–354, § 3(b)(2), renumbered section 591 of this title as this section.
Subsec. (b)(2). Pub. L. 102–354, § 3(b)(4), substituted “section 580” for “section 590”.

[§ 582. Repealed. Pub. L. 104–320, § 4(b)(1), Oct. 19, 1996, 110 Stat. 3871]

Section, added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2744, § 592; renumbered § 582, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944, related to compilation of data on use of alternative means of dispute resolution in conducting agency proceedings.

§ 583. Support services
For the purposes of this subchapter, an agency may use (with or without reimbursement) the services and facilities of other Federal agencies, State, local, and tribal governments, public and private organizations and agencies, and individuals, with the consent of such agencies, organizations, and individuals. An agency may accept voluntary and uncompensated services for purposes of this subchapter without regard to the provisions of section 1342 of title 31.
(Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2745, § 593; renumbered § 583, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 5, Oct. 19, 1996, 110 Stat. 3871.)

Editorial Notes
Prior ProvisionsPrior sections 583 to 590 were renumbered sections 573 to 580 of this title, respectively.
Other prior sections 583 to 590 were renumbered sections 563 to 570 of this title, respectively.

Amendments1996—Pub. L. 104–320 inserted “State, local, and tribal governments,” after “other Federal agencies,”.
1992—Pub. L. 102–354 renumbered section 593 of this title as this section.

§ 584. Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.
(Added Pub. L. 104–320, § 10(a), Oct. 19, 1996, 110 Stat. 3873.)

SUBCHAPTER V—ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Editorial Notes
Amendments1992—Pub. L. 102–354, § 2(1), Aug. 26, 1992, 106 Stat. 944, redesignated subchapter III of this chapter as this subchapter.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States
Pub. L. 104–52, title IV, Nov. 19, 1995, 109 Stat. 480, authorized $600,000 for the prompt and orderly termination of the Administrative Conference of the United States by Feb. 1, 1996.

§ 591. Purposes
The purposes of this subchapter are—(1) to provide suitable arrangements through which Federal agencies, assisted by outside experts, may cooperatively study mutual problems, exchange information, and develop recommendations for action by proper authorities to the end that private rights may be fully protected and regulatory activities and other Federal responsibilities may be carried out expeditiously in the public interest;

(2) to promote more effective public participation and efficiency in the rulemaking process;

(3) to reduce unnecessary litigation in the regulatory process;

(4) to improve the use of science in the regulatory process; and

(5) to improve the effectiveness of laws applicable to the regulatory process.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388, § 571; renumbered § 591, Pub. L. 102–354, § 2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L. 108–401, § 2(a), Oct. 30, 2004, 118 Stat. 2255.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1045(e).Aug. 30, 1964, Pub. L. 88–499, § 2(e), 78 Stat. 615.

The words “this subchapter” are substituted for “this Act” to reflect the codification of the Administrative Conference Act in this subchapter.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Prior ProvisionsA prior section 591 was renumbered section 581 of this title.

Amendments2004—Pub. L. 108–401 amended section catchline and text generally. Prior to amendment, text read as follows: “It is the purpose of this subchapter to provide suitable arrangements through which Federal agencies, assisted by outside experts, may cooperatively study mutual problems, exchange information, and develop recommendations for action by proper authorities to the end that private rights may be fully protected and regulatory activities and other Federal responsibilities may be carried out expeditiously in the public interest.”
1992—Pub. L. 102–354 renumbered section 571 of this title as this section.

§ 592. Definitions
For the purpose of this subchapter—(1) “administrative program” includes a Federal function which involves protection of the public interest and the determination of rights, privileges, and obligations of private persons through rule making, adjudication, licensing, or investigation, as those terms are used in subchapter II of this chapter, except that it does not include a military or foreign affairs function of the United States;

(2) “administrative agency” means an authority as defined by section 551(1) of this title; and

(3) “administrative procedure” means procedure used in carrying out an administrative program and is to be broadly construed to include any aspect of agency organization, procedure, or management which may affect the equitable consideration of public and private interests, the fairness of agency decisions, the speed of agency action, and the relationship of operating methods to later judicial review, but does not include the scope of agency responsibility as established by law or matters of substantive policy committed by law to agency discretion.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388, § 572; renumbered § 592, Pub. L. 102–354, § 2(2), Aug. 26, 1992, 106 Stat. 944.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1045a.Aug. 30, 1964, Pub. L. 88–499, § 3, 78 Stat. 615.

In paragraph (1), the words “subchapter II of this chapter” are substituted for “the Administrative Procedure Act (5 U.S.C. 1001–1011)” to reflect the codification of the Act in this title. The word “naval” is omitted as included in “military”.
In paragraph (2), the words “section 551(1) of this title” are substituted for “section 2(a) of the Administrative Procedure Act (5 U.S.C. 1001(a))”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Prior ProvisionsA prior section 592 was renumbered section 582 of this title and was subsequently repealed.

Amendments1992—Pub. L. 102–354 renumbered section 572 of this title as this section.

§ 593. Administrative Conference of the United States(a) The Administrative Conference of the United States consists of not more than 101 nor less than 75 members appointed as set forth in subsection (b) of this section.

(b) The Conference is composed of—(1) a full-time Chairman appointed for a 5-year term by the President, by and with the advice and consent of the Senate. The Chairman is entitled to pay at the highest rate established by statute for the chairman of an independent regulatory board or commission, and may continue to serve until his successor is appointed and has qualified;

(2) the chairman of each independent regulatory board or commission or an individual designated by the board or commission;

(3) the head of each Executive department or other administrative agency which is designated by the President, or an individual designated by the head of the department or agency;

(4) when authorized by the Council referred to in section 595(b) of this title, one or more appointees from a board, commission, department, or agency referred to in this subsection, designated by the head thereof with, in the case of a board or commission, the approval of the board or commission;

(5) individuals appointed by the President to membership on the Council who are not otherwise members of the Conference; and

(6) not more than 40 other members appointed by the Chairman, with the approval of the Council, for terms of 2 years, except that the number of members appointed by the Chairman may at no time be less than one-third nor more than two-fifths of the total number of members. The Chairman shall select the members in a manner which will provide broad representation of the views of private citizens and utilize diverse experience. The members shall be members of the practicing bar, scholars in the field of administrative law or government, or others specially informed by knowledge and experience with respect to Federal administrative procedure.

(c) Members of the Conference, except the Chairman, are not entitled to pay for service. Members appointed from outside the Federal Government are entitled to travel expenses, including per diem instead of subsistence, as authorized by section 5703 of this title for individuals serving without pay.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 389, § 573; Pub. L. 99–470, § 1, Oct. 14, 1986, 100 Stat. 1198; renumbered § 593 and amended Pub. L. 102–354, § 2(2), (3), Aug. 26, 1992, 106 Stat. 944.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1045b.Aug. 30, 1964, Pub. L. 88–499, § 4, 78 Stat. 616.

In subsection (a), the words “There is hereby established” are omitted as executed. The words “hereinafter referred to as the ‘Conference’ ” are omitted as unnecessary as the title “Administrative Conference of the United States” is fully set out the first time it is used in each section of this chapter.
In subsection (b)(4), the words “referred to in section 575(b) of this title” are inserted for clarity.
In subsection (c), the words “by section 5703 of this title” are substituted for “by law (5 U.S.C. 73b–2)” to reflect the codification of that section in title 5.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Prior ProvisionsA prior section 593 was renumbered section 583 of this title.

Amendments1992—Pub. L. 102–354, § 2(2), renumbered section 573 of this title as this section.
Subsec. (b)(4). Pub. L. 102–354, § 2(3), substituted “section 595(b)” for “section 575(b)”.
1986—Subsec. (a). Pub. L. 99–470, § 1(a)(1), substituted “101” for “91”.
Subsec. (b)(6). Pub. L. 99–470, § 1(a)(2), substituted “40” for “36”.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see note set out preceding section 591 of this title.

Development of Administrative ConferenceThe Administrative Conference of the United States, established as a permanent body by the Administrative Conference Act, Pub. L. 88–499, Aug. 30, 1964, 78 Stat. 615, was preceded by two temporary Conferences. The first was called by President Eisenhower in 1953 and adopted a final report which was transmitted to the President who acknowledged receipt of it on March 3, 1955. The second was established by President Kennedy by Executive Order No. 10934, Apr. 14, 1961, 26 F.R. 3233, which, by its terms, called for a final report to the President by December 31, 1962. The final report recommended a continuing Conference consisting of both government personnel and outside experts.

§ 594. Powers and duties of the Conference
To carry out the purposes of this subchapter, the Administrative Conference of the United States may—(1) study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying out administrative programs, and make recommendations to administrative agencies, collectively or individually, and to the President, Congress, or the Judicial Conference of the United States, in connection therewith, as it considers appropriate;

(2) arrange for interchange among administrative agencies of information potentially useful in improving administrative procedure;

(3) collect information and statistics from administrative agencies and publish such reports as it considers useful for evaluating and improving administrative procedure;

(4) enter into arrangements with any administrative agency or major organizational unit within an administrative agency pursuant to which the Conference performs any of the functions described in this section; and

(5) provide assistance in response to requests relating to the improvement of administrative procedure in foreign countries, subject to the concurrence of the Secretary of State, the Administrator of the Agency for International Development, or the Director of the United States Information Agency, as appropriate, except that—(A) such assistance shall be limited to the analysis of issues relating to administrative procedure, the provision of training of foreign officials in administrative procedure, and the design or improvement of administrative procedure, where the expertise of members of the Conference is indicated; and

(B) such assistance may only be undertaken on a fully reimbursable basis, including all direct and indirect administrative costs.

Payment for services provided by the Conference pursuant to paragraph (4) shall be credited to the operating account for the Conference and shall remain available until expended.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 390, § 574; Pub. L. 101–422, § 2, Oct. 12, 1990, 104 Stat. 910; renumbered § 594, Pub. L. 102–354, § 2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L. 102–403, Oct. 9, 1992, 106 Stat. 1968; Pub. L. 108–401, § 2(b)(1), Oct. 30, 2004, 118 Stat. 2255.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1045c.Aug. 30, 1964, Pub. L. 88–499, § 5, 78 Stat. 616.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2004—Pub. L. 108–401 substituted “purposes” for “purpose” in introductory provisions.
1992—Pub. L. 102–354 renumbered section 574 of this title as this section.
Par. (4). Pub. L. 102–403 amended par. (4) generally. Prior to amendment, par. (4) read as follows: “enter into arrangements with any administrative agency or major organizational unit within an administrative agency pursuant to which the Conference performs any of the functions described in paragraphs (1), (2), and (3).”
Par. (5). Pub. L. 102–403 which directed addition of par. (5) at end of section, was executed by adding par. (5) after par. (4) and before concluding provisions, to reflect the probable intent of Congress.
1990—Pub. L. 101–422 added par. (4) and concluding provisions.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see note set out preceding section 591 of this title.

Transfer of Functions
United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau) abolished and functions transferred to Secretary of State, see sections 6531 and 6532 of Title 22, Foreign Relations and Intercourse.

§ 595. Organization of the Conference(a) The membership of the Administrative Conference of the United States meeting in plenary session constitutes the Assembly of the Conference. The Assembly has ultimate authority over all activities of the Conference. Specifically, it has the power to—(1) adopt such recommendations as it considers appropriate for improving administrative procedure. A member who disagrees with a recommendation adopted by the Assembly is entitled to enter a dissenting opinion and an alternate proposal in the record of the Conference proceedings, and the opinion and proposal so entered shall accompany the Conference recommendation in a publication or distribution thereof; and

(2) adopt bylaws and regulations not inconsistent with this subchapter for carrying out the functions of the Conference, including the creation of such committees as it considers necessary for the conduct of studies and the development of recommendations for consideration by the Assembly.

(b) The Conference includes a Council composed of the Chairman of the Conference, who is Chairman of the Council, and 10 other members appointed by the President, of whom not more than one-half shall be employees of Federal regulatory agencies or Executive departments. The President may designate a member of the Council as Vice Chairman. During the absence or incapacity of the Chairman, or when that office is vacant, the Vice Chairman shall serve as Chairman. The term of each member, except the Chairman, is 3 years. When the term of a member ends, he may continue to serve until a successor is appointed. However, the service of any member ends when a change in his employment status would make him ineligible for Council membership under the conditions of his original appointment. The Council has the power to—(1) determine the time and place of plenary sessions of the Conference and the agenda for the sessions. The Council shall call at least one plenary session each year;

(2) propose bylaws and regulations, including rules of procedure and committee organization, for adoption by the Assembly;

(3) make recommendations to the Conference or its committees on a subject germane to the purpose of the Conference;

(4) receive and consider reports and recommendations of committees of the Conference and send them to members of the Conference with the views and recommendations of the Council;

(5) designate a member of the Council to preside at meetings of the Council in the absence or incapacity of the Chairman and Vice Chairman;

(6) designate such additional officers of the Conference as it considers desirable;

(7) approve or revise the budgetary proposals of the Chairman; and

(8) exercise such other powers as may be delegated to it by the Assembly.

(c) The Chairman is the chief executive of the Conference. In that capacity he has the power to—(1) make inquiries into matters he considers important for Conference consideration, including matters proposed by individuals inside or outside the Federal Government;

(2) be the official spokesman for the Conference in relations with the several branches and agencies of the Federal Government and with interested organizations and individuals outside the Government, including responsibility for encouraging Federal agencies to carry out the recommendations of the Conference;

(3) request agency heads to provide information needed by the Conference, which information shall be supplied to the extent permitted by law;

(4) recommend to the Council appropriate subjects for action by the Conference;

(5) appoint, with the approval of the Council, members of committees authorized by the bylaws and regulations of the Conference;

(6) prepare, for approval of the Council, estimates of the budgetary requirements of the Conference;

(7) appoint and fix the pay of employees, define their duties and responsibilities, and direct and supervise their activities;

(8) rent office space in the District of Columbia;

(9) provide necessary services for the Assembly, the Council, and the committees of the Conference;

(10) organize and direct studies ordered by the Assembly or the Council, to contract for the performance of such studies with any public or private persons, firm, association, corporation, or institution under title III of the Federal Property and Administrative Services Act of 1949, as amended (41 U.S.C. 251–260), and to use from time to time, as appropriate, experts and consultants who may be employed in accordance with section 3109 of this title at rates not in excess of the maximum rate of pay for grade GS–15 as provided in section 5332 of this title;

(11) utilize, with their consent, the services and facilities of Federal agencies and of State and private agencies and instrumentalities with or without reimbursement;

(12) accept, hold, administer, and utilize gifts, devises, and bequests of property, both real and personal, for the purpose of aiding and facilitating the work of the Conference. Gifts and bequests of money and proceeds from sales of other property received as gifts, devises, or bequests shall be deposited in the Treasury and shall be disbursed upon the order of the Chairman. Property accepted pursuant to this section, and the proceeds thereof, shall be used as nearly as possible in accordance with the terms of the gifts, devises, or bequests. For purposes of Federal income, estate, or gift taxes, property accepted under this section shall be considered as a gift, devise, or bequest to the United States;

(13) accept voluntary and uncompensated services, notwithstanding the provisions of section 1342 of title 31;

(14) on request of the head of an agency, furnish assistance and advice on matters of administrative procedure;

(15) exercise such additional authority as the Council or Assembly delegates to him; and

(16) request any administrative agency to notify the Chairman of its intent to enter into any contract with any person outside the agency to study the efficiency, adequacy, or fairness of an agency proceeding (as defined in section 551(12) of this title).

The Chairman shall preside at meetings of the Council and at each plenary session of the Conference, to which he shall make a full report concerning the affairs of the Conference since the last preceding plenary session. The Chairman, on behalf of the Conference, shall transmit to the President and Congress an annual report and such interim reports as he considers desirable.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 390, § 575; Pub. L. 92–526, § 1, Oct. 21, 1972, 86 Stat. 1048; Pub. L. 97–258, § 3(a)(1), Sept. 13, 1982, 96 Stat. 1062; Pub. L. 101–422, § 3, Oct. 12, 1990, 104 Stat. 910; renumbered § 595, Pub. L. 102–354, § 2(2), Aug. 26, 1992, 106 Stat. 944.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1045d.Aug. 30, 1964, Pub. L. 88–499, § 6, 78 Stat. 617.

In subsection (b), the words “except that the Council members initially appointed shall serve for one, two, or three years, as designated by the President” are omitted as executed, existing rights being preserved by technical section 8.
In subsection (b)(1), the words “the sessions” are substituted for “such meetings” for clarity as elsewhere the word “sessions” refers to sessions of the Conference and “meetings” refers to meetings of the Council.
In subsection (c)(7), the words “subject to the civil service and classification laws” are omitted as unnecessary inasmuch as appointments in the executive branch are made subject to the civil service laws and pay is fixed under classification laws unless specifically excepted. The words “and fix the pay of” are added for clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextThe Federal Property and Administrative Services Act of 1949, referred to in subsec. (c)(10), is act June 30, 1949, ch. 288, 63 Stat. 377. Title III of the Act was classified generally to subchapter IV (§ 251 et seq.) of chapter 4 of former Title 41, Public Contracts, and was substantially repealed and restated in division C (§ 3101 et seq.) of subtitle I of Title 41, Public Contracts, by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For complete classification of this Act to the Code, see Short Title of 1949 Act note set out under section 101 of Title 41 and Tables. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.

Amendments1992—Pub. L. 102–354 renumbered section 575 of this title as this section.
1990—Subsec. (c)(16). Pub. L. 101–422 added par. (16).
1982—Subsec. (c)(13). Pub. L. 97–258 substituted “section 1342 of title 31” for “section 3679(b) of the Revised Statutes (31 U.S.C. 665(b))”.
1972—Subsec. (c)(10). Pub. L. 92–526, § 1(a), inserted provisions authorizing contracts for the performance of such studies with any public or private persons, etc., under title III of the Federal Property and Administrative Services Act of 1949, as amended, and substituted provisions authorizing the payment of experts and consultants in accordance with rates not in excess of the maximum rate of pay for grade GS–15 as provided in section 5332 of this title, for provisions authorizing the payment of such individuals at rates not in excess of $100 a day.
Subsec. (c)(11) to (15). Pub. L. 92–526, § 1(b), added pars. (11) to (13) and redesignated former pars. (11) and (12) as (14) and (15), respectively.

Statutory Notes and Related Subsidiaries

Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see note set out preceding section 591 of this title.

§ 596. Authorization of appropriations
There are authorized to be appropriated to carry out this subchapter not more than $3,200,000 for fiscal year 2009, $3,200,000 for fiscal year 2010, and $3,200,000 for fiscal year 2011. Of any amounts appropriated under this section, not more than $2,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 391, § 576; Pub. L. 91–164, Dec. 24, 1969, 83 Stat. 446; Pub. L. 92–526, § 2, Oct. 21, 1972, 86 Stat. 1048; Pub. L. 95–293, § 1(a), June 13, 1978, 92 Stat. 317; Pub. L. 97–330, Oct. 15, 1982, 96 Stat. 1618; Pub. L. 99–470, § 2(a), Oct. 14, 1986, 100 Stat. 1198; Pub. L. 101–422, § 1, Oct. 12, 1990, 104 Stat. 910; renumbered § 596, Pub. L. 102–354, § 2(2), Aug. 26, 1992, 106 Stat. 944; Pub. L. 108–401, § 3, Oct. 30, 2004, 118 Stat. 2255; Pub. L. 110–290, § 2, July 30, 2008, 122 Stat. 2914.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1045e.Aug. 30, 1964, Pub. L. 88–499, § 7, 78 Stat. 618.

The word “hereby” is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2008—Pub. L. 110–290 amended section generally. Prior to amendment, text read as follows: “There are authorized to be appropriated to carry out this subchapter not more than $3,000,000 for fiscal year 2005, $3,100,000 for fiscal year 2006, and $3,200,000 for fiscal year 2007. Of any amounts appropriated under this section, not more than $2,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries.”
2004—Pub. L. 108–401 reenacted section catchline without change and amended text generally. Prior to amendment, text read as follows: “There are authorized to be appropriated to carry out the purposes of this subchapter not more than $2,000,000 for fiscal year 1990, $2,100,000 for fiscal year 1991, $2,200,000 for fiscal year 1992, $2,300,000 for fiscal year 1993, and $2,400,000 for fiscal year 1994. Of any amounts appropriated under this section, not more than $1,500 may be made available in each fiscal year for official representation and entertainment expenses for foreign dignitaries.”
1992—Pub. L. 102–354 renumbered section 576 of this title as this section.
1990—Pub. L. 101–422 amended section generally. Prior to amendment, section read as follows: “There are authorized to be appropriated to carry out the purposes of this subchapter not more than $1,600,000 for fiscal year 1986 and not more than $2,000,000 for each fiscal year thereafter up to and including fiscal year 1990. Of any amounts appropriated under this section, not more than $1,000 may be made available in each fiscal year for official reception and entertainment expenses for foreign dignitaries.”
1986—Pub. L. 99–470 substituted “Authorization of appropriations” for “Appropriations” in section catchline and amended text generally. Prior to amendment, text read as follows: “There are authorized to be appropriated to carry out the purposes of this subchapter sums not to exceed $2,300,000 for the fiscal year ending September 30, 1982, and not to exceed $2,300,000 for each fiscal year thereafter up to and including the fiscal year ending September 30, 1986.”
1982—Pub. L. 97–330 substituted provisions authorizing appropriations of not to exceed $2,300,000 for fiscal year ending Sept. 30, 1982, and not to exceed $2,300,000 for each fiscal year thereafter up to and including fiscal year ending Sept. 30, 1986, for provisions that had authorized appropriations of not to exceed $1,700,000 for fiscal year ending Sept. 30, 1979, $2,000,000 for fiscal year ending Sept. 30, 1980, $2,300,000 for fiscal year ending Sept. 30, 1981, and $2,300,000 for fiscal year ending Sept. 30, 1982.
1978—Pub. L. 95–293 substituted provisions authorizing appropriations for fiscal years ending Sept. 30, 1979, Sept. 30, 1980, Sept. 30, 1981, and Sept. 30, 1982, of $1,700,000, $2,000,000, $2,300,000, and $2,300,000, respectively, for provisions authorizing appropriations for fiscal years ending June 30, 1974, June 30, 1975, June 30, 1976, June 30, 1977, and June 30, 1978, of $760,000, $805,000, $850,000, $900,000, and $950,000, respectively, and provisions authorizing for each fiscal year thereafter such sums as may be necessary.
1972—Pub. L. 92–526 substituted provisions authorizing to be appropriated necessary sums not in excess of $760,000 for fiscal year ending June 30, 1974, $805,000 for fiscal year ending June 30, 1975, $850,000 for fiscal year ending June 30, 1976, $900,000 for fiscal year ending June 30, 1977, and $950,000 for fiscal year ending June 30, 1978, and each fiscal year thereafter, for provisions authorizing to be appropriated necessary sums, not in excess of $450,000 per annum.
1969—Pub. L. 91–164 substituted “$450,000 per annum” for “$250,000”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentPub. L. 95–293, § 1(b), June 13, 1978, 92 Stat. 317, provided that: “The amendment made by subsection (a) [amending this section] shall take effect October 1, 1977.”

CHAPTER 6—THE ANALYSIS OF REGULATORY FUNCTIONS

Sec.

601.Definitions.

602.Regulatory agenda.

603.Initial regulatory flexibility analysis.

604.Final regulatory flexibility analysis.

605.Avoidance of duplicative or unnecessary analyses.

606.Effect on other law.

607.Preparation of analyses.

608.Procedure for waiver or delay of completion.

609.Procedures for gathering comments.

610.Periodic review of rules.

611.Judicial review.

612.Reports and intervention rights.

§ 601. Definitions
For purposes of this chapter—(1) the term “agency” means an agency as defined in section 551(1) of this title;

(2) the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of this title, or any other law, including any rule of general applicability governing Federal grants to State and local governments for which the agency provides an opportunity for notice and public comment, except that the term “rule” does not include a rule of particular applicability relating to rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services, or allowances therefor or to valuations, costs or accounting, or practices relating to such rates, wages, structures, prices, appliances, services, or allowances;

(3) the term “small business” has the same meaning as the term “small business concern” under section 3 of the Small Business Act, unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register;

(4) the term “small organization” means any not-for-profit enterprise which is independently owned and operated and is not dominant in its field, unless an agency establishes, after opportunity for public comment, one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register;

(5) the term “small governmental jurisdiction” means governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand, unless an agency establishes, after opportunity for public comment, one or more definitions of such term which are appropriate to the activities of the agency and which are based on such factors as location in rural or sparsely populated areas or limited revenues due to the population of such jurisdiction, and publishes such definition(s) in the Federal Register;

(6) the term “small entity” shall have the same meaning as the terms “small business”, “small organization” and “small governmental jurisdiction” defined in paragraphs (3), (4) and (5) of this section; and

(7) the term “collection of information”—(A) means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either—(i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, 10 or more persons, other than agencies, instrumentalities, or employees of the United States; or

(ii) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes; and

(B) shall not include a collection of information described under section 3518(c)(1) of title 44, United States Code.

(8) Recordkeeping requirement.—The term “recordkeeping requirement” means a requirement imposed by an agency on persons to maintain specified records.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1165; amended Pub. L. 104–121, title II, § 241(a)(2), Mar. 29, 1996, 110 Stat. 864.)

Editorial Notes

References in TextSection 3 of the Small Business Act, referred to in par. (3), is classified to section 632 of Title 15, Commerce and Trade.

Amendments1996—Pars. (7), (8). Pub. L. 104–121 added pars. (7) and (8).

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentPub. L. 104–121, title II, § 245, Mar. 29, 1996, 110 Stat. 868, provided that: “This subtitle [subtitle D (§§ 241–245) of title II of Pub. L. 104–121, amending this section and sections 603 to 605, 609, 611, and 612 of this title and enacting provisions set out as a note under section 609 of this title] shall become effective on the expiration of 90 days after the date of enactment of this subtitle [Mar. 29, 1996], except that such amendments shall not apply to interpretative rules for which a notice of proposed rulemaking was published prior to the date of enactment.”

Effective DatePub. L. 96–354, § 4, Sept. 19, 1980, 94 Stat. 1170, provided that: “The provisions of this Act [enacting this chapter] shall take effect January 1, 1981, except that the requirements of sections 603 and 604 of title 5, United States Code (as added by section 3 of this Act) shall apply only to rules for which a notice of proposed rulemaking is issued on or after January 1, 1981.”

Short Title of 1996 AmendmentPub. L. 104–121, § 1, Mar. 29, 1996, 110 Stat. 847, provided that: “This Act [enacting sections 801 to 808 of this title, section 657 of Title 15, Commerce and Trade, and sections 1320b–15 and 1383e of Title 42, The Public Health and Welfare, amending this section and sections 504, 603 to 605, 609, 611, and 612 of this title, sections 665e and 901 of Title 2, The Congress, section 648 of Title 15, section 2412 of Title 28, Judiciary and Judicial Procedure, section 3101 of Title 31, Money and Finance, and sections 401, 402, 403, 405, 422, 423, 425, 902, 903, 1382, 1382c, 1383, and 1383c of Title 42, enacting provisions set out as notes under this section and sections 504, 609, and 801 of this title and sections 401, 402, 403, 405, 902, 1305, 1320b–15, and 1382 of Title 42, amending provisions set out as a note under section 631 of Title 15, and repealing provisions set out as a note under section 425 of Title 42] may be cited as the ‘Contract with America Advancement Act of 1996’.”

Short TitlePub. L. 96–354, § 1, Sept. 19, 1980, 94 Stat. 1164, provided: “That this Act [enacting this chapter] may be cited as the ‘Regulatory Flexibility Act’.”

Regulatory Enforcement ReportsPub. L. 107–198, § 4, June 28, 2002, 116 Stat. 732, provided that:
“(a) Definition.—In this section, the term ‘agency’ has the meaning given that term under section 551 of title 5, United States Code.

“(b) In General.—“(1) Initial report.—Not later than December 31, 2003, each agency shall submit an initial report to—“(A) the chairpersons and ranking minority members of—“(i) the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] and the Committee on Small Business and Entrepreneurship of the Senate; and

“(ii) the Committee on Government Reform [now Committee on Oversight and Reform] and the Committee on Small Business of the House of Representatives; and

“(B) the Small Business and Agriculture Regulatory Enforcement Ombudsman designated under section 30(b) of the Small Business Act (15 U.S.C. 657(b)).

“(2) Final report.—Not later than December 31, 2004, each agency shall submit a final report to the members and officer described under paragraph (1) (A) and (B).

“(3) Content.—The initial report under paragraph (1) shall include information with respect to the 1-year period beginning on October 1, 2002, and the final report under paragraph (2) shall include information with respect to the 1-year period beginning on October 1, 2003, on each of the following:“(A) The number of enforcement actions in which a civil penalty is assessed.

“(B) The number of enforcement actions in which a civil penalty is assessed against a small entity.

“(C) The number of enforcement actions described under subparagraphs (A) and (B) in which the civil penalty is reduced or waived.

“(D) The total monetary amount of the reductions or waivers referred to under subparagraph (C).

“(4) Definitions in reports.—Each report under this subsection shall include definitions selected at the discretion of the reporting agency of the terms ‘enforcement actions’, ‘reduction or waiver’, and ‘small entity’ as used in the report.”

Assessment of Federal Regulations and Policies on FamiliesPub. L. 105–277, div. A, § 101(h) [title VI, § 654], Oct. 21, 1998, 112 Stat. 2681–480, 2681–528, as amended by Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814, provided that:
“(a) Purposes.—The purposes of this section are to—“(1) require agencies to assess the impact of proposed agency actions on family well-being; and

“(2) improve the management of executive branch agencies.

“(b) Definitions.—In this section—“(1) the term ‘agency’ has the meaning given the term ‘Executive agency’ by section 105 of title 5, United States Code, except such term does not include the Government Accountability Office; and

“(2) the term ‘family’ means—“(A) a group of individuals related by blood, marriage, adoption, or other legal custody who live together as a single household; and

“(B) any individual who is not a member of such group, but who is related by blood, marriage, or adoption to a member of such group, and over half of whose support in a calendar year is received from such group.

“(c) Family Policymaking Assessment.—Before implementing policies and regulations that may affect family well-being, each agency shall assess such actions with respect to whether—“(1) the action strengthens or erodes the stability or safety of the family and, particularly, the marital commitment;

“(2) the action strengthens or erodes the authority and rights of parents in the education, nurture, and supervision of their children;

“(3) the action helps the family perform its functions, or substitutes governmental activity for the function;

“(4) the action increases or decreases disposable income or poverty of families and children;

“(5) the proposed benefits of the action justify the financial impact on the family;

“(6) the action may be carried out by State or local government or by the family; and

“(7) the action establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth, and the norms of society.

“(d) Governmentwide Family Policy Coordination and Review.—“(1) Certification and rationale.—With respect to each proposed policy or regulation that may affect family well-being, the head of each agency shall—“(A) submit a written certification to the Director of the Office of Management and Budget and to Congress that such policy or regulation has been assessed in accordance with this section; and

“(B) provide an adequate rationale for implementation of each policy or regulation that may negatively affect family well-being.

“(2) Office of management and budget.—The Director of the Office of Management and Budget shall—“(A) ensure that policies and regulations proposed by agencies are implemented consistent with this section; and

“(B) compile, index, and submit annually to the Congress the written certifications received pursuant to paragraph (1)(A).

“(3) Office of policy development.—The Office of Policy Development shall—“(A) assess proposed policies and regulations in accordance with this section;

“(B) provide evaluations of policies and regulations that may affect family well-being to the Director of the Office of Management and Budget; and

“(C) advise the President on policy and regulatory actions that may be taken to strengthen the institutions of marriage and family in the United States.

“(e) Assessments Upon Request by Members of Congress.—Upon request by a Member of Congress relating to a proposed policy or regulation, an agency shall conduct an assessment in accordance with subsection (c), and shall provide a certification and rationale in accordance with subsection (d).

“(f) Judicial Review.—This section is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.”

Small Business Regulatory FairnessPub. L. 104–121, title II, §§ 201–224, Mar. 29, 1996, 110 Stat. 857–862, as amended by Pub. L. 110–28, title VIII, § 8302, May 25, 2007, 121 Stat. 204, provided that:
“SEC. 201. SHORT TITLE.“This title [enacting sections 801 to 808 of this title and section 657 of Title 15, Commerce and Trade, amending this section, sections 504, 603 to 605, 609, 611, and 612 of this title, section 648 of Title 15, and section 2412 of Title 28, Judiciary and Judicial Procedure, enacting provisions set out as notes under this section and sections 504, 609, and 801 of this title, and amending provisions set out as a note under section 631 of Title 15] may be cited as the ‘Small Business Regulatory Enforcement Fairness Act of 1996’.

“SEC. 202. FINDINGS.“Congress finds that—“(1) a vibrant and growing small business sector is critical to creating jobs in a dynamic economy;

“(2) small businesses bear a disproportionate share of regulatory costs and burdens;

“(3) fundamental changes that are needed in the regulatory and enforcement culture of Federal agencies to make agencies more responsive to small business can be made without compromising the statutory missions of the agencies;

“(4) three of the top recommendations of the 1995 White House Conference on Small Business involve reforms to the way government regulations are developed and enforced, and reductions in government paperwork requirements;

“(5) the requirements of chapter 6 of title 5, United States Code, have too often been ignored by government agencies, resulting in greater regulatory burdens on small entities than necessitated by statute; and

“(6) small entities should be given the opportunity to seek judicial review of agency actions required by chapter 6 of title 5, United States Code.

“SEC. 203. PURPOSES.“The purposes of this title are—“(1) to implement certain recommendations of the 1995 White House Conference on Small Business regarding the development and enforcement of Federal regulations;

“(2) to provide for judicial review of chapter 6 of title 5, United States Code;

“(3) to encourage the effective participation of small businesses in the Federal regulatory process;

“(4) to simplify the language of Federal regulations affecting small businesses;

“(5) to develop more accessible sources of information on regulatory and reporting requirements for small businesses;

“(6) to create a more cooperative regulatory environment among agencies and small businesses that is less punitive and more solution-oriented; and

“(7) to make Federal regulators more accountable for their enforcement actions by providing small entities with a meaningful opportunity for redress of excessive enforcement activities.

“subtitle a—regulatory compliance simplification“SEC. 211. DEFINITIONS.“For purposes of this subtitle—“(1) the terms ‘rule’ and ‘small entity’ have the same meanings as in section 601 of title 5, United States Code;

“(2) the term ‘agency’ has the same meaning as in section 551 of title 5, United States Code; and

“(3) the term ‘small entity compliance guide’ means a document designated and entitled as such by an agency.

“SEC. 212. COMPLIANCE GUIDES.“(a) Compliance Guide.—“(1) In general.—For each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis under section 605(b) [probably should be “section 604”] of title 5, United States Code, the agency shall publish 1 or more guides to assist small entities in complying with the rule and shall entitle such publications ‘small entity compliance guides’.

“(2) Publication of guides.—The publication of each guide under this subsection shall include—“(A) the posting of the guide in an easily identified location on the website of the agency; and

“(B) distribution of the guide to known industry contacts, such as small entities, associations, or industry leaders affected by the rule.

“(3) Publication date.—An agency shall publish each guide (including the posting and distribution of the guide as described under paragraph (2))—“(A) on the same date as the date of publication of the final rule (or as soon as possible after that date); and

“(B) not later than the date on which the requirements of that rule become effective.

“(4) Compliance actions.—“(A) In general.—Each guide shall explain the actions a small entity is required to take to comply with a rule.

“(B) Explanation.—The explanation under subparagraph (A)—“(i) shall include a description of actions needed to meet the requirements of a rule, to enable a small entity to know when such requirements are met; and

“(ii) if determined appropriate by the agency, may include a description of possible procedures, such as conducting tests, that may assist a small entity in meeting such requirements, except that, compliance with any procedures described pursuant to this section does not establish compliance with the rule, or establish a presumption or inference of such compliance.

“(C) Procedures.—Procedures described under subparagraph (B)(ii)—“(i) shall be suggestions to assist small entities; and

“(ii) shall not be additional requirements, or diminish requirements, relating to the rule.

“(5) Agency preparation of guides.—The agency shall, in its sole discretion, taking into account the subject matter of the rule and the language of relevant statutes, ensure that the guide is written using sufficiently plain language likely to be understood by affected small entities. Agencies may prepare separate guides covering groups or classes of similarly affected small entities and may cooperate with associations of small entities to develop and distribute such guides. An agency may prepare guides and apply this section with respect to a rule or a group of related rules.

“(6) Reporting.—Not later than 1 year after the date of enactment of the Fair Minimum Wage Act of 2007 [May 25, 2007], and annually thereafter, the head of each agency shall submit a report to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Small Business of the House of Representatives, and any other committee of relevant jurisdiction describing the status of the agency’s compliance with paragraphs (1) through (5).

“(b) Comprehensive Source of Information.—Agencies shall cooperate to make available to small entities through comprehensive sources of information, the small entity compliance guides and all other available information on statutory and regulatory requirements affecting small entities.

“(c) Limitation on Judicial Review.—An agency’s small entity compliance guide shall not be subject to judicial review, except that in any civil or administrative action against a small entity for a violation occurring after the effective date of this section, the content of the small entity compliance guide may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages.

“SEC. 213. INFORMAL SMALL ENTITY GUIDANCE.“(a) General.—Whenever appropriate in the interest of administering statutes and regulations within the jurisdiction of an agency which regulates small entities, it shall be the practice of the agency to answer inquiries by small entities concerning information on, and advice about, compliance with such statutes and regulations, interpreting and applying the law to specific sets of facts supplied by the small entity. In any civil or administrative action against a small entity, guidance given by an agency applying the law to facts provided by the small entity may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages sought against such small entity.

“(b) Program.—Each agency regulating the activities of small entities shall establish a program for responding to such inquiries no later than 1 year after enactment of this section [Mar. 29, 1996], utilizing existing functions and personnel of the agency to the extent practicable.

“(c) Reporting.—Each agency regulating the activities of small business shall report to the Committee on Small Business [now Committee on Small Business and Entrepreneurship] and Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate and the Committee on Small Business and Committee on the Judiciary of the House of Representatives no later than 2 years after the date of the enactment of this section on the scope of the agency’s program, the number of small entities using the program, and the achievements of the program to assist small entity compliance with agency regulations.

“SEC. 214. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.“(a) [Amended section 648 of Title 15, Commerce and Trade.]

“(b) Nothing in this Act [see Short Title of 1996 Amendment note, above] in any way affects or limits the ability of other technical assistance or extension programs to perform or continue to perform services related to compliance assistance.

“SEC. 215. COOPERATION ON GUIDANCE.“Agencies may, to the extent resources are available and where appropriate, in cooperation with the States, develop guides that fully integrate requirements of both Federal and State regulations where regulations within an agency’s area of interest at the Federal and State levels impact small entities. Where regulations vary among the States, separate guides may be created for separate States in cooperation with State agencies.

“SEC. 216. EFFECTIVE DATE.“This subtitle and the amendments made by this subtitle shall take effect on the expiration of 90 days after the date of enactment of this subtitle [Mar. 29, 1996].

“subtitle b—regulatory enforcement reforms“SEC. 221. DEFINITIONS.“For purposes of this subtitle—“(1) the terms ‘rule’ and ‘small entity’ have the same meanings as in section 601 of title 5, United States Code;

“(2) the term ‘agency’ has the same meaning as in section 551 of title 5, United States Code; and

“(3) the term ‘small entity compliance guide’ means a document designated as such by an agency.

“SEC. 222. SMALL BUSINESS AND AGRICULTURE ENFORCEMENT OMBUDSMAN.
“[Enacted section 657 of Title 15, Commerce and Trade.]

“SEC. 223. RIGHTS OF SMALL ENTITIES IN ENFORCEMENT ACTIONS.“(a) In General.—Each agency regulating the activities of small entities shall establish a policy or program within 1 year of enactment of this section [Mar. 29, 1996] to provide for the reduction, and under appropriate circumstances for the waiver, of civil penalties for violations of a statutory or regulatory requirement by a small entity. Under appropriate circumstances, an agency may consider ability to pay in determining penalty assessments on small entities.

“(b) Conditions and Exclusions.—Subject to the requirements or limitations of other statutes, policies or programs established under this section shall contain conditions or exclusions which may include, but shall not be limited to—“(1) requiring the small entity to correct the violation within a reasonable correction period;

“(2) limiting the applicability to violations discovered through participation by the small entity in a compliance assistance or audit program operated or supported by the agency or a State;

“(3) excluding small entities that have been subject to multiple enforcement actions by the agency;

“(4) excluding violations involving willful or criminal conduct;

“(5) excluding violations that pose serious health, safety or environmental threats; and

“(6) requiring a good faith effort to comply with the law.

“(c) Reporting.—Agencies shall report to the Committee on Small Business [now Committee on Small Business and Entrepreneurship] and Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate and the Committee on Small Business and Committee on Judiciary of the House of Representatives no later than 2 years after the date of enactment of this section [Mar. 29, 1996] on the scope of their program or policy, the number of enforcement actions against small entities that qualified or failed to qualify for the program or policy, and the total amount of penalty reductions and waivers.

“SEC. 224. EFFECTIVE DATE.“This subtitle and the amendments made by this subtitle shall take effect on the expiration of 90 days after the date of enactment of this subtitle [Mar. 29, 1996].”

Effects of Deregulation On Rural AmericaPub. L. 101–574, title III, § 309, Nov. 15, 1990, 104 Stat. 2831, provided that:
“(a) Study.—The Office of Technology Assessment shall conduct a study of the effects of deregulation on the economic vitality of rural areas. Such study shall include, but not be limited to, a thorough analysis of the impact of deregulation on—“(1) the number of loans made by financial institutions to small businesses located in rural areas, a change in the level of security interests required for such loans, and the cost of such loans to rural small businesses for creation and expansion;

“(2) airline service in cities and towns with populations of 100,000 or less, including airline fare, the number of flights available, number of seats available, scheduling of flights, continuity of service, number of markets being served by large and small airlines, availability of nonstop service, availability of direct service, number of economic cancellations, number of flight delays, the types of airplanes used, and time delays;

“(3) the availability and costs of bus, rail and trucking transportation for businesses located in rural areas;

“(4) the availability and costs of state-of-the-art telecommunications services to small businesses located in rural areas, including voice telephone service, private (not multiparty) telephone service, reliable facsimile document and data transmission, competitive long distance carriers, cellular (mobile) telephone service, multifrequency tone signaling services such as touchtone services, custom-calling services (including three-way calling, call forwarding, and call waiting), voicemail services, and 911 emergency services with automatic number identification;

“(5) the availability and costs to rural schools, hospitals, and other public facilities, of sending and receiving audio and visual signals in cases where such ability will enhance the quality of services provided to rural residents and businesses; and

“(6) the availability and costs of services enumerated in paragraphs (1) through (5) in urban areas compared to rural areas.

“(b) Report.—Not later than 12 months after the date of enactment of this title [Nov. 15, 1990], the Office of Technology Assessment shall transmit to Congress a report on the results of the study conducted under subsection (a) together with its recommendations on how to address the problems facing small businesses in rural areas.”

Congressional Findings and Declaration of PurposePub. L. 96–354, § 2, Sept. 19, 1980, 94 Stat. 1164, provided that:
“(a) The Congress finds and declares that—“(1) when adopting regulations to protect the health, safety and economic welfare of the Nation, Federal agencies should seek to achieve statutory goals as effectively and efficiently as possible without imposing unnecessary burdens on the public;

“(2) laws and regulations designed for application to large scale entities have been applied uniformly to small businesses, small organizations, and small governmental jurisdictions even though the problems that gave rise to government action may not have been caused by those smaller entities;

“(3) uniform Federal regulatory and reporting requirements have in numerous instances imposed unnecessary and disproportionately burdensome demands including legal, accounting and consulting costs upon small businesses, small organizations, and small governmental jurisdictions with limited resources;

“(4) the failure to recognize differences in the scale and resources of regulated entities has in numerous instances adversely affected competition in the marketplace, discouraged innovation and restricted improvements in productivity;

“(5) unnecessary regulations create entry barriers in many industries and discourage potential entrepreneurs from introducing beneficial products and processes;

“(6) the practice of treating all regulated businesses, organizations, and governmental jurisdictions as equivalent may lead to inefficient use of regulatory agency resources, enforcement problems, and, in some cases, to actions inconsistent with the legislative intent of health, safety, environmental and economic welfare legislation;

“(7) alternative regulatory approaches which do not conflict with the stated objectives of applicable statutes may be available which minimize the significant economic impact of rules on small businesses, small organizations, and small governmental jurisdictions;

“(8) the process by which Federal regulations are developed and adopted should be reformed to require agencies to solicit the ideas and comments of small businesses, small organizations, and small governmental jurisdictions to examine the impact of proposed and existing rules on such entities, and to review the continued need for existing rules.

“(b) It is the purpose of this Act [enacting this chapter] to establish as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.”

Executive Documents

Executive Order No. 12291
Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, which established requirements for agencies to follow in promulgating regulations, reviewing existing regulations, and developing legislative proposals concerning regulation, was revoked by Ex. Ord. No. 12866, § 11, Sept. 30, 1993, 58 F.R. 51735, set out below.

Executive Order No. 12498
Ex. Ord. No. 12498, Jan. 4, 1985, 50 F.R. 1036, which established a regulatory planning process by which to develop and publish a regulatory program for each year, was revoked by Ex. Ord. No. 12866, § 11, Sept. 30, 1993, 58 F.R. 51735, set out below.

Executive Order No. 12606
Ex. Ord. No. 12606, Sept. 2, 1987, 52 F.R. 34188, which provided criteria for executive departments and agencies to follow in making policies and regulations to ensure consideration of effect of those policies and regulations on autonomy and rights of the family, was revoked by Ex. Ord. No. 13045, § 7, Apr. 21, 1997, 62 F.R. 19888, set out as a note under section 4321 of Title 42, The Public Health and Welfare.

Executive Order No. 12612
Ex. Ord. No. 12612, Oct. 26, 1987, 52 F.R. 41685, which set out fundamental federalism principles and policymaking criteria for executive departments and agencies to follow in formulating and implementing policies and limited the instances when executive departments and agencies could construe a Federal statute to preempt State law, was revoked by Ex. Ord. No. 13132, § 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Ex. Ord. No. 12630. Governmental Actions and Interference With Constitutionally Protected Property Rights
Ex. Ord. No. 12630, Mar. 15, 1988, 53 F.R. 8859, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to ensure that government actions are undertaken on a well-reasoned basis with due regard for fiscal accountability, for the financial impact of the obligations imposed on the Federal government by the Just Compensation Clause of the Fifth Amendment, and for the Constitution, it is hereby ordered as follows:
Section 1. Purpose. (a) The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use without just compensation. Government historically has used the formal exercise of the power of eminent domain, which provides orderly processes for paying just compensation, to acquire private property for public use. Recent Supreme Court decisions, however, in reaffirming the fundamental protection of private property rights provided by the Fifth Amendment and in assessing the nature of governmental actions that have an impact on constitutionally protected property rights, have also reaffirmed that governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required.
(b) Responsible fiscal management and fundamental principles of good government require that government decision-makers evaluate carefully the effect of their administrative, regulatory, and legislative actions on constitutionally protected property rights. Executive departments and agencies should review their actions carefully to prevent unnecessary takings and should account in decision-making for those takings that are necessitated by statutory mandate.
(c) The purpose of this Order is to assist Federal departments and agencies in undertaking such reviews and in proposing, planning, and implementing actions with due regard for the constitutional protections provided by the Fifth Amendment and to reduce the risk of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In furtherance of the purpose of this Order, the Attorney General shall, consistent with the principles stated herein and in consultation with the Executive departments and agencies, promulgate Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings to which each Executive department or agency shall refer in making the evaluations required by this Order or in otherwise taking any action that is the subject of this Order. The Guidelines shall be promulgated no later than May 1, 1988, and shall be disseminated to all units of each Executive department and agency no later than July 1, 1988. The Attorney General shall, as necessary, update these guidelines to reflect fundamental changes in takings law occurring as a result of Supreme Court decisions.
Sec. 2. Definitions. For the purpose of this Order: (a) “Policies that have takings implications” refers to Federal regulations, proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, or other Federal policy statements that, if implemented or enacted, could effect a taking, such as rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. “Policies that have takings implications” does not include:
(1) Actions abolishing regulations, discontinuing governmental programs, or modifying regulations in a manner that lessens interference with the use of private property;
(2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations;
(3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority;
(6) The placement of military facilities or military activities involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement functions thereunder) but not including the U.S. Army Corps of Engineers civil works program.
(b) Private property refers to all property protected by the Just Compensation Clause of the Fifth Amendment.
(c) “Actions” refers to proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, applications of Federal regulations to specific property, or Federal governmental actions physically invading or occupying private property, or other policy statements or actions related to Federal regulation or direct physical invasion or occupancy, but does not include:
(1) Actions in which the power of eminent domain is formally exercised;
(2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations;
(3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority;
(6) The placement of military facilities or military activities involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement functions thereunder), but not including the U.S. Army Corps of Engineers civil works program.
Sec. 3. General Principles. In formulating or implementing policies that have takings implications, each Executive department and agency shall be guided by the following general principles:
(a) Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by the Just Compensation Clause of the Fifth Amendment in planning and carrying out governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc.
(b) Actions undertaken by governmental officials that result in a physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use, may constitute a taking of property. Further, governmental action may amount to a taking even though the action results in less than a complete deprivation of all use or value, or of all separate and distinct interests in the same private property and even if the action constituting a taking is temporary in nature.
(c) Government officials whose actions are taken specifically for purposes of protecting public health and safety are ordinarily given broader latitude by courts before their actions are considered to be takings. However, the mere assertion of a public health and safety purpose is insufficient to avoid a taking. Actions to which this Order applies asserted to be for the protection of public health and safety, therefore, should be undertaken only in response to real and substantial threats to public health and safety, be designed to advance significantly the health and safety purpose, and be no greater than is necessary to achieve the health and safety purpose.
(d) While normal governmental processes do not ordinarily effect takings, undue delays in decision-making during which private property use if interfered with carry a risk of being held to be takings. Additionally, a delay in processing may increase significantly the size of compensation due if a taking is later found to have occurred.
(e) The Just Compensation Clause is self-actuating, requiring that compensation be paid whenever governmental action results in a taking of private property regardless of whether the underlying authority for the action contemplated a taking or authorized the payment of compensation. Accordingly, governmental actions that may have a significant impact on the use or value of private property should be scrutinized to avoid undue or unplanned burdens on the public fisc.
Sec. 4. Department and Agency Action. In addition to the fundamental principles set forth in Section 3, Executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when implementing policies that have takings implications:
(a) When an Executive department or agency requires a private party to obtain a permit in order to undertake a specific use of, or action with respect to, private property, any conditions imposed on the granting of a permit shall:
(1) Serve the same purpose that would have been served by a prohibition of the use or action; and
(2) Substantially advance that purpose.
(b) When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress.
(c) When a proposed action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary.
(d) Before undertaking any proposed action regulating private property use for the protection of public health or safety, the Executive department or agency involved shall, in internal deliberative documents and any submissions to the Director of the Office of Management and Budget that are required:
(1) Identify clearly, with as much specificity as possible, the public health or safety risk created by the private property use that is the subject of the proposed action;
(2) Establish that such proposed action substantially advances the purpose of protecting public health and safety against the specifically identified risk;
(3) Establish to the extent possible that the restrictions imposed on the private property are not disproportionate to the extent to which the use contributes to the overall risk; and
(4) Estimate, to the extent possible, the potential cost to the government in the event that a court later determines that the action constituted a taking.
In instances in which there is an immediate threat to health and safety that constitutes an emergency requiring immediate response, this analysis may be done upon completion of the emergency action.
Sec. 5. Executive Department and Agency Implementation. (a) The head of each Executive department and agency shall designate an official to be responsible for ensuring compliance with this Order with respect to the actions of the department or agency.
(b) Executive departments and agencies shall, to the extent permitted by law, identify the takings implications of proposed regulatory actions and address the merits of those actions in light of the identified takings implications, if any, in all required submissions made to the Office of Management and Budget. Significant takings implications should also be identified and discussed in notices of proposed rule-making and messages transmitting legislative proposals to the Congress stating the departments’ and agencies’ conclusions on the takings issues.
(c) Executive departments and agencies shall identify each existing Federal rule and regulation against which a takings award has been made or against which a takings claim is pending including the amount of each claim or award. A “takings” award has been made or a “takings” claim pending if the award was made, or the pending claim brought, pursuant to the Just Compensation Clause of the Fifth Amendment. An itemized compilation of all such awards made in Fiscal Years 1985, 1986, and 1987 and all such pending claims shall be submitted to the Director, Office of Management and Budget, on or before May 16, 1988.
(d) Each Executive department and agency shall submit annually to the Director, Office of Management and Budget, and to the Attorney General an itemized compilation of all awards of just compensation entered against the United States for takings, including awards of interest as well as monies paid pursuant to the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601.
(e)(1) The Director, Office of Management and Budget, and the Attorney General shall each, to the extent permitted by law, take action to ensure that the policies of the Executive departments and agencies are consistent with the principles, criteria, and requirements stated in Sections 1 through 5 of this Order, and the Office of Management and Budget shall take action to ensure that all takings awards levied against agencies are properly accounted for in agency budget submissions.
(2) In addition to the guidelines required by Section 1 of this Order, the Attorney General shall, in consultation with each Executive department and agency to which this Order applies, promulgate such supplemental guidelines as may be appropriate to the specific obligations of that department or agency.
Sec. 6. Judicial Review. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

Ronald Reagan.

Ex. Ord. No. 12861. Elimination of One-Half of Executive Branch Internal Regulations
Ex. Ord. No. 12861, Sept. 11, 1993, 58 F.R. 48255, 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, and section 1111 of title 31, United States Code, and to cut 50 percent of the executive branch’s internal regulations in order to streamline and improve customer service to the American people, it is hereby ordered as follows:
Section 1. Regulatory Reductions. Each executive department and agency shall undertake to eliminate not less than 50 percent of its civilian internal management regulations that are not required by law within 3 years of the effective date of this order. An agency internal management regulation, for the purposes of this order, means an agency directive or regulation that pertains to its organization, management, or personnel matters. Reductions in agency internal management regulations shall be concentrated in areas that will result in the greatest improvement in productivity, streamlining of operations, and improvement in customer service.
Sec. 2. Coverage. This order applies to all executive branch departments and agencies.
Sec. 3. Implementation. The Director of the Office of Management and Budget shall issue instructions regarding the implementation of this order, including exemptions necessary for the delivery of essential services and compliance with applicable law.
Sec. 4. Independent Agencies. All independent regulatory commissions and agencies are requested to comply with the provisions of this order.

William J. Clinton.

Ex. Ord. No. 12866. Regulatory Planning and Review
Ex. Ord. No. 12866, Sept. 30, 1993, 58 F.R. 51735, as amended by Ex. Ord. No. 13258, Feb. 26, 2002, 67 F.R. 9385; Ex. Ord. No. 13422, Jan. 18, 2007, 72 F.R. 2763; Ex. Ord. No. 13497, § 1, Jan. 30, 2009, 74 F.R. 6113, provided:
The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today.
With this Executive order, the Federal Government begins a program to reform and make more efficient the regulatory process. The objectives of this Executive order are to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory decision-making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public. In pursuing these objectives, the regulatory process shall be conducted so as to meet applicable statutory requirements and with due regard to the discretion that has been entrusted to the Federal agencies.
Accordingly, 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. Statement of Regulatory Philosophy and Principles.
(a) The Regulatory Philosophy. Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating. Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.
(b) The Principles of Regulation. To ensure that the agencies’ regulatory programs are consistent with the philosophy set forth above, agencies should adhere to the following principles, to the extent permitted by law and where applicable:
(1) Each agency shall identify the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem.
(2) Each agency shall examine whether existing regulations (or other law) have created, or contributed to, the problem that a new regulation is intended to correct and whether those regulations (or other law) should be modified to achieve the intended goal of regulation more effectively.
(3) Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
(4) In setting regulatory priorities, each agency shall consider, to the extent reasonable, the degree and nature of the risks posed by various substances or activities within its jurisdiction.
(5) When an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the costs of enforcement and compliance (to the government, regulated entities, and the public), flexibility, distributive impacts, and equity.
(6) Each agency shall assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.
(7) Each agency shall base its decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, the intended regulation.
(8) Each agency shall identify and assess alternative forms of regulation and shall, to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt.
(9) Wherever feasible, agencies shall seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. In addition, as appropriate, agencies shall seek to harmonize Federal regulatory actions with related State, local, and tribal regulatory and other governmental functions.
(10) Each agency shall avoid regulations that are inconsistent, incompatible, or duplicative with its other regulations or those of other Federal agencies.
(11) Each agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.
(12) Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty.
Sec. 2. Organization. An efficient regulatory planning and review process is vital to ensure that the Federal Government’s regulatory system best serves the American people.
(a) The Agencies. Because Federal agencies are the repositories of significant substantive expertise and experience, they are responsible for developing regulations and assuring that the regulations are consistent with applicable law, the President’s priorities, and the principles set forth in this Executive order.
(b) The Office of Management and Budget. Coordinated review of agency rulemaking is necessary to ensure that regulations are consistent with applicable law, the President’s priorities, and the principles set forth in this Executive order, and that decisions made by one agency do not conflict with the policies or actions taken or planned by another agency. The Office of Management and Budget (OMB) shall carry out that review function. Within OMB, the Office of Information and Regulatory Affairs (OIRA) is the repository of expertise concerning regulatory issues, including methodologies and procedures that affect more than one agency, this Executive order, and the President’s regulatory policies. To the extent permitted by law, OMB shall provide guidance to agencies and assist the President, the Vice President, and other regulatory policy advisors to the President in regulatory planning and shall be the entity that reviews individual regulations, as provided by this Executive order.
(c) The Vice President. The Vice President is the principal advisor to the President on, and shall coordinate the development and presentation of recommendations concerning, regulatory policy, planning, and review, as set forth in this Executive order. In fulfilling their responsibilities under this Executive order, the President and the Vice President shall be assisted by the regulatory policy advisors within the Executive Office of the President and by such agency officials and personnel as the President and the Vice President may, from time to time, consult.
Sec. 3. Definitions. For purposes of this Executive order: (a) “Advisors” refers to such regulatory policy advisors to the President as the President and Vice President may from time to time consult, including, among others: (1) the Director of OMB; (2) the Chair (or another member) of the Council of Economic Advisers; (3) the Assistant to the President for Economic Policy; (4) the Assistant to the President for Domestic Policy; (5) the Assistant to the President for National Security Affairs; (6) the Assistant to the President for Science and Technology; (7) the Assistant to the President for Intergovernmental Affairs; (8) the Assistant to the President and Staff Secretary; (9) the Assistant to the President and Chief of Staff to the Vice President; (10) the Assistant to the President and Counsel to the President; (11) the Deputy Assistant to the President and Director of the White House Office on Environmental Policy; and (12) the Administrator of OIRA, who also shall coordinate communications relating to this Executive order among the agencies, OMB, the other Advisors, and the Office of the Vice President.
(b) “Agency,” unless otherwise indicated, means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
(c) “Director” means the Director of OMB.
(d) “Regulation” or “rule” means an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency. It does not, however, include:
(1) Regulations or rules issued in accordance with the formal rulemaking provisions of 5 U.S.C. 556, 557;
(2) Regulations or rules that pertain to a military or foreign affairs function of the United States, other than procurement regulations and regulations involving the import or export of non-defense articles and services;
(3) Regulations or rules that are limited to agency organization, management, or personnel matters; or
(4) Any other category of regulations exempted by the Administrator of OIRA.
(e) “Regulatory action” means any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.
(f) “Significant regulatory action” means any regulatory action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order.
Sec. 4. Planning Mechanism. In order to have an effective regulatory program, to provide for coordination of regulations, to maximize consultation and the resolution of potential conflicts at an early stage, to involve the public and its State, local, and tribal officials in regulatory planning, and to ensure that new or revised regulations promote the President’s priorities and the principles set forth in this Executive order, these procedures shall be followed, to the extent permitted by law: (a) Agencies’ Policy Meeting. Early in each year’s planning cycle, the Vice President shall convene a meeting of the Advisors and the heads of agencies to seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year.
(b) Unified Regulatory Agenda. For purposes of this subsection, the term “agency” or “agencies” shall also include those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10). Each agency shall prepare an agenda of all regulations under development or review, at a time and in a manner specified by the Administrator of OIRA. The description of each regulatory action shall contain, at a minimum, a regulation identifier number, a brief summary of the action, the legal authority for the action, any legal deadline for the action, and the name and telephone number of a knowledgeable agency official. Agencies may incorporate the information required under 5 U.S.C. 602 and [former] 41 U.S.C. 402 into these agendas.
(c) The Regulatory Plan. For purposes of this subsection, the term “agency” or “agencies” shall also include those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10). (1) As part of the Unified Regulatory Agenda, beginning in 1994, each agency shall prepare a Regulatory Plan (Plan) of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form in that fiscal year or thereafter. The Plan shall be approved personally by the agency head and shall contain at a minimum:
(A) A statement of the agency’s regulatory objectives and priorities and how they relate to the President’s priorities;
(B) A summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of the anticipated costs and benefits;
(C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order;
(D) A statement of the need for each such action and, if applicable, how the action will reduce risks to public health, safety, or the environment, as well as how the magnitude of the risk addressed by the action relates to other risks within the jurisdiction of the agency;
(E) The agency’s schedule for action, including a statement of any applicable statutory or judicial deadlines; and
(F) The name, address, and telephone number of a person the public may contact for additional information about the planned regulatory action.
(2) Each agency shall forward its Plan to OIRA by June 1st of each year.
(3) Within 10 calendar days after OIRA has received an agency’s Plan, OIRA shall circulate it to other affected agencies, the Advisors, and the Vice President.
(4) An agency head who believes that a planned regulatory action of another agency may conflict with its own policy or action taken or planned shall promptly notify, in writing, the Administrator of OIRA, who shall forward that communication to the issuing agency, the Advisors, and the Vice President.
(5) If the Administrator of OIRA believes that a planned regulatory action of an agency may be inconsistent with the President’s priorities or the principles set forth in this Executive order or may be in conflict with any policy or action taken or planned by another agency, the Administrator of OIRA shall promptly notify, in writing, the affected agencies, the Advisors, and the Vice President.
(6) The Vice President, with the Advisors’ assistance, may consult with the heads of agencies with respect to their Plans and, in appropriate instances, request further consideration or inter-agency coordination.
(7) The Plans developed by the issuing agency shall be published annually in the October publication of the Unified Regulatory Agenda. This publication shall be made available to the Congress; State, local, and tribal governments; and the public. Any views on any aspect of any agency Plan, including whether any planned regulatory action might conflict with any other planned or existing regulation, impose any unintended consequences on the public, or confer any unclaimed benefits on the public, should be directed to the issuing agency, with a copy to OIRA.
(d) Regulatory Working Group. Within 30 days of the date of this Executive order, the Administrator of OIRA shall convene a Regulatory Working Group (“Working Group”), which shall consist of representatives of the heads of each agency that the Administrator determines to have significant domestic regulatory responsibility, the Advisors, and the Vice President. The Administrator of OIRA shall chair the Working Group and shall periodically advise the Vice President on the activities of the Working Group. The Working Group shall serve as a forum to assist agencies in identifying and analyzing important regulatory issues (including, among others (1) the development of innovative regulatory techniques, (2) the methods, efficacy, and utility of comparative risk assessment in regulatory decision-making, and (3) the development of short forms and other streamlined regulatory approaches for small businesses and other entities). The Working Group shall meet at least quarterly and may meet as a whole or in subgroups of agencies with an interest in particular issues or subject areas. To inform its discussions, the Working Group may commission analytical studies and reports by OIRA, the Administrative Conference of the United States, or any other agency.
(e) Conferences. The Administrator of OIRA shall meet quarterly with representatives of State, local, and tribal governments to identify both existing and proposed regulations that may uniquely or significantly affect those governmental entities. The Administrator of OIRA shall also convene, from time to time, conferences with representatives of businesses, nongovernmental organizations, and the public to discuss regulatory issues of common concern.
Sec. 5. Existing Regulations. In order to reduce the regulatory burden on the American people, their families, their communities, their State, local, and tribal governments, and their industries; to determine whether regulations promulgated by the executive branch of the Federal Government have become unjustified or unnecessary as a result of changed circumstances; to confirm that regulations are both compatible with each other and not duplicative or inappropriately burdensome in the aggregate; to ensure that all regulations are consistent with the President’s priorities and the principles set forth in this Executive order, within applicable law; and to otherwise improve the effectiveness of existing regulations: (a) Within 90 days of the date of this Executive order, each agency shall submit to OIRA a program, consistent with its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified or eliminated so as to make the agency’s regulatory program more effective in achieving the regulatory objectives, less burdensome, or in greater alignment with the President’s priorities and the principles set forth in this Executive order. Any significant regulations selected for review shall be included in the agency’s annual Plan. The agency shall also identify any legislative mandates that require the agency to promulgate or continue to impose regulations that the agency believes are unnecessary or outdated by reason of changed circumstances.
(b) The Administrator of OIRA shall work with the Regulatory Working Group and other interested entities to pursue the objectives of this section. State, local, and tribal governments are specifically encouraged to assist in the identification of regulations that impose significant or unique burdens on those governmental entities and that appear to have outlived their justification or be otherwise inconsistent with the public interest.
(c) The Vice President, in consultation with the Advisors, may identify for review by the appropriate agency or agencies other existing regulations of an agency or groups of regulations of more than one agency that affect a particular group, industry, or sector of the economy, or may identify legislative mandates that may be appropriate for reconsideration by the Congress.
Sec. 6. Centralized Review of Regulations. The guidelines set forth below shall apply to all regulatory actions, for both new and existing regulations, by agencies other than those agencies specifically exempted by the Administrator of OIRA:
(a) Agency Responsibilities. (1) Each agency shall (consistent with its own rules, regulations, or procedures) provide the public with meaningful participation in the regulatory process. In particular, before issuing a notice of proposed rulemaking, each agency should, where appropriate, seek the involvement of those who are intended to benefit from and those expected to be burdened by any regulation (including, specifically, State, local, and tribal officials). In addition, each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days. Each agency also is directed to explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.
(2) Within 60 days of the date of this Executive order, each agency head shall designate a Regulatory Policy Officer who shall report to the agency head. The Regulatory Policy Officer shall be involved at each stage of the regulatory process to foster the development of effective, innovative, and least burdensome regulations and to further the principles set forth in this Executive order.
(3) In addition to adhering to its own rules and procedures and to the requirements of the Administrative Procedure Act [see Short Title note preceding section 551 of this title], the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the Paperwork Reduction Act [44 U.S.C. 3501 et seq.], and other applicable law, each agency shall develop its regulatory actions in a timely fashion and adhere to the following procedures with respect to a regulatory action:
(A) Each agency shall provide OIRA, at such times and in the manner specified by the Administrator of OIRA, with a list of its planned regulatory actions, indicating those which the agency believes are significant regulatory actions within the meaning of this Executive order. Absent a material change in the development of the planned regulatory action, those not designated as significant will not be subject to review under this section unless, within 10 working days of receipt of the list, the Administrator of OIRA notifies the agency that OIRA has determined that a planned regulation is a significant regulatory action within the meaning of this Executive order. The Administrator of OIRA may waive review of any planned regulatory action designated by the agency as significant, in which case the agency need not further comply with subsection (a)(3)(B) or subsection (a)(3)(C) of this section.
(B) For each matter identified as, or determined by the Administrator of OIRA to be, a significant regulatory action, the issuing agency shall provide to OIRA:
(i) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and
(ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate and, to the extent permitted by law, promotes the President’s priorities and avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions.
(C) For those matters identified as, or determined by the Administrator of OIRA to be, a significant regulatory action within the scope of section 3(f)(1), the agency shall also provide to OIRA the following additional information developed as part of the agency’s decision-making process (unless prohibited by law):
(i) An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;
(ii) An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs; and
(iii) An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives.
(D) In emergency situations or when an agency is obligated by law to act more quickly than normal review procedures allow, the agency shall notify OIRA as soon as possible and, to the extent practicable, comply with subsections (a)(3)(B) and (C) of this section. For those regulatory actions that are governed by a statutory or court-imposed deadline, the agency shall, to the extent practicable, schedule rulemaking proceedings so as to permit sufficient time for OIRA to conduct its review, as set forth below in subsection (b)(2) through (4) of this section.
(E) After the regulatory action has been published in the Federal Register or otherwise issued to the public, the agency shall:
(i) Make available to the public the information set forth in subsections (a)(3)(B) and (C);
(ii) Identify for the public, in a complete, clear, and simple manner, the substantive changes between the draft submitted to OIRA for review and the action subsequently announced; and
(iii) Identify for the public those changes in the regulatory action that were made at the suggestion or recommendation of OIRA.
(F) All information provided to the public by the agency shall be in plain, understandable language.
(b) OIRA Responsibilities. The Administrator of OIRA shall provide meaningful guidance and oversight so that each agency’s regulatory actions are consistent with applicable law, the President’s priorities, and the principles set forth in this Executive order and do not conflict with the policies or actions of another agency. OIRA shall, to the extent permitted by law, adhere to the following guidelines:
(1) OIRA may review only actions identified by the agency or by OIRA as significant regulatory actions under subsection (a)(3)(A) of this section.
(2) OIRA shall waive review or notify the agency in writing of the results of its review within the following time periods:
(A) For any notices of inquiry, advance notices of proposed rulemaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of submission of the draft action to OIRA;
(B) For all other regulatory actions, within 90 calendar days after the date of submission of the information set forth in subsections (a)(3)(B) and (C) of this section, unless OIRA has previously reviewed this information and, since that review, there has been no material change in the facts and circumstances upon which the regulatory action is based, in which case, OIRA shall complete its review within 45 days; and
(C) The review process may be extended (1) once by no more than 30 calendar days upon the written approval of the Director and (2) at the request of the agency head.
(3) For each regulatory action that the Administrator of OIRA returns to an agency for further consideration of some or all of its provisions, the Administrator of OIRA shall provide the issuing agency a written explanation for such return, setting forth the pertinent provision of this Executive order on which OIRA is relying. If the agency head disagrees with some or all of the bases for the return, the agency head shall so inform the Administrator of OIRA in writing.
(4) Except as otherwise provided by law or required by a Court, in order to ensure greater openness, accessibility, and accountability in the regulatory review process, OIRA shall be governed by the following disclosure requirements:
(A) Only the Administrator of OIRA (or a particular designee) shall receive oral communications initiated by persons not employed by the executive branch of the Federal Government regarding the substance of a regulatory action under OIRA review;
(B) All substantive communications between OIRA personnel and persons not employed by the executive branch of the Federal Government regarding a regulatory action under review shall be governed by the following guidelines: (i) A representative from the issuing agency shall be invited to any meeting between OIRA personnel and such person(s);
(ii) OIRA shall forward to the issuing agency, within 10 working days of receipt of the communication(s), all written communications, regardless of format, between OIRA personnel and any person who is not employed by the executive branch of the Federal Government, and the dates and names of individuals involved in all substantive oral communications (including meetings to which an agency representative was invited, but did not attend, and telephone conversations between OIRA personnel and any such persons); and
(iii) OIRA shall publicly disclose relevant information about such communication(s), as set forth below in subsection (b)(4)(C) of this section.
(C) OIRA shall maintain a publicly available log that shall contain, at a minimum, the following information pertinent to regulatory actions under review:
(i) The status of all regulatory actions, including if (and if so, when and by whom) Vice Presidential and Presidential consideration was requested;
(ii) A notation of all written communications forwarded to an issuing agency under subsection (b)(4)(B)(ii) of this section; and
(iii) The dates and names of individuals involved in all substantive oral communications, including meetings and telephone conversations, between OIRA personnel and any person not employed by the executive branch of the Federal Government, and the subject matter discussed during such communications.
(D) After the regulatory action has been published in the Federal Register or otherwise issued to the public, or after the agency has announced its decision not to publish or issue the regulatory action, OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section.
(5) All information provided to the public by OIRA shall be in plain, understandable language.
Sec. 7. Resolution of Conflicts. To the extent permitted by law, disagreements or conflicts between or among agency heads or between OMB and any agency that cannot be resolved by the Administrator of OIRA shall be resolved by the President, or by the Vice President acting at the request of the President, with the relevant agency head (and, as appropriate, other interested government officials). Vice Presidential and Presidential consideration of such disagreements may be initiated only by the Director, by the head of the issuing agency, or by the head of an agency that has a significant interest in the regulatory action at issue. Such review will not be undertaken at the request of other persons, entities, or their agents.
Resolution of such conflicts shall be informed by recommendations developed by the Vice President, after consultation with the Advisors (and other executive branch officials or personnel whose responsibilities to the President include the subject matter at issue). The development of these recommendations shall be concluded within 60 days after review has been requested.
During the Vice Presidential and Presidential review period, communications with any person not employed by the Federal Government relating to the substance of the regulatory action under review and directed to the Advisors or their staffs or to the staff of the Vice President shall be in writing and shall be forwarded by the recipient to the affected agency(ies) for inclusion in the public docket(s). When the communication is not in writing, such Advisors or staff members shall inform the outside party that the matter is under review and that any comments should be submitted in writing.
At the end of this review process, the President, or the Vice President acting at the request of the President, shall notify the affected agency and the Administrator of OIRA of the President’s decision with respect to the matter.
Sec. 8. Publication. Except to the extent required by law, an agency shall not publish in the Federal Register or otherwise issue to the public any regulatory action that is subject to review under section 6 of this Executive order until (1) the Administrator of OIRA notifies the agency that OIRA has waived its review of the action or has completed its review without any requests for further consideration, or (2) the applicable time period in section 6(b)(2) expires without OIRA having notified the agency that it is returning the regulatory action for further consideration under section 6(b)(3), whichever occurs first. If the terms of the preceding sentence have not been satisfied and an agency wants to publish or otherwise issue a regulatory action, the head of that agency may request Presidential consideration through the Vice President, as provided under section 7 of this order. Upon receipt of this request, the Vice President shall notify OIRA and the Advisors. The guidelines and time period set forth in section 7 shall apply to the publication of regulatory actions for which Presidential consideration has been sought.
Sec. 9. Agency Authority. Nothing in this order shall be construed as displacing the agencies’ authority or responsibilities, as authorized by law.
Sec. 10. Judicial Review. Nothing in this Executive order shall affect any otherwise available judicial review of agency action. This Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
Sec. 11. Revocations. Executive Orders Nos. 12291 and 12498; all amendments to those Executive orders; all guidelines issued under those orders; and any exemptions from those orders heretofore granted for any category of rule are revoked.
[Section 1 of Ex. Ord. No. 13497, which revoked Ex. Ords. 13258 and 13422, was executed by undoing the amendments by those Ex. Ords. to Ex. Ord. 12866, set out above.]

Executive Order No. 12875
Ex. Ord. No. 12875, Oct. 26, 1993, 58 F.R. 58093, which provided for the reduction of unfunded mandates on State, local, or tribal governments and increased flexibility for State and local waivers of statutory or regulatory requirements, was revoked by Ex. Ord. No. 13132, § 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Executive Order No. 13083
Ex. Ord. No. 13083, May 14, 1998, 63 F.R. 27651, which listed fundamental federalism principles and federalism policymaking criteria to guide agencies in formulating and implementing policies and required agencies to have a process to permit State and local governments to provide input into the development of regulatory policies that have federalism implications and to streamline the State and local government waiver process, was revoked by Ex. Ord. No. 13132, § 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Executive Order No. 13095
Ex. Ord. No. 13095, Aug. 5, 1998, 63 F.R. 42565, which suspended Ex. Ord. No. 13083, was revoked by Ex. Ord. No. 13132, § 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Ex. Ord. No. 13107. Implementation of Human Rights Treaties
Ex. Ord. No. 13107, Dec. 10, 1998, 63 F.R. 68991, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and bearing in mind the obligations of the United States pursuant to the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and other relevant treaties concerned with the protection and promotion of human rights to which the United States is now or may become a party in the future, it is hereby ordered as follows:
Section 1. Implementation of Human Rights Obligations. (a) It shall be the policy and practice of the Government of the United States, being committed to the protection and promotion of human rights and fundamental freedoms, fully to respect and implement its obligations under the international human rights treaties to which it is a party, including the ICCPR, the CAT, and the CERD.
(b) It shall also be the policy and practice of the Government of the United States to promote respect for international human rights, both in our relationships with all other countries and by working with and strengthening the various international mechanisms for the promotion of human rights, including, inter alia, those of the United Nations, the International Labor Organization, and the Organization of American States.
Sec. 2. Responsibility of Executive Departments and Agencies. (a) All executive departments and agencies (as defined in 5 U.S.C. 101–105, including boards and commissions, and hereinafter referred to collectively as “agency” or “agencies”) shall maintain a current awareness of United States international human rights obligations that are relevant to their functions and shall perform such functions so as to respect and implement those obligations fully. The head of each agency shall designate a single contact officer who will be responsible for overall coordination of the implementation of this order. Under this order, all such agencies shall retain their established institutional roles in the implementation, interpretation, and enforcement of Federal law and policy.
(b) The heads of agencies shall have lead responsibility, in coordination with other appropriate agencies, for questions concerning implementation of human rights obligations that fall within their respective operating and program responsibilities and authorities or, to the extent that matters do not fall within the operating and program responsibilities and authorities of any agency, that most closely relate to their general areas of concern.
Sec. 3. Human Rights Inquiries and Complaints. Each agency shall take lead responsibility, in coordination with other appropriate agencies, for responding to inquiries, requests for information, and complaints about violations of human rights obligations that fall within its areas of responsibility or, if the matter does not fall within its areas of responsibility, referring it to the appropriate agency for response.
Sec. 4. Interagency Working Group on Human Rights Treaties. (a) There is hereby established an Interagency Working Group on Human Rights Treaties for the purpose of providing guidance, oversight, and coordination with respect to questions concerning the adherence to and implementation of human rights obligations and related matters.
(b) The designee of the Assistant to the President for National Security Affairs shall chair the Interagency Working Group, which shall consist of appropriate policy and legal representatives at the Assistant Secretary level from the Department of State, the Department of Justice, the Department of Labor, the Department of Defense, the Joint Chiefs of Staff, and other agencies as the chair deems appropriate. The principal members may designate alternates to attend meetings in their stead.
(c) The principal functions of the Interagency Working Group shall include:
(i) coordinating the interagency review of any significant issues concerning the implementation of this order and analysis and recommendations in connection with pursuing the ratification of human rights treaties, as such questions may from time to time arise;
(ii) coordinating the preparation of reports that are to be submitted by the United States in fulfillment of treaty obligations;
(iii) coordinating the responses of the United States Government to complaints against it concerning alleged human rights violations submitted to the United Nations, the Organization of American States, and other international organizations;
(iv) developing effective mechanisms to ensure that legislation proposed by the Administration is reviewed for conformity with international human rights obligations and that these obligations are taken into account in reviewing legislation under consideration by the Congress as well;
(v) developing recommended proposals and mechanisms for improving the monitoring of the actions by the various States, Commonwealths, and territories of the United States and, where appropriate, of Native Americans and Federally recognized Indian tribes, including the review of State, Commonwealth, and territorial laws for their conformity with relevant treaties, the provision of relevant information for reports and other monitoring purposes, and the promotion of effective remedial mechanisms;
(vi) developing plans for public outreach and education concerning the provisions of the ICCPR, CAT, CERD, and other relevant treaties, and human rights-related provisions of domestic law;
(vii) coordinating and directing an annual review of United States reservations, declarations, and understandings to human rights treaties, and matters as to which there have been nontrivial complaints or allegations of inconsistency with or breach of international human rights obligations, in order to determine whether there should be consideration of any modification of relevant reservations, declarations, and understandings to human rights treaties, or United States practices or laws. The results and recommendations of this review shall be reviewed by the head of each participating agency;
(viii) making such other recommendations as it shall deem appropriate to the President, through the Assistant to the President for National Security Affairs, concerning United States adherence to or implementation of human rights treaties and related matters; and
(ix) coordinating such other significant tasks in connection with human rights treaties or international human rights institutions, including the Inter-American Commission on Human Rights and the Special Rapporteurs and complaints procedures established by the United Nations Human Rights Commission.
(d) The work of the Interagency Working Group shall not supplant the work of other interagency entities, including the President’s Committee on the International Labor Organization, that address international human rights issues.
Sec. 5. Cooperation Among Executive Departments and Agencies. All agencies shall cooperate in carrying out the provisions of this order. The Interagency Working Group shall facilitate such cooperative measures.
Sec. 6. Judicial Review, Scope, and Administration. (a) Nothing in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
(b) This order does not supersede Federal statutes and does not impose any justiciable obligations on the executive branch.
(c) The term “treaty obligations” shall mean treaty obligations as approved by the Senate pursuant to Article II, section 2, clause 2 of the United States Constitution.
(d) To the maximum extent practicable and subject to the availability of appropriations, agencies shall carry out the provisions of this order.

William J. Clinton.

Ex. Ord. No. 13132. Federalism
Ex. Ord. No. 13132, Aug. 4, 1999, 64 F.R. 43255, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guarantee the division of governmental responsibilities between the national government and the States that was intended by the Framers of the Constitution, to ensure that the principles of federalism established by the Framers guide the executive departments and agencies in the formulation and implementation of policies, and to further the policies of the Unfunded Mandates Reform Act [of 1995, Pub. L. 104–4, see Tables for classification], it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) “Policies that have federalism implications” refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(b) “State” or “States” refer to the States of the United States of America, individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions established by the States.
(c) “Agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) “State and local officials” means elected officials of State and local governments or their representative national organizations.
Sec. 2. Fundamental Federalism Principles. In formulating and implementing policies that have federalism implications, agencies shall be guided by the following fundamental federalism principles:
(a) Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people.
(b) The people of the States created the national government and delegated to it enumerated governmental powers. All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or to the people.
(c) The constitutional relationship among sovereign governments, State and national, is inherent in the very structure of the Constitution and is formalized in and protected by the Tenth Amendment to the Constitution.
(d) The people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the moral, political, and legal character of their lives.
(e) The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy.
(f) The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to public issues. One-size-fits-all approaches to public policy problems can inhibit the creation of effective solutions to those problems.
(g) Acts of the national government—whether legislative, executive, or judicial in nature—that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.
(h) Policies of the national government should recognize the responsibility of—and should encourage opportunities for—individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort.
(i) The national government should be deferential to the States when taking action that affects the policymaking discretion of the States and should act only with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government.
Sec. 3. Federalism Policymaking Criteria. In addition to adhering to the fundamental federalism principles set forth in section 2, agencies shall adhere, to the extent permitted by law, to the following criteria when formulating and implementing policies that have federalism implications:
(a) There shall be strict adherence to constitutional principles. Agencies shall closely examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and shall carefully assess the necessity for such action. To the extent practicable, State and local officials shall be consulted before any such action is implemented. Executive Order 12372 of July 14, 1982 (“Intergovernmental Review of Federal Programs”) [31 U.S.C. 6506 note] remains in effect for the programs and activities to which it is applicable.
(b) National action limiting the policymaking discretion of the States shall be taken only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance. Where there are significant uncertainties as to whether national action is authorized or appropriate, agencies shall consult with appropriate State and local officials to determine whether Federal objectives can be attained by other means.
(c) With respect to Federal statutes and regulations administered by the States, the national government shall grant the States the maximum administrative discretion possible. Intrusive Federal oversight of State administration is neither necessary nor desirable.
(d) When undertaking to formulate and implement policies that have federalism implications, agencies shall:
(1) encourage States to develop their own policies to achieve program objectives and to work with appropriate officials in other States;
(2) where possible, defer to the States to establish standards;
(3) in determining whether to establish uniform national standards, consult with appropriate State and local officials as to the need for national standards and any alternatives that would limit the scope of national standards or otherwise preserve State prerogatives and authority; and
(4) where national standards are required by Federal statutes, consult with appropriate State and local officials in developing those standards.
Sec. 4. Special Requirements for Preemption. Agencies, in taking action that preempts State law, shall act in strict accordance with governing law.
(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.
(b) Where a Federal statute does not preempt State law (as addressed in subsection (a) of this section), agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.
(c) Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.
(d) When an agency foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.
(e) When an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.
Sec. 5. Special Requirements for Legislative Proposals. Agencies shall not submit to the Congress legislation that would:
(a) directly regulate the States in ways that would either interfere with functions essential to the States’ separate and independent existence or be inconsistent with the fundamental federalism principles in section 2;
(b) attach to Federal grants conditions that are not reasonably related to the purpose of the grant; or
(c) preempt State law, unless preemption is consistent with the fundamental federalism principles set forth in section 2, and unless a clearly legitimate national purpose, consistent with the federalism policymaking criteria set forth in section 3, cannot otherwise be met.
Sec. 6. Consultation.
(a) Each agency shall have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. Within 90 days after the effective date of this order, the head of each agency shall designate an official with principal responsibility for the agency’s implementation of this order and that designated official shall submit to the Office of Management and Budget a description of the agency’s consultation process.
(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the regulation,
(A) consulted with State and local officials early in the process of developing the proposed regulation;
(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency’s prior consultation with State and local officials, a summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and
(C) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.
(c) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications and that preempts State law, unless the agency, prior to the formal promulgation of the regulation,
(1) consulted with State and local officials early in the process of developing the proposed regulation;
(2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency’s prior consultation with State and local officials, a summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and
(3) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.
Sec. 7. Increasing Flexibility for State and Local Waivers.
(a) Agencies shall review the processes under which State and local governments apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by law, consider any application by a State for a waiver of statutory or regulatory requirements in connection with any program administered by that agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the State or local level in cases in which the proposed waiver is consistent with applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency. If the application for a waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.
Sec. 8. Accountability.
(a) In transmitting any draft final regulation that has federalism implications to the Office of Management and Budget pursuant to Executive Order 12866 of September 30, 1993 [set out above], each agency shall include a certification from the official designated to ensure compliance with this order stating that the requirements of this order have been met in a meaningful and timely manner.
(b) In transmitting proposed legislation that has federalism implications to the Office of Management and Budget, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant requirements of this order have been met.
(c) Within 180 days after the effective date of this order, the Director of the Office of Management and Budget and the Assistant to the President for Intergovernmental Affairs shall confer with State and local officials to ensure that this order is being properly and effectively implemented.
Sec. 9. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.
Sec. 10. General Provisions.
(a) This order shall supplement but not supersede the requirements contained in Executive Order 12372 (“Intergovernmental Review of Federal Programs”) [31 U.S.C. 6506 note], Executive Order 12866 (“Regulatory Planning and Review”) [set out above], Executive Order 12988 (“Civil Justice Reform” [28 U.S.C. 519 note]), and OMB Circular A–19.
(b) Executive Order 12612 (“Federalism”), Executive Order 12875 (“Enhancing the Intergovernmental Partnership”), Executive Order 13083 (“Federalism”), and Executive Order 13095 (“Suspension of Executive Order 13083”) are revoked.
(c) This order shall be effective 90 days after the date of this order.
Sec. 11. Judicial Review. This order is intended only to improve the internal management of the executive branch, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

William J. Clinton.

Ex. Ord. No. 13198. Agency Responsibilities With Respect to Faith-Based and Community Initiatives
Ex. Ord. No. 13198, Jan. 29, 2001, 66 F.R. 8497, as amended by Ex. Ord. No. 13831, § 2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, § 5(a), Feb. 14, 2021, 86 F.R. 10008, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet social needs in America’s communities, it is hereby ordered as follows:
Section 1. Establishment of Executive Department Centers for Faith-Based and Neighborhood Partnerships. (a) The Attorney General, the Secretary of Education, the Secretary of Labor, the Secretary of Health and Human Services, and the Secretary of Housing and Urban Development shall each establish within their respective departments a Center for Faith-Based and Neighborhood Partnerships (Center).
(b) Each executive department Center shall be supervised by a Director, appointed by the department head in consultation with the White House Office of Faith-Based and Neighborhood Partnerships (White House Office of Faith-Based and Neighborhood Partnerships).
(c) Each department shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.
(d) Each department’s Center shall begin operations no later than 45 days from the date of this order.
Sec. 2. Purpose of Executive Department Centers for Faith-Based and Neighborhood Partnerships. The purpose of the executive department Centers will be to coordinate department efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services.
Sec. 3. Responsibilities of Executive Department Centers for Faith-Based and Neighborhood Partnerships. Each Center shall, to the extent permitted by law: (a) conduct, in coordination with the White House Office of Faith-Based and Neighborhood Partnerships, a department-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social services by the department, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;
(b) coordinate a comprehensive departmental effort to incorporate faith-based and other community organizations in department programs and initiatives to the greatest extent possible;
(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;
(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and
(e) develop and coordinate department outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other department initiatives, including but not limited to Web and Internet resources.
Sec. 4. Additional Responsibilities of the Department of Health and Human Services and the Department of Labor Centers. In addition to those responsibilities described in section 3 of this order, the Department of Health and Human Services and the Department of Labor Centers shall, to the extent permitted by law: (a) conduct a comprehensive review of policies and practices affecting existing funding streams governed by so-called “Charitable Choice” legislation to assess the department’s compliance with the requirements of Charitable Choice; and (b) promote and ensure compliance with existing Charitable Choice legislation by the department, as well as its partners in State and local government, and their contractors.
Sec. 5. Reporting Requirements. (a) Report. Not later than 180 days after the date of this order and annually thereafter, each of the five executive department Centers described in section 1 of this order shall prepare and submit a report to the White House Office of Faith-Based and Neighborhood Partnerships.
(b) Contents. The report shall include a description of the department’s efforts in carrying out its responsibilities under this order, including but not limited to:
(1) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and
(2) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the department and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.
(c) Performance Indicators. The first report, filed 180 days after the date of this order, shall include annual performance indicators and measurable objectives for department action. Each report filed thereafter shall measure the department’s performance against the objectives set forth in the initial report.
Sec. 6. Responsibilities of All Executive Departments and Agencies. All executive departments and agencies (agencies) shall: (a) designate an agency employee to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and
(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.
Sec. 7. Administration and Judicial Review. (a) The agencies’ actions directed by this Executive Order shall be carried out subject to the availability of appropriations and to the extent permitted by law.
(b) This order does not create any right or benefit, substantive or procedural, enforceable at law or equity against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Ex. Ord. No. 13272. Proper Consideration of Small Entities in Agency Rulemaking
Ex. Ord. No. 13272, Aug. 13, 2002, 67 F.R. 53461, 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. General Requirements. Each agency shall establish procedures and policies to promote compliance with the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.) (the “Act”). Agencies shall thoroughly review draft rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the Act. The Chief Counsel for Advocacy of the Small Business Administration (Advocacy) shall remain available to advise agencies in performing that review consistent with the provisions of the Act.
Sec. 2. Responsibilities of Advocacy. Consistent with the requirements of the Act, other applicable law, and Executive Order 12866 of September 30, 1993, as amended [set out above], Advocacy:
(a) shall notify agency heads from time to time of the requirements of the Act, including by issuing notifications with respect to the basic requirements of the Act within 90 days of the date of this order;
(b) shall provide training to agencies on compliance with the Act; and
(c) may provide comment on draft rules to the agency that has proposed or intends to propose the rules and to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OIRA).
Sec. 3. Responsibilities of Federal Agencies. Consistent with the requirements of the Act and applicable law, agencies shall:
(a) Within 180 days of the date of this order, issue written procedures and policies, consistent with the Act, to ensure that the potential impacts of agencies’ draft rules on small businesses, small governmental jurisdictions, and small organizations are properly considered during the rulemaking process. Agency heads shall submit, no later than 90 days from the date of this order, their written procedures and policies to Advocacy for comment. Prior to issuing final procedures and policies, agencies shall consider any such comments received within 60 days from the date of the submission of the agencies’ procedures and policies to Advocacy. Except to the extent otherwise specifically provided by statute or Executive Order, agencies shall make the final procedures and policies available to the public through the Internet or other easily accessible means;
(b) Notify Advocacy of any draft rules that may have a significant economic impact on a substantial number of small entities under the Act. Such notifications shall be made (i) when the agency submits a draft rule to OIRA under Executive Order 12866 [set out above] if that order requires such submission, or (ii) if no submission to OIRA is so required, at a reasonable time prior to publication of the rule by the agency; and
(c) Give every appropriate consideration to any comments provided by Advocacy regarding a draft rule. Consistent with applicable law and appropriate protection of executive deliberations and legal privileges, an agency shall include, in any explanation or discussion accompanying publication in the Federal Register of a final rule, the agency’s response to any written comments submitted by Advocacy on the proposed rule that preceded the final rule; provided, however, that such inclusion is not required if the head of the agency certifies that the public interest is not served thereby. Agencies and Advocacy may, to the extent permitted by law, engage in an exchange of data and research, as appropriate, to foster the purposes of the Act.
Sec. 4. Definitions. Terms defined in section 601 of title 5, United States Code, including the term “agency,” shall have the same meaning in this order.
Sec. 5. Preservation of Authority. Nothing in this order shall be construed to impair or affect the authority of the Administrator of the Small Business Administration to supervise the Small Business Administration as provided in the first sentence of section 2(b)(1) of Public Law 85–09536 [Pub. L. 85–536] (15 U.S.C. 633(b)(1)).
Sec. 6. Reporting. For the purpose of promoting compliance with this order, Advocacy shall submit a report not less than annually to the Director of the Office of Management and Budget on the extent of compliance with this order by agencies.
Sec. 7. Confidentiality. Consistent with existing law, Advocacy may publicly disclose information that it receives from the agencies in the course of carrying out this order only to the extent that such information already has been lawfully and publicly disclosed by OIRA or the relevant rulemaking agency.
Sec. 8. Judicial Review. This order is intended only to improve the internal management of the Federal Government. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

George W. Bush.

Ex. Ord. No. 13279. Equal Protection of the Laws for Faith-Based and Other Neighborhood Organizations
Ex. Ord. No. 13279, Dec. 12, 2002, 67 F.R. 77141, as amended by Ex. Ord. No. 13403, § 2, May 12, 2006, 71 F.R. 28543; Ex. Ord. No. 13559, Nov. 17, 2010, 75 F.R. 71319; Ex. Ord. No. 13831, § 2, May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, § 5(a), Feb. 14, 2021, 86 F.R. 10008, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 121(a) of title 40, United States Code, and section 301 of title 3, United States Code, and in order to guide Federal agencies in formulating and developing policies with implications for faith-based organizations and other other [sic] neighborhood organizations, to ensure equal protection of the laws for faith-based and other neighborhood organizations, to further the national effort to expand opportunities for, and strengthen the capacity of, faith-based and other other [sic] neighborhood organizations so that they may better meet social needs in America’s communities, and to ensure the economical and efficient administration and completion of Government contracts, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) “Federal financial assistance” means assistance that non-Federal entities receive or administer in the form of grants, contracts, loans, loan guarantees, property, cooperative agreements, food commodities, direct appropriations, or other assistance, but does not include a tax credit, deduction, or exemption.
(b) “Social service program” means a program that is administered by the Federal Government, or by a State or local government using Federal financial assistance, and that provides services directed at reducing poverty, improving opportunities for low-income children, revitalizing low-income communities, empowering low-income families and low-income individuals to become self-sufficient, or otherwise helping people in need. Such programs include, but are not limited to, the following:
(i) child care services, protective services for children and adults, services for children and adults in foster care, adoption services, services related to the management and maintenance of the home, day care services for adults, and services to meet the special needs of children, older individuals, and individuals with disabilities (including physical, mental, or emotional disabilities);
(ii) transportation services;
(iii) job training and related services, and employment services;
(iv) information, referral, and counseling services;
(v) the preparation and delivery of meals and services related to soup kitchens or food banks;
(vi) health support services;
(vii) literacy and mentoring programs;
(viii) services for the prevention and treatment of juvenile delinquency and substance abuse, services for the prevention of crime and the provision of assistance to the victims and the families of criminal offenders, and services related to intervention in, and prevention of, domestic violence; and
(ix) services related to the provision of assistance for housing under Federal law.
(c) “Policies that have implications for faith-based and other neighborhood organizations” refers to all policies, programs, and regulations, including official guidance and internal agency procedures, that have significant effects on faith-based organizations participating in or seeking to participate in social service programs supported with Federal financial assistance.
(d) “Agency” means a department or agency in the executive branch.
(e) “Specified agency heads” means:
(i) the Attorney General;
(ii) the Secretary of Agriculture;
(iii) the Secretary of Commerce;
(iv) the Secretary of Labor;
(v) the Secretary of Health and Human Services;
(vi) the Secretary of Housing and Urban Development;
(vii) the Secretary of Education;
(viii) the Secretary of Veterans Affairs;
(ix) the Secretary of Homeland Security;
(x) the Administrator of the Environmental Protection Agency;
(xi) the Administrator of the Small Business Administration;
(xii) the Administrator of the United States Agency for International Development; and
(xiii) the Chief Executive Officer of the Corporation for National and Community Service.
Sec. 2. Fundamental Principles. In formulating and implementing policies that have implications for faith-based and other neighborhood organizations, agencies that administer social service programs or that support (including through prime awards or sub-awards) social service programs with Federal financial assistance shall, to the extent permitted by law, be guided by the following fundamental principles:
(a) Federal financial assistance for social service programs should be distributed in the most effective and efficient manner possible.
(b) The Nation’s social service capacity will benefit if all eligible organizations, including faith-based and other neighborhood organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs.
(c) No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.
(d) All organizations that receive Federal financial assistance under social service programs should be prohibited from discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.
(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, as well as other applicable law, and must monitor and enforce standards regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities.
(f) Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance (including through prime awards or sub-awards), separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.
(g) Faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in question, or religious character. Accordingly, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance that it receives (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law. Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other chartering or governing documents.
(h) To promote transparency and accountability, agencies that provide Federal financial assistance for social service programs shall post online, in an easily accessible manner, regulations, guidance documents, and policies that reflect or elaborate upon the fundamental principles described in this section. Agencies shall also post online a list of entities that receive Federal financial assistance for provision of social service programs, consistent with law and pursuant to guidance set forth in paragraph (c) of section 3 of this order.
(i) Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof.
Sec. 3. Ensuring Uniform Implementation Across the Federal Government. In order to promote uniformity in agencies’ policies that have implications for faith-based and other neighborhood organizations and in related guidance, and to ensure that those policies and guidance are consistent with the fundamental principles set forth in section 2 of this order, there is established an Interagency Working Group on Faith-Based and Other Neighborhood Partnerships (Working Group).
(a) Mission and Function of the Working Group. The Working Group shall meet periodically to review and evaluate existing agency regulations, guidance documents, and policies that have implications for faith-based and other neighborhood organizations. Where appropriate, specified agency heads shall, to the extent permitted by law, amend all such existing policies of their respective agencies to ensure that they are consistent with the fundamental principles set forth in section 2 of this order.
(b) Uniform Agency Implementation. Within 120 days of the date of this order, the Working Group shall submit a report to the President on amendments, changes, or additions that are necessary to ensure that regulations and guidance documents associated with the distribution of Federal financial assistance for social service programs are consistent with the fundamental principles set forth in section 2 of this order. The Working Group’s report should include, but not be limited to, a model set of regulations and guidance documents for agencies to adopt in the following areas:
(i) prohibited uses of direct Federal financial assistance and separation requirements; (ii) protections for religious identity; (iii) the distinction between “direct” and “indirect” Federal financial assistance; (iv) protections for beneficiaries of social service programs; (v) transparency requirements, consistent with and in furtherance of existing open government initiatives; (vi) obligations of nongovernmental and governmental intermediaries; (vii) instructions for peer reviewers and those who recruit peer reviewers; and (viii) training on these matters for government employees and for Federal, State, and local governmental and nongovernmental organizations that receive Federal financial assistance under social service programs. In developing this report and in reviewing agency regulations and guidance for consistency with section 2 of this order, the Working Group shall consult the March 2010 report and recommendations prepared by the President’s Advisory Council on Faith-Based and Neighborhood Partnerships on the topic of reforming the White House Office of Faith-Based and Neighborhood Partnerships.
(c) Guidance. The Director of the Office of Management and Budget (OMB), following receipt of a copy of the report of the Working Group, and in coordination with the Department of Justice, shall issue guidance to agencies on the implementation of this order, including in particular subsections 2(h)–(j).
(d) Membership of the Working Group. The Director of the White House Office of Faith-Based and Neighborhood Partnerships and a senior official from the OMB designated by the Director of the OMB shall serve as the Co-Chairs of the Working Group. The Co-Chairs shall convene regular meetings of the Working Group, determine its agenda, and direct its work. In addition to the Co-Chairs, the Working Group shall consist of a senior official with knowledge of policies that have implications for faith-based and other neighborhood organizations from the following agencies and offices:
(i) the Department of State;
(ii) the Department of Justice;
(iii) the Department of the Interior;
(iv) the Department of Agriculture;
(v) the Department of Commerce;
(vi) the Department of Labor;
(vii) the Department of Health and Human Services;
(viii) the Department of Housing and Urban Development;
(ix) the Department of Education;
(x) the Department of Veterans Affairs;
(xi) the Department of Homeland Security;
(xii) the Environmental Protection Agency;
(xiii) the Small Business Administration;
(xiv) the United States Agency for International Development;
(xv) the Corporation for National and Community Service; and
(xvi) other agencies and offices as the President, from time to time, may designate.
(e) Administration of the Initiative. The Department of Health and Human Services shall provide funding and administrative support for the Working Group to the extent permitted by law and within existing appropriations.
Sec. 4. Amendment of Executive Order 11246.
Pursuant to section 121(a) of title 40, United States Code, and section 301 of title 3, United States Code, and in order to further the strong Federal interest in ensuring that the cost and progress of Federal procurement contracts are not adversely affected by an artificial restriction of the labor pool caused by the unwarranted exclusion of faith-based organizations from such contracts, section 204 of Executive Order 11246 of September 24, 1965, as amended, [42 U.S.C. 2000e note] is hereby further amended to read as follows:
“SEC. 204 (a) The Secretary of Labor may, when the Secretary deems that special circumstances in the national interest so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order.

(b) The Secretary of Labor may, by rule or regulation, exempt certain classes of contracts, subcontracts, or purchase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified tier.

(c) Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.

(d) The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor that are in all respects separate and distinct from activities of the contractor related to the performance of the contract: provided, that such an exemption will not interfere with or impede the effectuation of the purposes of this Order: and provided further, that in the absence of such an exemption all facilities shall be covered by the provisions of this Order.”

Sec. 5. General Provisions.
(a) This order supplements but does not supersede the requirements contained in Executive Orders 13198 [set out above] and 13199 [3 U.S.C. note prec. 101] of January 29, 2001.
(b) The agencies shall coordinate with the White House Office of Faith-Based and Neighborhood Partnerships concerning the implementation of this order.
(c) Nothing in this order shall be construed to require an agency to take any action that would impair the conduct of foreign affairs or the national security.
Sec. 6. Responsibilities of Executive Departments and Agencies. All executive departments and agencies (agencies) shall:
(a) designate an agency employee to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and
(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.
Sec. 7. Judicial Review.
This order is intended only to improve the internal management of the executive branch, and it is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, or entities, its officers, employees or agents, or any person.

Ex. Ord. No. 13280. Responsibilities of the Department of Agriculture and the Agency for International Development With Respect to Faith-Based and Community Initiatives
Ex. Ord. No. 13280, Dec. 12, 2002, 67 F.R. 77145, as amended by Ex. Ord. No. 13831, § 2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, § 5(a), Feb. 14, 2021, 86 F.R. 10008, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet social needs in America’s communities, it is hereby ordered as follows:
Section 1. Establishment of Centers for Faith-Based and Neighborhood Partnerships at the Department of Agriculture and the Agency for International Development. (a) The Secretary of Agriculture and the Administrator of the Agency for International Development shall each establish within their respective agencies a Center for Faith-Based and Neighborhood Partnerships (Center).
(b) Each of these Centers shall be supervised by a Director, appointed by the agency head in consultation with the White House Office of Faith-Based and Neighborhood Partnerships (White House Office of Faith-Based and Neighborhood Partnerships).
(c) Each agency shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.
(d) Each Center shall begin operations no later than 45 days from the date of this order.
Sec. 2. Purpose of Executive Branch Centers for Faith-Based and Neighborhood Partnerships. The purpose of the agency Centers will be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services.
Sec. 3. Responsibilities of the Centers for Faith-Based and Neighborhood Partnerships. Each Center shall, to the extent permitted by law:
(a) conduct, in coordination with the White House Office of Faith-Based and Neighborhood Partnerships, an agency-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social services by the agency, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;
(b) coordinate a comprehensive agency effort to incorporate faith-based and other community organizations in agency programs and initiatives to the greatest extent possible;
(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;
(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and
(e) develop and coordinate agency outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other agency initiatives, including but not limited to Web and Internet resources.
Sec. 4. Reporting Requirements.
(a) Report. Not later than 180 days from the date of this order and annually thereafter, each of the two Centers described in section 1 of this order shall prepare and submit a report to the White House Office of Faith-Based and Neighborhood Partnerships.
(b) Contents. The report shall include a description of the agency’s efforts in carrying out its responsibilities under this order, including but not limited to:
(i) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and
(ii) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.
(c) Performance Indicators. The first report, filed 180 days after the date of this order, shall include annual performance indicators and measurable objectives for agency action. Each report filed thereafter shall measure the agency’s performance against the objectives set forth in the initial report.
Sec. 5. Responsibilities of the Secretary of Agriculture and the Administrator of the Agency for International Development. The Secretary and the Administrator shall:
(a) designate an employee within their respective agencies to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and
(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.
Sec. 6. Administration and Judicial Review. (a) The agency actions directed by this executive order shall be carried out subject to the availability of appropriations and to the extent permitted by law.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, or entities, its officers, employees or agents, or any other person.

Ex. Ord. No. 13342. Responsibilities of the Departments of Commerce and Veterans Affairs and the Small Business Administration With Respect to Faith-Based and Community Initiatives
Ex. Ord. No. 13342, June 1, 2004, 69 F.R. 31509, as amended by Ex. Ord. No. 13831, § 2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, § 5(a), Feb. 14, 2021, 86 F.R. 10008, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet America’s social and community needs, it is hereby ordered as follows:
Section 1. Establishment of Centers for Faith-Based and Neighborhood Partnerships at the Departments of Commerce and Veterans Affairs and the Small Business Administration.
(a) The Secretaries of Commerce and Veterans Affairs and the Administrator of the Small Business Administration shall each establish within their respective agencies a Center for Faith-Based and Neighborhood Partnerships (Center).
(b) Each of these Centers shall be supervised by a Director, appointed by the agency head in consultation with the White House Office of Faith-Based and Neighborhood Partnerships (White House Office of Faith-Based and Neighborhood Partnerships).
(c) Each agency shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.
(d) Each Center shall begin operations no later than 45 days from the date of this order.
Sec. 2. Purpose of Executive Branch Centers for Faith-Based and Neighborhood Partnerships. The purpose of the agency Centers will be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social and community services.
Sec. 3. Responsibilities of the Centers for Faith-Based and Neighborhood Partnerships. Each Center shall, to the extent permitted by law:
(a) conduct, in coordination with the White House Office of Faith-Based and Neighborhood Partnerships, an agency-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social and community services by the agency, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;
(b) coordinate a comprehensive agency effort to incorporate faith-based and other community organizations in agency programs and initiatives to the greatest extent possible;
(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;
(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and
(e) develop and coordinate agency outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other agency initiatives, including but not limited to Web and Internet resources.
Sec. 4. Reporting Requirements. (a) Report. Not later than 180 days from the date of this order and annually thereafter, each of the three Centers described in section 1 of this order shall prepare and submit a report to the President through the White House Office of Faith-Based and Neighborhood Partnerships.
(b) Contents. The report shall include a description of the agency’s efforts in carrying out its responsibilities under this order, including but not limited to:
(i) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social and community services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and
(ii) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.
(c) Performance Indicators. The first report, filed pursuant to section 4(a) of this order, shall include annual performance indicators and measurable objectives for agency action. Each report filed thereafter shall measure the agency’s performance against the objectives set forth in the initial report.
Sec. 5. Responsibilities of the Secretaries of Commerce and Veterans Affairs and the Administrator of the Small Business Administration. The Secretaries and the Administrator shall:
(a) designate an employee within their respective agencies to serve as the liaison and point of contact with the White House Office of Faith-Based and Neighborhood Partnerships; and
(b) cooperate with the White House Office of Faith-Based and Neighborhood Partnerships and provide such information, support, and assistance to the White House Office of Faith-Based and Neighborhood Partnerships as it may request, to the extent permitted by law.
Sec. 6. Administration and Judicial Review. (a) The agency actions directed by this executive order shall be carried out subject to the availability of appropriations and to the extent permitted by law.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person.

Ex. Ord. No. 13397. Responsibilities of the Department of Homeland Security With Respect to Faith-Based and Community Initiatives
Ex. Ord. No. 13397, Mar. 7, 2006, 71 F.R. 12275, as amended by Ex. Ord. No. 13831, § 2(a), May 3, 2018, 83 F.R. 20715; Ex. Ord. No. 14015, § 5, Feb. 14, 2021, 86 F.R. 10008, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to help the Federal Government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet America’s social and community needs, it is hereby ordered as follows:
Section 1. Establishment of a Center for Faith-Based and Neighborhood Partnerships at the Department of Homeland Security.
(a) The Secretary of Homeland Security (Secretary) shall establish within the Department of Homeland Security (Department) a Center for Faith-Based and Neighborhood Partnerships (Center).
(b) The Center shall be supervised by a Director appointed by [the] Secretary. The Secretary shall consult with the Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships (Executive Director) prior to making such appointment.
(c) The Department shall provide the Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.
(d) The Center shall begin operations no later than 45 days from the date of this order.
Sec. 2. Purpose of Center. The purpose of the Center shall be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social and community services.
Sec. 3. Responsibilities of the Center for Faith-Based and Neighborhood Partnerships. In carrying out the purpose set forth in section 2 of this order, the Center shall:
(a) conduct, in coordination with the Executive Director, a department-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social and community services by the Department, including but not limited to regulations, rules, orders, procurement, and other internal policies and practices, and outreach activities that unlawfully discriminate against, or otherwise discourage or disadvantage the participation of faith-based and other community organizations in Federal programs;
(b) coordinate a comprehensive departmental effort to incorporate faith-based and other community organizations in Department programs and initiatives to the greatest extent possible;
(c) propose initiatives to remove barriers identified pursuant to section 3(a) of this order, including but not limited to reform of regulations, procurement, and other internal policies and practices, and outreach activities;
(d) propose the development of innovative pilot and demonstration programs to increase the participation of faith-based and other community organizations in Federal as well as State and local initiatives; and
(e) develop and coordinate Departmental outreach efforts to disseminate information more effectively to faith-based and other community organizations with respect to programming changes, contracting opportunities, and other agency initiatives, including but not limited to Web and Internet resources.
Sec. 4. Reporting Requirements.
(a) Report. Not later than 180 days from the date of this order and annually thereafter, the Center shall prepare and submit a report to the Executive Director.
(b) Contents. The report shall include a description of the Department’s efforts in carrying out its responsibilities under this order, including but not limited to:
(i) a comprehensive analysis of the barriers to the full participation of faith-based and other community organizations in the delivery of social and community services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and
(ii) a summary of the technical assistance and other information that will be available to faith-based and other community organizations regarding the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.
(c) Performance Indicators. The first report shall include annual performance indicators and measurable objectives for Departmental action. Each report filed thereafter shall measure the Department’s performance against the objectives set forth in the initial report.
Sec. 5. Responsibilities of the Secretary. The Secretary shall:
(a) designate an employee within the department to serve as the liaison and point of contact with the Executive Director; and
(b) cooperate with the Executive Director and provide such information, support, and assistance to the Executive Director as requested to implement this order.
Sec. 6. General Provisions. (a) This order shall be implemented subject to the availability of appropriations and to the extent permitted by law.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies, or entities, its officers, employees, or agents, or any other person.

Ex. Ord. No. 13406. Protecting the Property Rights of the American People
Ex. Ord. No. 13406, June 23, 2006, 71 F.R. 36973, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.
Sec. 2. Implementation. (a) The Attorney General shall:
(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and
(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.
(b) Heads of departments and agencies shall, to the extent permitted by law:
(i) comply with instructions issued under subsection (a)(i); and
(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).
Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:
(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;
(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;
(c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;
(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;
(e) acquiring abandoned property;
(f) quieting title to real property;
(g) acquiring ownership or use by a public utility;
(h) facilitating the disposal or exchange of Federal property; or
(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.
Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

George W. Bush.

Ex. Ord. No. 13497. Revocation of Certain Executive Orders Concerning Regulatory Planning and Review
Ex. Ord. No. 13497, Jan. 30, 2009, 74 F.R. 6113, 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 that:
Section 1. Executive Order 13258 of February 26, 2002, and Executive Order 13422 of January 18, 2007, concerning regulatory planning and review, which amended Executive Order 12866 of September 30, 1993, are revoked.
Sec. 2. The Director of the Office of Management and Budget and the heads of executive departments and agencies shall promptly rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 13258 or Executive Order 13422, to the extent consistent with law.
Sec. 3. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13563. Improving Regulation and Regulatory Review
Ex. Ord. No. 13563, Jan. 18, 2011, 76 F.R. 3821, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:
Section 1. General Principles of Regulation. (a) Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.
(b) This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
(c) In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Sec. 2. Public Participation. (a) Regulations shall be adopted through a process that involves public participation. To that end, regulations shall be based, to the extent feasible and consistent with law, on the open exchange of information and perspectives among State, local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole.
(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.
(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking.
Sec. 3. Integration and Innovation. Some sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, thus reducing costs and simplifying and harmonizing rules. In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization. Each agency shall also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.
Sec. 4. Flexible Approaches. Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.
Sec. 5. Science. Consistent with the President’s Memorandum for the Heads of Executive Departments and Agencies, “Scientific Integrity” (March 9, 2009), and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency’s regulatory actions.
Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.
(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.
Sec. 7. General Provisions. (a) For purposes of this order, “agency” shall have the meaning set forth in section 3(b) of Executive Order 12866.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13579. Regulation and Independent Regulatory Agencies
Ex. Ord. No. 13579, July 11, 2011, 76 F.R. 41587, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:
Section 1. Policy. (a) Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. Such decisions are informed and improved by allowing interested members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).
(b) Executive Order 13563 of January 18, 2011, “Improving Regulation and Regulatory Review,” directed to executive agencies, was meant to produce a regulatory system that protects “public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” Independent regulatory agencies, no less than executive agencies, should promote that goal.
(c) Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well.
Sec. 2. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, independent regulatory agencies should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data and evaluations, should be released online whenever possible.
(b) Within 120 days of the date of this order, each independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.
Sec. 3. General Provisions. (a) For purposes of this order, “executive agency” shall have the meaning set forth for the term “agency” in section 3(b) of Executive Order 12866 of September 30, 1993, and “independent regulatory agency” shall have the meaning set forth in 44 U.S.C. 3502(5).
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13604. Improving Performance of Federal Permitting and Review of Infrastructure Projects
Ex. Ord. No. 13604, Mar. 22, 2012, 77 F.R. 18887, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to significantly reduce the aggregate time required to make decisions in the permitting and review of infrastructure projects by the Federal Government, while improving environmental and community outcomes, it is hereby ordered as follows:
Section 1. Policy. (a) To maintain our Nation’s competitive edge and ensure an economy built to last, the United States must have fast, reliable, resilient, and environmentally sound means of moving people, goods, energy, and information. In a global economy, we will compete for the world’s investments based in significant part on the quality of our infrastructure. Investing in the Nation’s infrastructure provides immediate and long-term economic benefits for local communities and the Nation as a whole.
The quality of our Nation’s infrastructure depends in critical part on Federal permitting and review processes, including planning, approval, and consultation processes. These processes inform decision-makers and affected communities about the potential benefits and impacts of proposed infrastructure projects, and ensure that projects are designed, built, and maintained in a manner that is consistent with protecting our public health, welfare, safety, national security, and environment. Reviews and approvals of infrastructure projects can be delayed due to many factors beyond the control of the Federal Government, such as poor project design, incomplete applications, uncertain funding, or multiple reviews and approvals by State, local, tribal, or other jurisdictions. Given these factors, it is critical that executive departments and agencies (agencies) take all steps within their authority, consistent with available resources, to execute Federal permitting and review processes with maximum efficiency and effectiveness, ensuring the health, safety, and security of communities and the environment while supporting vital economic growth.
To achieve that objective, our Federal permitting and review processes must provide a transparent, consistent, and predictable path for both project sponsors and affected communities. They must ensure that agencies set and adhere to timelines and schedules for completion of reviews, set clear permitting performance goals, and track progress against those goals. They must encourage early collaboration among agencies, project sponsors, and affected stakeholders in order to incorporate and address their interests and minimize delays. They must provide for transparency and accountability by utilizing cost-effective information technology to collect and disseminate information about individual projects and agency performance, so that the priorities and concerns of all our citizens are considered. They must rely upon early and active consultation with State, local, and tribal governments to avoid conflicts or duplication of effort, resolve concerns, and allow for concurrent rather than sequential reviews. They must recognize the critical role project sponsors play in assuring the timely and cost-effective review of projects by providing complete information and analysis and by supporting, as appropriate, the costs associated with review. And, they must enable agencies to share priorities, work collaboratively and concurrently to advance reviews and permitting decisions, and facilitate the resolution of disputes at all levels of agency organization.
Each of these elements must be incorporated into routine agency practice to provide demonstrable improvements in the performance of Federal infrastructure permitting and review processes, including lower costs, more timely decisions, and a healthier and cleaner environment. Also, these elements must be integrated into project planning processes so that projects are designed appropriately to avoid, to the extent practicable, adverse impacts on public health, security, historic properties and other cultural resources, and the environment, and to minimize or mitigate impacts that may occur. Permitting and review process improvements that have proven effective must be expanded and institutionalized.
(b) In advancing this policy, this order expands upon efforts undertaken pursuant to Executive Order 13580 of July 12, 2011 (Interagency Working Group on Coordination of Domestic Energy Development and Permitting in Alaska), Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and my memorandum of August 31, 2011 (Speeding Infrastructure Development Through More Efficient and Effective Permitting and Environmental Review), as well as other ongoing efforts.
Sec. 2. Steering Committee on Federal Infrastructure Permitting and Review Process Improvement. There is established a Steering Committee on Federal Infrastructure Permitting and Review Process Improvement (Steering Committee), to be chaired by the Chief Performance Officer (CPO), in consultation with the Chair of the Council on Environmental Quality (CEQ).
(a) Infrastructure Projects Covered by this Order. The Steering Committee shall facilitate improvements in Federal permitting and review processes for infrastructure projects in sectors including surface transportation, aviation, ports and waterways, water resource projects, renewable energy generation, electricity transmission, broadband, pipelines, and other such sectors as determined by the Steering Committee.
(b) Membership. Each of the following agencies (Member Agencies) shall be represented on the Steering Committee by a Deputy Secretary or equivalent officer of the United States:
(i) the Department of Defense;
(ii) the Department of the Interior;
(iii) the Department of Agriculture;
(iv) the Department of Commerce;
(v) the Department of Transportation;
(vi) the Department of Energy;
(vii) the Department of Homeland Security;
(viii) the Environmental Protection Agency;
(ix) the Advisory Council on Historic Preservation;
(x) the Department of the Army; and
(xi) such other agencies or offices as the CPO may invite to participate.
(c) Projects of National or Regional Significance. In furtherance of the policies of this order, the Member Agencies shall coordinate and consult with each other to select, submit to the CPO by April 30, 2012, and periodically update thereafter, a list of infrastructure projects of national or regional significance that will have their status tracked on the online Federal Infrastructure Projects Dashboard (Dashboard) created pursuant to my memorandum of August 31, 2011.
(d) Responsibilities of the Steering Committee. The Steering Committee shall:
(i) develop a Federal Permitting and Review Performance Plan (Federal Plan), as described in section 3(a) of this order;
(ii) implement the Federal Plan and coordinate resolution of disputes among Member Agencies relating to implementation of the Federal Plan; and
(iii) coordinate and consult with other agencies, offices, and interagency working groups as necessary, including the President’s Management Council and Performance Improvement Councils, and, with regard to use and expansion of the Dashboard, the Chief Information Officer (CIO) and Chief Technology Officer to implement this order.
(e) Duties of the CPO. The CPO shall:
(i) in consultation with the Chair of CEQ and Member Agencies, issue guidance on the implementation of this order;
(ii) in consultation with Member Agencies, develop and track performance metrics for evaluating implementation of the Federal Plan and Agency Plans; and
(iii) by January 31, 2013, and annually thereafter, after input from interested agencies, evaluate and report to the President on the implementation of the Federal Plan and Agency Plans, and publish the report on the Dashboard.
(f) No Involvement in Particular Permits or Projects. Neither the Steering Committee, nor the CPO, may direct or coordinate agency decisions with respect to any particular permit or project.
Sec. 3. Plans for Measurable Performance Improvement. (a) By May 31, 2012, the Steering Committee shall, following coordination with Member Agencies and other interested agencies, develop and publish on the Dashboard a Federal Plan to significantly reduce the aggregate time required to make Federal permitting and review decisions on infrastructure projects while improving outcomes for communities and the environment. The Federal Plan shall include, but not be limited to, the following actions to implement the policies outlined in section 1 of this order, and shall reflect the agreement of any Member Agency with respect to requirements in the Federal Plan affecting such agency:
(i) institutionalizing best practices for: enhancing Federal, State, local, and tribal government coordination on permitting and review processes (such as conducting reviews concurrently rather than sequentially to the extent practicable); avoiding duplicative reviews; and engaging with stakeholders early in the permitting process;
(ii) developing mechanisms to better communicate priorities and resolve disputes among agencies at the national and regional levels;
(iii) institutionalizing use of the Dashboard, working with the CIO to enhance the Dashboard, and utilizing other cost-effective information technology systems to share environmental and project-related information with the public, project sponsors, and permit reviewers; and
(iv) identifying timeframes and Member Agency responsibilities for the implementation of each proposed action.
(b) Each Member Agency shall:
(i) by June 30, 2012, submit to the CPO an Agency Plan identifying those permitting and review processes the Member Agency views as most critical to significantly reducing the aggregate time required to make permitting and review decisions on infrastructure projects while improving outcomes for communities and the environment, and describing specific and measurable actions the agency will take to improve these processes, including:
(1) performance metrics, including timelines or schedules for review;
(2) technological improvements, such as institutionalized use of the Dashboard and other information technology systems;
(3) other practices, such as pre-application procedures, early collaboration with other agencies, project sponsors, and affected stakeholders, and coordination with State, local, and tribal governments; and
(4) steps the Member Agency will take to implement the Federal Plan.
(ii) by July 31, 2012, following coordination with other Member Agencies and interested agencies, publish its Agency Plan on the Dashboard; and
(iii) by December 31, 2012, and every 6 months thereafter, report progress to the CPO on implementing its Agency Plan, as well as specific opportunities for additional improvements to its permitting and review procedures.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order shall be implemented consistent with Executive Order 13175 of November 6, 2000 (Consultation and Coordination with Indian Tribal Governments) and my memorandum of November 5, 2009 (Tribal Consultation).
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13609. Promoting International Regulatory Cooperation
Ex. Ord. No. 13609, May 1, 2012, 77 F.R. 26413, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote international regulatory cooperation, it is hereby ordered as follows:
Section 1. Policy. Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), states that our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. In an increasingly global economy, international regulatory cooperation, consistent with domestic law and prerogatives and U.S. trade policy, can be an important means of promoting the goals of Executive Order 13563.
The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
Sec. 2. Coordination of International Regulatory Cooperation. (a) The Regulatory Working Group (Working Group) established by Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), which was reaffirmed by Executive Order 13563, shall, as appropriate:
(i) serve as a forum to discuss, coordinate, and develop a common understanding among agencies of U.S. Government positions and priorities with respect to:
(A) international regulatory cooperation activities that are reasonably anticipated to lead to significant regulatory actions;
(B) efforts across the Federal Government to support significant, cross-cutting international regulatory cooperation activities, such as the work of regulatory cooperation councils; and
(C) the promotion of good regulatory practices internationally, as well as the promotion of U.S. regulatory approaches, as appropriate; and
(ii) examine, among other things:
(A) appropriate strategies for engaging in the development of regulatory approaches through international regulatory cooperation, particularly in emerging technology areas, when consistent with section 1 of this order;
(B) best practices for international regulatory cooperation with respect to regulatory development, and, where appropriate, information exchange and other regulatory tools; and
(C) factors that agencies should take into account when determining whether and how to consider other regulatory approaches under section 3(d) of this order.
(b) As Chair of the Working Group, the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) shall convene the Working Group as necessary to discuss international regulatory cooperation issues as described above, and the Working Group shall include a representative from the Office of the United States Trade Representative and, as appropriate, representatives from other agencies and offices.
(c) The activities of the Working Group, consistent with law, shall not duplicate the efforts of existing interagency bodies and coordination mechanisms. The Working Group shall consult with existing interagency bodies when appropriate.
(d) To inform its discussions, and pursuant to section 4 of Executive Order 12866, the Working Group may commission analytical reports and studies by OIRA, the Administrative Conference of the United States, or any other relevant agency, and the Administrator of OIRA may solicit input, from time to time, from representatives of business, nongovernmental organizations, and the public.
(e) The Working Group shall develop and issue guidelines on the applicability and implementation of sections 2 through 4 of this order.
(f) For purposes of this order, the Working Group shall operate by consensus.
Sec. 3. Responsibilities of Federal Agencies. To the extent permitted by law, and consistent with the principles and requirements of Executive Order 13563 and Executive Order 12866, each agency shall:
(a) if required to submit a Regulatory Plan pursuant to Executive Order 12866, include in that plan a summary of its international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations, with an explanation of how these activities advance the purposes of Executive Order 13563 and this order;
(b) ensure that significant regulations that the agency identifies as having significant international impacts are designated as such in the Unified Agenda of Federal Regulatory and Deregulatory Actions, on RegInfo.gov, and on Regulations.gov;
(c) in selecting which regulations to include in its retrospective review plan, as required by Executive Order 13563, consider:
(i) reforms to existing significant regulations that address unnecessary differences in regulatory requirements between the United States and its major trading partners, consistent with section 1 of this order, when stakeholders provide adequate information to the agency establishing that the differences are unnecessary; and
(ii) such reforms in other circumstances as the agency deems appropriate; and
(d) for significant regulations that the agency identifies as having significant international impacts, consider, to the extent feasible, appropriate, and consistent with law, any regulatory approaches by a foreign government that the United States has agreed to consider under a regulatory cooperation council work plan.
Sec. 4. Definitions. For purposes of this order:
(a) “Agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(b) “International impact” is a direct effect that a proposed or final regulation is expected to have on international trade and investment, or that otherwise may be of significant interest to the trading partners of the United States.
(c) “International regulatory cooperation” refers to a bilateral, regional, or multilateral process, other than processes that are covered by section 6(a)(ii), (iii), and (v) of this order, in which national governments engage in various forms of collaboration and communication with respect to regulations, in particular a process that is reasonably anticipated to lead to the development of significant regulations.
(d) “Regulation” shall have the same meaning as “regulation” or “rule” in section 3(d) of Executive Order 12866.
(e) “Significant regulation” is a proposed or final regulation that constitutes a significant regulatory action.
(f) “Significant regulatory action” shall have the same meaning as in section 3(f) of Executive Order 12866.
Sec. 5. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof;
(ii) the coordination and development of international trade policy and negotiations pursuant to section 411 of the Trade Agreements Act of 1979 (19 U.S.C. 2451 [2541]) and section 141 of the Trade Act of 1974 (19 U.S.C. 2171);
(iii) international trade activities undertaken pursuant to section 3 of the Act of February 14, 1903 (15 U.S.C. 1512), subtitle C of the Export Enhancement Act of 1988, as amended (15 U.S.C. 4721 et seq.), and Reorganization Plan No. 3 of 1979 (19 U.S.C. 2171 note);
(iv) the authorization process for the negotiation and conclusion of international agreements pursuant to 1 U.S.C. 112b(c) and its implementing regulations (22 C.F.R. 181.4) and implementing procedures (11 FAM 720);
(v) activities in connection with subchapter II of chapter 53 of title 31 of the United States Code, title 26 of the United States Code, or Public Law 111–203 and other laws relating to financial regulation; or (vi) [sic] the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13610. Identifying and Reducing Regulatory Burdens
Ex. Ord. No. 13610, May 10, 2012, 77 F.R. 28469, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize our regulatory system and to reduce unjustified regulatory burdens and costs, it is hereby ordered as follows:
Section 1. Policy. Regulations play an indispensable role in protecting public health, welfare, safety, and our environment, but they can also impose significant burdens and costs. During challenging economic times, we should be especially careful not to impose unjustified regulatory requirements. For this reason, it is particularly important for agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies.
Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), states that our regulatory system “must measure, and seek to improve, the actual results of regulatory requirements.” To promote this goal, that Executive Order requires agencies not merely to conduct a single exercise, but to engage in “periodic review of existing significant regulations.” Pursuant to section 6(b) of that Executive Order, agencies are required to develop retrospective review plans to review existing significant regulations in order to “determine whether any such regulations should be modified, streamlined, expanded, or repealed.” The purpose of this requirement is to “make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”
In response to Executive Order 13563, agencies have developed and made available for public comment retrospective review plans that identify over five hundred initiatives. A small fraction of those initiatives, already finalized or formally proposed to the public, are anticipated to eliminate billions of dollars in regulatory costs and tens of millions of hours in annual paperwork burdens. Significantly larger savings are anticipated as the plans are implemented and as action is taken on additional initiatives.
As a matter of longstanding practice and to satisfy statutory obligations, many agencies engaged in periodic review of existing regulations prior to the issuance of Executive Order 13563. But further steps should be taken, consistent with law, agency resources, and regulatory priorities, to promote public participation in retrospective review, to modernize our regulatory system, and to institutionalize regular assessment of significant regulations.
Sec. 2. Public Participation in Retrospective Review. Members of the public, including those directly and indirectly affected by regulations, as well as State, local, and tribal governments, have important information about the actual effects of existing regulations. For this reason, and consistent with Executive Order 13563, agencies shall invite, on a regular basis (to be determined by the agency head in consultation with the Office of Information and Regulatory Affairs (OIRA)), public suggestions about regulations in need of retrospective review and about appropriate modifications to such regulations. To promote an open exchange of information, retrospective analyses of regulations, including supporting data, shall be released to the public online wherever practicable.
Sec. 3. Setting Priorities. In implementing and improving their retrospective review plans, and in considering retrospective review suggestions from the public, agencies shall give priority, consistent with law, to those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment. To the extent practicable and permitted by law, agencies shall also give special consideration to initiatives that would reduce unjustified regulatory burdens or simplify or harmonize regulatory requirements imposed on small businesses. Consistent with Executive Order 13563 and Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), agencies shall give consideration to the cumulative effects of their own regulations, including cumulative burdens, and shall to the extent practicable and consistent with law give priority to reforms that would make significant progress in reducing those burdens while protecting public health, welfare, safety, and our environment.
Sec. 4. Accountability. Agencies shall regularly report on the status of their retrospective review efforts to OIRA. Agency reports should describe progress, anticipated accomplishments, and proposed timelines for relevant actions, with an emphasis on the priorities described in section 3 of this order. Agencies shall submit draft reports to OIRA on September 10, 2012, and on the second Monday of January and July for each year thereafter, unless directed otherwise through subsequent guidance from OIRA. Agencies shall make final reports available to the public within a reasonable period (not to exceed three weeks from the date of submission of draft reports to OIRA).
Sec. 5. General Provisions. (a) For purposes of this order, “agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13707. Using Behavioral Science Insights To Better Serve the American People
Ex. Ord. No. 13707, Sept. 15, 2015, 80 F.R. 56365, provided:
A growing body of evidence demonstrates that behavioral science insights—research findings from fields such as behavioral economics and psychology about how people make decisions and act on them—can be used to design government policies to better serve the American people.
Where Federal policies have been designed to reflect behavioral science insights, they have substantially improved outcomes for the individuals, families, communities, and businesses those policies serve. For example, automatic enrollment and automatic escalation in retirement savings plans have made it easier to save for the future, and have helped Americans accumulate billions of dollars in additional retirement savings. Similarly, streamlining the application process for Federal financial aid has made college more financially accessible for millions of students.
To more fully realize the benefits of behavioral insights and deliver better results at a lower cost for the American people, the Federal Government should design its policies and programs to reflect our best understanding of how people engage with, participate in, use, and respond to those policies and programs. By improving the effectiveness and efficiency of Government, behavioral science insights can support a range of national priorities, including helping workers to find better jobs; enabling Americans to lead longer, healthier lives; improving access to educational opportunities and support for success in school; and accelerating the transition to a low-carbon economy.
NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, I hereby direct the following:
Section 1. Behavioral Science Insights Policy Directive.
(a) Executive departments and agencies (agencies) are encouraged to:
(i) identify policies, programs, and operations where applying behavioral science insights may yield substantial improvements in public welfare, program outcomes, and program cost effectiveness;
(ii) develop strategies for applying behavioral science insights to programs and, where possible, rigorously test and evaluate the impact of these insights;
(iii) recruit behavioral science experts to join the Federal Government as necessary to achieve the goals of this directive; and
(iv) strengthen agency relationships with the research community to better use empirical findings from the behavioral sciences.
(b) In implementing the policy directives in section (a), agencies shall:
(i) identify opportunities to help qualifying individuals, families, communities, and businesses access public programs and benefits by, as appropriate, streamlining processes that may otherwise limit or delay participation—for example, removing administrative hurdles, shortening wait times, and simplifying forms;
(ii) improve how information is presented to consumers, borrowers, program beneficiaries, and other individuals, whether as directly conveyed by the agency, or in setting standards for the presentation of information, by considering how the content, format, timing, and medium by which information is conveyed affects comprehension and action by individuals, as appropriate;
(iii) identify programs that offer choices and carefully consider how the presentation and structure of those choices, including the order, number, and arrangement of options, can most effectively promote public welfare, as appropriate, giving particular consideration to the selection and setting of default options; and
(iv) review elements of their policies and programs that are designed to encourage or make it easier for Americans to take specific actions, such as saving for retirement or completing education programs. In doing so, agencies shall consider how the timing, frequency, presentation, and labeling of benefits, taxes, subsidies, and other incentives can more effectively and efficiently promote those actions, as appropriate. Particular attention should be paid to opportunities to use nonfinancial incentives.
(c) For policies with a regulatory component, agencies are encouraged to combine this behavioral science insights policy directive with their ongoing review of existing significant regulations to identify and reduce regulatory burdens, as appropriate and consistent with Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and Executive Order 13610 of May 10, 2012 (Identifying and Reducing Regulatory Burdens).
Sec. 2. Implementation of the Behavioral Science Insights Policy Directive. (a) The Social and Behavioral Sciences Team (SBST), under the National Science and Technology Council (NSTC) and chaired by the Assistant to the President for Science and Technology, shall provide agencies with advice and policy guidance to help them execute the policy objectives outlined in section 1 of this order, as appropriate.
(b) The NSTC shall release a yearly report summarizing agency implementation of section 1 of this order each year until 2019. Member agencies of the SBST are expected to contribute to this report.
(c) To help execute the policy directive set forth in section 1 of this order, the Chair of the SBST shall, within 45 days of the date of this order and thereafter as necessary, issue guidance to assist agencies in implementing this order.
Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) Independent agencies are strongly encouraged to comply with the requirements of this order.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13725. Steps To Increase Competition and Better Inform Consumers and Workers To Support Continued Growth of the American Economy
Ex. Ord. No. 13725, Apr. 15, 2016, 81 F.R. 23417, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to protect American consumers and workers and encourage competition in the U.S. economy, it is hereby ordered as follows:
Section 1. Policy. Maintaining, encouraging, and supporting a fair, efficient, and competitive marketplace is a cornerstone of the American economy. Consumers and workers need both competitive markets and information to make informed choices.
Certain business practices such as unlawful collusion, illegal bid rigging, price fixing, and wage setting, as well as anticompetitive exclusionary conduct and mergers stifle competition and erode the foundation of America’s economic vitality. The immediate results of such conduct—higher prices and poorer service for customers, less innovation, fewer new businesses being launched, and reduced opportunities for workers—can impact Americans in every walk of life.
Competitive markets also help advance national priorities, such as the delivery of affordable health care, energy independence, and improved access to fast and affordable broadband. Competitive markets also promote economic growth, which creates opportunity for American workers and encourages entrepreneurs to start innovative companies that create jobs.
The Department of Justice (DOJ) and the Federal Trade Commission (FTC) have a proven record of detecting and stopping anticompetitive conduct and challenging mergers and acquisitions that threaten to consolidate markets and reduce competition.
Promoting competitive markets and ensuring that consumers and workers have access to the information needed to make informed choices must be a shared priority across the Federal Government. Executive departments and agencies can contribute to these goals through, among other things, pro-competitive rulemaking and regulations, and by eliminating regulations that create barriers to or limit competition. Such Government-wide action is essential to ensuring that consumers, workers, startups, small businesses, and farms reap the full benefits of competitive markets.
Sec. 2. Agency Responsibilities. (a) Executive departments and agencies with authorities that could be used to enhance competition (agencies) shall, where consistent with other laws, use those authorities to promote competition, arm consumers and workers with the information they need to make informed choices, and eliminate regulations that restrict competition without corresponding benefits to the American public.
(b) Agencies shall identify specific actions that they can take in their areas of responsibility to build upon efforts to detect abuses such as price fixing, anticompetitive behavior in labor and other input markets, exclusionary conduct, and blocking access to critical resources that are needed for competitive entry. Behaviors that appear to violate our antitrust laws should be referred to antitrust enforcers at DOJ and the FTC. Such a referral shall not preclude further action by the referring agency against that behavior under that agency’s relevant statutory authority.
(c) Agencies shall also identify specific actions that they can take in their areas of responsibility to address undue burdens on competition. As permitted by law, agencies shall consult with other interested parties to identify ways that the agency can promote competition through pro-competitive rulemaking and regulations, by providing consumers and workers with information they need to make informed choices, and by eliminating regulations that restrict competition without corresponding benefits to the American public.
(d) Not later than 30 days from the date of this order, agencies shall submit to the Director of the National Economic Council an initial list of (1) actions each agency can potentially take to promote more competitive markets; (2) any specific practices, such as blocking access to critical resources, that potentially restrict meaningful consumer or worker choice or unduly stifle new market entrants, along with any actions the agency can potentially take to address those practices; and (3) any relevant authorities and tools potentially available to enhance competition or make information more widely available for consumers and workers.
(e) Not later than 60 days from the date of this order, agencies shall report to the President, through the Director of the National Economic Council, recommendations on agency-specific actions that eliminate barriers to competition, promote greater competition, and improve consumer access to information needed to make informed purchasing decisions. Such recommendations shall include a list of priority actions, including rulemakings, as well as timelines for completing those actions.
(f) Subsequently, agencies shall report semi-annually to the President, through the Director of the National Economic Council, on additional actions that they plan to undertake to promote greater competition.
(g) Sections 2(d), 2(e), and 2(f) of this order do not require reporting of information related to law enforcement policy and activities.
Sec. 3. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Independent agencies are strongly encouraged to comply with the requirements of this order.
(c) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13748. Establishing a Community Solutions Council
Ex. Ord. No. 13748, Nov. 16, 2016, 81 F.R. 83619, 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. Policy. Place is a strong determinant of opportunity and well-being. Research shows that the neighborhood in which a child grows up impacts his or her odds of going to college, enjoying good health, and obtaining a lifetime of economic opportunities. Even after 73 consecutive months of total job growth since 2009, communities of persistent poverty remain and for far too many, the odds are stacked against opportunity and achieving the American dream. In addition, between now and 2050, growing our economy, expected population growth, climate change, and demographic shifts will require major new investments in physical, social, and technological infrastructure.
Specific challenges in communities—including crime, access to care, opportunities to pursue quality education, lack of housing options, unemployment, and deteriorating infrastructure—can be met by leveraging Federal assistance and resources. While the Federal Government provides rural, suburban, urban, and tribal communities with significant investments in aid annually, coordinating these investments, as appropriate, across agencies based on locally led visions can more effectively reach communities of greatest need to maximize impact. In recent years, the Federal Government has deepened its engagement with communities, recognizing the critical role of these partnerships in enabling Americans to live healthier and more prosperous lives. Since 2015, the Community Solutions Task Force, comprising executive departments, offices, and agencies (agencies) across the Federal Government, has served as the primary interagency coordinator of agency work to engage with communities to deliver improved outcomes. This order builds on recent work to facilitate inter-agency and community-level collaboration to meet the unique needs of communities in a way that reflects these communities’ local assets, economies, geography, size, history, strengths, talent networks, and visions for the future.
Sec. 2. Principles. Our effort to modernize the Federal Government’s work with communities is rooted in the following principles:
(a) A community-driven, locally led vision and long-term plan for clear outcomes should guide individual projects.
(b) The Federal Government should coordinate its efforts at the Federal, regional, State, local, tribal, and community level, and with cross-sector partners, to offer a more seamless process for communities to access needed support and ensure equitable investments.
(c) The Federal Government should help communities identify, develop, and share local solutions, rely on data to determine what does and does not work, and harness technology and modern collaboration and engagement methods to help share these solutions and help communities meet their local goals.
Sec. 3. Community Solutions Council.
(a) Establishment. There is hereby established a Council for Community Solutions (Council), led by two Co-Chairs. One Co-Chair will be an Assistant to the President or the Director of the Office of Management and Budget, as designated by the President. The second Co-Chair will be rotated every 4 years and designated by the President from among the heads of the Departments of Justice, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, and Education, and the Environmental Protection Agency (Agency Co-Chair).
(b) Membership. The Council shall consist of the following members:
(i) the Secretary of State;
(ii) the Secretary of the Treasury;
(iii) the Secretary of Defense;
(iv) the Attorney General;
(v) the Secretary of the Interior;
(vi) the Secretary of Agriculture;
(vii) the Secretary of Commerce;
(viii) the Secretary of Labor;
(ix) the Secretary of Health and Human Services;
(x) the Secretary of Housing and Urban Development;
(xi) the Secretary of Transportation;
(xii) the Secretary of Energy;
(xiii) the Secretary of Education;
(xiv) the Secretary of Veterans Affairs;
(xv) the Secretary of Homeland Security;
(xvi) the Administrator of the Environmental Protection Agency;
(xvii) the Administrator of General Services;
(xviii) the Administrator of the Small Business Administration;
(xix) the Chief Executive Officer of the Corporation for National and Community Service;
(xx) the Chairperson of the National Endowment for the Arts;
(xxi) the Director of the Institute for Museum and Library Services;
(xxii) the Federal Co-Chair of the Delta Regional Authority;
(xxiii) the Federal Co-Chair of the Appalachian Regional Commission;
(xxiv) the Director of the Office of Personnel Management;
(xxv) the Director of the Office of Management and Budget;
(xxvi) the Chair of the Council of Economic Advisers;
(xxvii) the Assistant to the President for Intergovernmental Affairs and Public Engagement;
(xxviii) the Assistant to the President and Cabinet Secretary;
(xxix) the Assistant to the President for Economic Policy and Director of the National Economic Council;
(xxx) the Chair of the Council on Environmental Quality;
(xxxi) the Director of the Office of Science and Technology Policy;
(xxxii) the Assistant to the President and Chief Technology Officer;
(xxxiii) the Administrator of the United States Digital Service; and
(xxxiv) other officials, as the Co-Chairs may designate or invite to participate.
(c) Administration.
(i) The President will designate one of the Co-Chairs to appoint or designate, as appropriate, an Executive Director, who shall coordinate the Council’s activities. The department, agency, or component within the Executive Office of the President in which the Executive Director is appointed or designated, as appropriate, (funding entity) shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations as may be necessary for the performance of its functions.
(ii) To the extent permitted by law, including the Economy Act, and within existing appropriations, participating agencies may detail staff to the funding entity to support the Council’s coordination and implementation efforts.
(iii) The Co-Chairs shall convene regular meetings of the Council, determine its agenda, and direct its work. At the direction of the Co-Chairs, the Council may establish subgroups consisting exclusively of Council members or their designees, as appropriate.
(iv) A member of the Council may designate a senior-level official who is part of the member’s department, agency, or office to perform the Council functions of the member.
Sec. 4. Mission and Priorities of the Council. (a) The Council shall foster collaboration across agencies, policy councils, and offices to coordinate actions, identify working solutions to share broadly, and develop and implement policy recommendations that put the community-driven, locally led vision at the center of policymaking. The Council shall:
(i) Work across agencies to coordinate investments in initiatives and practices that align the work of the Federal Government to have the greatest impact on the lives of individuals and communities.
(ii) Use evidence-based practices in policymaking, including identifying existing solutions, scaling up practices that are working, and designing solutions with regular input of the individuals and communities to be served.
(iii) Invest in recruiting, training, and retaining talent to further the effective delivery of services to individuals and communities and empower them with best-practice community engagement options, open government transparency methods, equitable policy approaches, technical assistance and capacity building tools, and data-driven practice.
(b) Consistent with the principles set forth in this order and in accordance with applicable law, including the Federal Advisory Committee Act, the Council should conduct outreach to representatives of nonprofit organizations, civil rights organizations, businesses, labor and professional organizations, start-up and entrepreneurial communities, State, local, and tribal government agencies, school districts, youth, elected officials, seniors, faith and other community-based organizations, philanthropies, technologists, other institutions of local importance, and other interested or affected persons with relevant expertise in the expansion and improvement of efforts to build local capacity, ensure equity, and address economic, social, environmental, and other issues in communities or regions.
Sec. 5. Executive Orders 13560 and 13602, and Building Upon Other Efforts. This order supersedes Executive Order 13560 of December 14, 2010 (White House Council for Community Solutions), and Executive Order 13602 of March 15, 2012 (Establishing a White House Council on Strong Cities, Strong Communities), which are hereby revoked.
This Council builds on existing efforts involving Federal working groups, task forces, memoranda of agreement, and initiatives, including the Community Solutions Task Force, the Federal Working Groups dedicated to supporting the needs and priorities of local leadership in Detroit, Baltimore, and Pine Ridge; the Interagency Working Group on Environmental Justice; the Partnership for Sustainable Communities; Local Foods, Local Places; Performance Partnership Pilots for Disconnected Youth; Empowerment Zones; StrikeForce; Partnerships for Opportunity and Workforce and Economic Revitalization; the Neighborhood Revitalization Initiative; Climate Action Champions; Better Communities Alliance; Investing in Manufacturing Communities Partnership; Promise Zones; and the 2016 Memorandum of Agreement on Interagency Technical Assistance. The Council shall also coordinate with existing Chief Officer Councils across the government with oversight responsibility for human capital, performance improvement, and financial assistance.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Executive Order No. 13771
Ex. Ord. No. 13771, Jan. 30, 2017, 82 F.R. 9339, which required an executive department or agency that publicly proposes for notice and comment or otherwise promulgates a new regulation to identify at least two existing regulations to be repealed for fiscal year 2017, and for subsequent fiscal years required annual regulatory cost submissions to the Office of Management and Budget, was revoked by Ex. Ord. No. 13992, § 2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13777
Ex. Ord. No. 13777, Feb. 24, 2017, 82 F.R. 12285, which established Regulatory Reform Task Forces to identify certain regulations to repeal, replace, or modify, was revoked by Ex. Ord. No. 13992, § 2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13828
Ex. Ord. No. 13828, Apr. 10, 2018, 83 F.R. 15941, which required certain agencies to review their regulations and guidance documents relating to public assistance programs, was revoked by Ex. Ord. No. 14018, § 1, Feb. 24, 2021, 86 F.R. 11855.

Executive Order No. 13891
Ex. Ord. No. 13891, Oct. 9, 2019, 84 F.R. 55235, which related to agency non-binding guidance documents, was revoked by Ex. Ord. No. 13992, § 2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13893
Ex. Ord. No. 13893, Oct. 10, 2019, 84 F.R. 55487, which related to reducing mandatory spending incurred by discretionary administrative actions, was revoked by Ex. Ord. No. 13992, § 2, Jan. 20, 2021, 86 F.R. 7049, set out in a note under section 551 of this title.

Executive Order No. 13924
Ex. Ord. No. 13924, May 19, 2020, 85 F.R. 31353, which related to regulatory relief to support recovery from the economic consequences of COVID–19, was revoked by Ex. Ord. No. 14018, § 1, Feb. 24, 2021, 86 F.R. 11855.

Executive Order No. 13927
Ex. Ord. No. 13927, June 4, 2020, 85 F.R. 35165, which related to accelerating the nation’s economic recovery from the COVID–19 emergency by expediting infrastructure investments and other activities, was revoked by Ex. Ord. No. 13990, § 7(a), Jan. 20, 2021, 86 F.R. 7041, set out in a note under section 4321 of Title 42, The Public Health and Welfare.

Ex. Ord. No. 13966. Increasing Economic and Geographic Mobility
Ex. Ord. No. 13966, Dec. 14, 2020, 85 F.R. 81777, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 305 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Policy and Principles. As expressed in Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda) [formerly set out above], it is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people. Overly burdensome occupational licensing requirements can impede job creation and slow economic growth, which undermines our Nation’s prosperity and the economic well-being of the American people. Such regulations can prevent American workers and job seekers from earning a living, maximizing their personal and economic potential, and achieving the American Dream. The purpose of this order is to reduce the burden of occupational regulations in order to promote the free practice of commerce, lower consumer costs, and increase economic and geographic mobility, including for military spouses.
My Administration is committed to continuing this important work by partnering with State, local, territorial, and tribal leaders throughout the country to eliminate harmful occupational regulations, which are frequently designed to protect politically connected interest groups. To this end, in October 2019, my Administration announced the establishment of the Governors’ Initiative on Regulatory Innovation, which works with State, local, and tribal leaders to advance occupational licensing reforms, better align State and Federal regulations, and eliminate unnecessary regulations that drive up consumer costs.
Occupational regulations can protect practitioners from competition rather than protect the public from malpractice. Unfortunately, the number of occupational regulations has substantially increased over the last few decades. Since the 1950s, the percentage of jobs requiring a government-mandated occupational license has increased from less than 5 percent to between 25 and 30 percent. By requiring workers to acquire new licenses when they move to a new jurisdiction, occupational regulations reduce worker mobility, disproportionately harm low-income Americans, and are particularly burdensome to military spouses who must relocate to support the service members committed to keeping our country safe. Additionally, blanket prohibitions that prevent individuals with criminal records from obtaining occupational licenses may exacerbate disparities in employment opportunity and increase the likelihood of recidivism, particularly as regulatory barriers to enter lower- and middle-income occupations are associated with higher recidivism rates. Licensing requirements unnecessary to protect consumers from significant and demonstrable harm also frequently impose expensive educational requirements on potential job seekers, even for occupations with limited future earnings potential. According to recent research, licensing requirements have cost our country an estimated 2.85 million jobs and over $200 billion annually in increased consumer costs.
Therefore, it is the policy of the United States Government to support occupational regulation reform throughout the Nation, building on occupational licensing reforms enacted most recently in Arizona, Florida, Iowa, Missouri, and South Dakota, guided by six principles:
Principle 1. All recognized occupational licensure boards should be subject to active supervision of [sic] a designated governmental agency or office.
Principle 2. All occupational licensure boards recognized by a State, territorial, or tribal government that oversee personal qualifications related to the practice of an occupation should adopt and maintain the criteria and methods of occupational regulation that are least restrictive to competition sufficient to protect consumers from significant and demonstrable harm to their health and safety. The policies and procedures of such boards should be designed to protect consumer and worker safety and to encourage competition.
Principle 3. State, territorial, and tribal governments should review existing occupational regulations, including associated scope-of-practice provisions, to ensure that their requirements are the least restrictive to competition sufficient to protect consumers from significant and demonstrable harm. State, territorial, and tribal governments should also regularly review and analyze all occupational regulations, including associated personal qualifications required to obtain an occupational license, to ensure the adoption of the least restrictive requirements necessary to protect consumers from significant and demonstrable harm.
Principle 4. Individuals with criminal records should be encouraged to submit to the appropriate licensure board a preliminary application for an occupational license for a determination as to whether the criminal record would preclude their attainment of the appropriate occupational license.
Principle 5. A State, territorial, or tribal government should issue an occupational license to a person in the discipline applied for and at the same level of practice if the individual satisfies four requirements:
(a) the individual holds an occupational license for that discipline from another jurisdiction in the United States and is in good standing;
(b) the individual verifies having met, as applicable, the minimum examination, education, work, or clinical-supervision requirements imposed by the State, territory, or tribe;
(c) the individual:
(i) has not had the license previously revoked or suspended;
(ii) has not been disciplined related to the license by any other regulating entity; and
(iii) is not subject to any pending complaint, allegation, or investigation related to the license; and
(d) the individual pays all applicable fees required to obtain the new license.
Principle 6. Accommodations should be made for any applicant for an occupational license who is the spouse of an active duty member of the uniformed services and who is relocating with the member due to the member’s official permanent change of station orders.
Sec. 2. Review of and Report on Authorities, Regulations, Guidance, and Policies. The head of each executive department and agency (agency) shall, within 90 days of the date of this order [Dec. 14, 2020] and every 2 years thereafter:
(a) review the agency’s authorities, regulations, guidance, and polices to identify changes necessary to ensure alignment with the principles set forth in section 1 of this order; and
(b) submit a report to the Director of the Office of Management and Budget (Director of OMB), the Assistant to the President for Domestic Policy, and the Assistant to the President and Director of Intergovernmental Affairs (Director of IGA) identifying all necessary changes identified pursuant to subsection (a) of this section.
Sec. 3. Identification and Report of Opportunities to Encourage Occupational Regulation Reform. (a) Within 90 days of the date of this order, and every 2 years thereafter, the head of each agency shall submit a report to the Director of OMB, the Assistant to the President for Domestic Policy, and the Director of IGA identifying a list of recommended actions available to any and all agencies to recognize and reward State, territorial, and tribal governments that have in place policies and procedures regarding occupational regulation that are consistent with the principles set forth in section 1 of this order; and
(b) Within 120 days of the date of this order, and every 2 years thereafter, the Assistant to the President for Domestic Policy, in consultation with the Secretary of Commerce, the Secretary of Labor, the Director of OMB, the Administrator of the Small Business Administration, the Director of IGA, and the heads of other agencies and offices as appropriate, shall submit a report to the President identifying:
(i) recommended changes to Federal law, regulations, guidance, and other policies to ensure alignment with the principles set forth in section 1 of this order;
(ii) recommended actions to be taken by agencies to recognize and reward State, territorial, and tribal governments that have in place policies and procedures regarding occupational regulation that are consistent with the principles set forth in section 1 of this order; and
(iii) a list of criteria that may be used to evaluate whether a State, territorial, or tribal government has in place policies and procedures that are consistent with the principles set forth in section 1 of this order.
Sec. 4. Implementation of Recommendations to Recognize and Reward State, Territorial, and Tribal Regulatory Reform. (a) Within 180 days of the date of this order, and every 2 years thereafter, the Administrator of the Small Business Administration, in consultation with the Secretary of Commerce, the Secretary of Labor, the Secretary of Health and Human Services, and the heads of other agencies as appropriate, shall seek and report on information from State, territorial, and tribal governments regarding whether they have in place policies and procedures consistent with the principles set forth in section 1 of this order and shall make the report publicly available, including on agencies’ websites. The information sought shall be consistent with the criteria identified as required by section 3(b)(iii) of this order.
(b) Consistent with applicable law, and to the extent that the President approves any of the actions recommended pursuant to section 3(b)(ii) of this order, agencies shall implement such actions for the purpose of recognizing and rewarding a State, territorial, or tribal government that has in place policies and procedures regarding occupational regulation that are consistent with the principles set forth in section 1 of this order.
Sec. 5. Definitions. For the purposes of this order:
(a) “Active supervision” means:
(i) reviewing proposed occupational licensure board rules, policies, or other regulatory actions that may restrict market competition prior to issuance;
(ii) ensuring that any entity seeking to impose occupational licensing criteria adopts the criteria that are least restrictive to competition sufficient to protect consumers from significant and demonstrable harm to their health or safety; and
(iii) analyzing, where information is readily available, the effects of proposed rules, policies, and other regulatory actions on employment opportunities, consumer costs, market competition, and administrative costs.
(b) “Agency” has the meaning given that term in section 3502(1) of title 44, United States Code, except that the term does not include the agencies described in section 3502(5) of title 44, United States Code, other than the Bureau of Consumer Financial Protection.
(c) “Occupational license” means a license, registration, or certification without which an individual lacks the legal permission of a State, local, territorial, or tribal government to perform certain defined services for compensation.
(d) “Occupational regulation” includes:
(i) licensing or government certification, by which a government body requires personal qualifications in order to be permitted to practice an occupation; and
(ii) registration, bonding, or inspections, by which a government body does not require personal qualifications in order to be permitted to practice an occupation.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.

Executive Order No. 13980
Ex. Ord. No. 13980, Jan. 18, 2021, 86 F.R. 6817, which related to regulations that may subject a violator to criminal penalties, was revoked by Ex. Ord. No. 14029, § 1, May 14, 2021, 86 F.R. 27025.

Ex. Ord. No. 13985. Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
Ex. Ord. No. 13985, Jan. 20, 2021, 86 F.R. 7009, 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:
Section 1. Policy. Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths. But for too many, the American Dream remains out of reach. Entrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities. Our country faces converging economic, health, and climate crises that have exposed and exacerbated inequities, while a historic movement for justice has highlighted the unbearable human costs of systemic racism. Our Nation deserves an ambitious whole-of-government equity agenda that matches the scale of the opportunities and challenges that we face.
It is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government. Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.
By advancing equity across the Federal Government, we can create opportunities for the improvement of communities that have been historically underserved, which benefits everyone. For example, an analysis shows that closing racial gaps in wages, housing credit, lending opportunities, and access to higher education would amount to an additional $5 trillion in gross domestic product in the American economy over the next 5 years. The Federal Government’s goal in advancing equity is to provide everyone with the opportunity to reach their full potential. Consistent with these aims, each agency must assess whether, and to what extent, its programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups. Such assessments will better equip agencies to develop policies and programs that deliver resources and benefits equitably to all.
Sec. 2. Definitions. For purposes of this order: (a) The term “equity” means the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.
(b) The term “underserved communities” refers to populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life, as exemplified by the list in the preceding definition of “equity.”
Sec. 3. Role of the Domestic Policy Council. The role of the White House Domestic Policy Council (DPC) is to coordinate the formulation and implementation of my Administration’s domestic policy objectives. Consistent with this role, the DPC will coordinate efforts to embed equity principles, policies, and approaches across the Federal Government. This will include efforts to remove systemic barriers to and provide equal access to opportunities and benefits, identify communities the Federal Government has underserved, and develop policies designed to advance equity for those communities. The DPC-led interagency process will ensure that these efforts are made in coordination with the directors of the National Security Council and the National Economic Council.
Sec. 4. Identifying Methods to Assess Equity. (a) The Director of the Office of Management and Budget (OMB) shall, in partnership with the heads of agencies, study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals. The study should aim to identify the best methods, consistent with applicable law, to assist agencies in assessing equity with respect to race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability.
(b) As part of this study, the Director of OMB shall consider whether to recommend that agencies employ pilot programs to test model assessment tools and assist agencies in doing so.
(c) Within 6 months of the date of this order [Jan. 20, 2021], the Director of OMB shall deliver a report to the President describing the best practices identified by the study and, as appropriate, recommending approaches to expand use of those methods across the Federal Government.
Sec. 5. Conducting an Equity Assessment in Federal Agencies. The head of each agency, or designee, shall, in consultation with the Director of OMB, select certain of the agency’s programs and policies for a review that will assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs. The head of each agency, or designee, shall conduct such review and within 200 days of the date of this order provide a report to the Assistant to the President for Domestic Policy (APDP) reflecting findings on the following:
(a) Potential barriers that underserved communities and individuals may face to enrollment in and access to benefits and services in Federal programs;
(b) Potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities;
(c) Whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs; and
(d) The operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.
Sec. 6. Allocating Federal Resources to Advance Fairness and Opportunity. The Federal Government should, consistent with applicable law, allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities, as well as individuals from those communities. To this end:
(a) The Director of OMB shall identify opportunities to promote equity in the budget that the President submits to the Congress.
(b) The Director of OMB shall, in coordination with the heads of agencies, study strategies, consistent with applicable law, for allocating Federal resources in a manner that increases investment in underserved communities, as well as individuals from those communities. The Director of OMB shall report the findings of this study to the President.
Sec. 7. Promoting Equitable Delivery of Government Benefits and Equitable Opportunities. Government programs are designed to serve all eligible individuals. And Government contracting and procurement opportunities should be available on an equal basis to all eligible providers of goods and services. To meet these objectives and to enhance compliance with existing civil rights laws:
(a) Within 1 year of the date of this order, the head of each agency shall consult with the APDP and the Director of OMB to produce a plan for addressing:
(i) any barriers to full and equal participation in programs identified pursuant to section 5(a) of this order; and
(ii) any barriers to full and equal participation in agency procurement and contracting opportunities identified pursuant to section 5(b) of this order.
(b) The Administrator of the U.S. Digital Service, the United States Chief Technology Officer, the Chief Information Officer of the United States, and the heads of other agencies, or their designees, shall take necessary actions, consistent with applicable law, to support agencies in developing such plans.
Sec. 8. Engagement with Members of Underserved Communities. In carrying out this order, agencies shall consult with members of communities that have been historically underrepresented in the Federal Government and underserved by, or subject to discrimination in, Federal policies and programs. The head of each agency shall evaluate opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.
Sec. 9. Establishing an Equitable Data Working Group. Many Federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables. This lack of data has cascading effects and impedes efforts to measure and advance equity. A first step to promoting equity in Government action is to gather the data necessary to inform that effort.
(a) Establishment. There is hereby established an Interagency Working Group on Equitable Data (Data Working Group).
(b) Membership.
(i) The Chief Statistician of the United States and the United States Chief Technology Officer shall serve as Co-Chairs of the Data Working Group and coordinate its work. The Data Working Group shall include representatives of agencies as determined by the Co-Chairs to be necessary to complete the work of the Data Working Group, but at a minimum shall include the following officials, or their designees:
(A) the Director of OMB;
(B) the Secretary of Commerce, through the Director of the U.S. Census Bureau;
(C) the Chair of the Council of Economic Advisers;
(D) the Chief Information Officer of the United States;
(E) the Secretary of the Treasury, through the Assistant Secretary of the Treasury for Tax Policy;
(F) the Chief Data Scientist of the United States; and
(G) the Administrator of the U.S. Digital Service.
(ii) The DPC shall work closely with the Co-Chairs of the Data Working Group and assist in the Data Working Group’s interagency coordination functions.
(iii) The Data Working Group shall consult with agencies to facilitate the sharing of information and best practices, consistent with applicable law.
(c) Functions. The Data Working Group shall:
(i) through consultation with agencies, study and provide recommendations to the APDP identifying inadequacies in existing Federal data collection programs, policies, and infrastructure across agencies, and strategies for addressing any deficiencies identified; and
(ii) support agencies in implementing actions, consistent with applicable law and privacy interests, that expand and refine the data available to the Federal Government to measure equity and capture the diversity of the American people.
(d) OMB shall provide administrative support for the Data Working Group, consistent with applicable law.
Sec. 10. Revocation. (a) Executive Order 13950 of September 22, 2020 (Combating Race and Sex Stereotyping) [5 U.S.C. 4103 note], is hereby revoked.
(b) The heads of agencies covered by Executive Order 13950 shall review and identify proposed and existing agency actions related to or arising from Executive Order 13950. The head of each agency shall, within 60 days of the date of this order, consider suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to Executive Order 13950, as appropriate and consistent with applicable law.
(c) Executive Order 13958 of November 2, 2020 (Establishing the President’s Advisory 1776 Commission) [20 U.S.C. 3411 note], is hereby revoked.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) Independent agencies are strongly encouraged to comply with the provisions of this order.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.

Regulatory Reform—Waiver of Penalties and Reduction of Reports
Memorandum of President of the United States, Apr. 21, 1995, 60 F.R. 20621, provided:
Memorandum for
The Secretary of State
The Secretary of the Treasury
The Secretary of Defense
The Attorney General
The Secretary of the Interior
The Secretary of Agriculture
The Secretary of Commerce
The Secretary of Labor
The Secretary of Health and Human Services
The Secretary of Housing and Urban Development
The Secretary of Transportation
The Secretary of Energy
The Secretary of Education
The Secretary of Veterans Affairs
The Administrator, Environmental Protection Agency
The Administrator, Small Business Administration
The Secretary of the Army
The Secretary of the Navy
The Secretary of the Air Force
The Director, Federal Emergency Management Agency
The Administrator, National Aeronautics and Space Administration
The Director, National Science Foundation
The Acting Archivist of the United States
The Administrator of General Services
The Chair, Railroad Retirement Board
The Chairperson, Architectural and Transportation Barriers Compliance Board
The Executive Director, Pension Benefit Guaranty Corporation
On March 16, I announced that the Administration would implement new policies to give compliance officials more flexibility in dealing with small business and to cut back on paperwork. These Governmentwide policies, as well as the specific agency actions I announced, are part of this Administration’s continuing commitment to sensible regulatory reform. With your help and cooperation, we hope to move the Government toward a more flexible, effective, and user friendly approach to regulation.
A. Actions: This memorandum directs the designated department and agency heads to implement the policies set forth below.
1. Authority to Waive Penalties. (a) To the extent permitted by law, each agency shall use its discretion to modify the penalties for small businesses in the following situations. Agencies shall exercise their enforcement discretion to waive the imposition of all or a portion of a penalty when the violation is corrected within a time period appropriate to the violation in question. For those violations that may take longer to correct than the period set by the agency, the agency shall use its enforcement discretion to waive up to 100 percent of the financial penalties if the amounts waived are used to bring the entity into compliance. The provisions in paragraph 1(a) of this memorandum shall apply only where there has been a good faith effort to comply with applicable regulations and the violation does not involve criminal wrongdoing or significant threat to health, safety, or the environment.
(b) Each agency shall, by June 15, 1995, submit a plan to the Director of the Office of Management and Budget (“Director”) describing the actions it will take to implement the policies in paragraph 1(a) of this memorandum. The plan shall provide that the agency will implement the policies described in paragraph 1(a) of this memorandum on or before July 14, 1995. Plans should include information on how notification will be given to frontline workers and small businesses.
2. Cutting Frequency of Reports. (a) Each agency shall reduce by one-half the frequency of the regularly scheduled reports that the public is required, by rule or by policy, to provide to the Government (from quarterly to semiannually, from semiannually to annually, etc.), unless the department or agency head determines that such action is not legally permissible; would not adequately protect health, safety, or the environment; would be inconsistent with achieving regulatory flexibility or reducing regulatory burdens; or would impede the effective administration of the agency’s program. The duty to make such determinations shall be nondelegable.
(b) Each agency shall, by June 15, 1995, submit a plan to the Director describing the actions it will take to implement the policies in paragraph 2(a), including a copy of any determination that certain reports are excluded.
B. Application and Scope: 1. The Director may issue further guidance as necessary to carry out the purposes of this memorandum.
2. This memorandum does not apply to matters related to law enforcement, national security, or foreign affairs, the importation or exportation of prohibited or restricted items, Government taxes, duties, fees, revenues, or receipts; nor does it apply to agencies (or components thereof) whose principal purpose is the collection, analysis, and dissemination of statistical information.
3. This memorandum is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or its employees.
4. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

William J. Clinton.

[References to the Director of the Federal Emergency Management Agency to be considered to refer and apply to the Administrator of the Federal Emergency Management Agency, see section 612(c) of Pub. L. 109–295, set out as a note under section 313 of Title 6, Domestic Security.]

Plain Language in Government Writing
Memorandum of President of the United States, June 1, 1998, 63 F.R. 31885, provided:
Memorandum for the Heads of Executive Departments and Agencies
The Vice President and I have made reinventing the Federal Government a top priority of my Administration. We are determined to make the Government more responsive, accessible, and understandable in its communications with the public.
The Federal Government’s writing must be in plain language. By using plain language, we send a clear message about what the Government is doing, what it requires, and what services it offers. Plain language saves the Government and the private sector time, effort, and money.
Plain language requirements vary from one document to another, depending on the intended audience. Plain language documents have logical organization, easy-to-read design features, and use:
• common, everyday words, except for necessary technical terms;
• “you” and other pronouns;
• the active voice; and
• short sentences.
To ensure the use of plain language, I direct you to do the following:
• By October 1, 1998, use plain language in all new documents, other than regulations, that explain how to obtain a benefit or service or how to comply with a requirement you administer or enforce. For example, these documents may include letters, forms, notices, and instructions. By January 1, 2002, all such documents created prior to October 1, 1998, must also be in plain language.
• By January 1, 1999, use plain language in all proposed and final rulemaking documents published in the Federal Register, unless you proposed the rule before that date. You should consider rewriting existing regulations in plain language when you have the opportunity and resources to do so.
The National Partnership for Reinventing Government will issue guidance to help you comply with these directives and to explain more fully the elements of plain language. You should also use customer feedback and common sense to guide your plain language efforts.
I ask the independent agencies to comply with these directives.
This memorandum does not confer any right or benefit enforceable by law against the United States or its representatives. The Director of the Office of Management and Budget will publish this memorandum in the Federal Register.

William J. Clinton.

Preemption
Memorandum of President of the United States, May 20, 2009, 74 F.R. 24693, provided:
Memorandum for the Heads of Executive Departments and Agencies
From our Nation’s founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government’s role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.
An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.
The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:
1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget’s Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Regulatory Compliance
Memorandum of President of the United States, Jan. 18, 2011, 76 F.R. 3825, provided:
Memorandum for the Heads of Executive Departments and Agencies
My Administration is committed to enhancing effectiveness and efficiency in Government. Pursuant to the Memorandum on Transparency and Open Government, issued on January 21, 2009, executive departments and agencies (agencies) have been working steadily to promote accountability, encourage collaboration, and provide information to Americans about their Government’s activities.
To that end, much progress has been made toward strengthening our democracy and improving how Government operates. In the regulatory area, several agencies, such as the Department of Labor and the Environmental Protection Agency, have begun to post online (at ogesdw.dol.gov and www.epa-echo.gov), and to make readily accessible to the public, information concerning their regulatory compliance and enforcement activities, such as information with respect to administrative inspections, examinations, reviews, warnings, citations, and revocations (but excluding law enforcement or otherwise sensitive information about ongoing enforcement actions).
Greater disclosure of regulatory compliance information fosters fair and consistent enforcement of important regulatory obligations. Such disclosure is a critical step in encouraging the public to hold the Government and regulated entities accountable. Sound regulatory enforcement promotes the welfare of Americans in many ways, by increasing public safety, improving working conditions, and protecting the air we breathe and the water we drink. Consistent regulatory enforcement also levels the playing field among regulated entities, ensuring that those that fail to comply with the law do not have an unfair advantage over their law-abiding competitors. Greater agency disclosure of compliance and enforcement data will provide Americans with information they need to make informed decisions. Such disclosure can lead the Government to hold itself more accountable, encouraging agencies to identify and address enforcement gaps.
Accordingly, I direct the following:
First, agencies with broad regulatory compliance and administrative enforcement responsibilities, within 120 days of this memorandum, to the extent feasible and permitted by law, shall develop plans to make public information concerning their regulatory compliance and enforcement activities accessible, downloadable, and searchable online. In so doing, agencies should prioritize making accessible information that is most useful to the general public and should consider the use of new technologies to allow the public to have access to real-time data. The independent agencies are encouraged to comply with this directive.
Second, the Federal Chief Information Officer and the Chief Technology Officer shall work with appropriate counterparts in each agency to make such data available online in searchable form, including on centralized platforms such as data.gov, in a manner that facilitates easy access, encourages cross-agency comparisons, and engages the public in new and creative ways of using the information.
Third, the Federal Chief Information Officer and the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB) and their counterparts in each agency, shall work to explore how best to generate and share enforcement and compliance information across the Government, consistent with law. Such data sharing can assist with agencies’ risk-based approaches to enforcement: A lack of compliance in one area by a regulated entity may indicate a need for examination and closer attention by another agency. Efforts to share data across agencies, where appropriate and permitted by law, may help to promote flexible and coordinated enforcement regimes.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
The Director of OMB is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Regulatory Flexibility, Small Business, and Job Creation
Memorandum of President of the United States, Jan. 18, 2011, 76 F.R. 3827, provided:
Memorandum for the Heads of Executive Departments and Agencies
Small businesses play an essential role in the American economy; they help to fuel productivity, economic growth, and job creation. More than half of all Americans working in the private sector either are employed by a small business or own one. During a recent 15-year period, small businesses created more than 60 percent of all new jobs in the Nation.
Although small businesses and new companies provide the foundations for economic growth and job creation, they have faced severe challenges as a result of the recession. One consequence has been the loss of significant numbers of jobs.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, establishes a deep national commitment to achieving statutory goals without imposing unnecessary burdens on the public. The RFA emphasizes the importance of recognizing “differences in the scale and resources of regulated entities” and of considering “alternative regulatory approaches . . . which minimize the significant economic impact of rules on small businesses, small organizations, and small governmental jurisdictions.” 5 U.S.C. 601 note.
To promote its central goals, the RFA imposes a series of requirements designed to ensure that agencies produce regulatory flexibility analyses that give careful consideration to the effects of their regulations on small businesses and explore significant alternatives in order to minimize any significant economic impact on small businesses. Among other things, the RFA requires that when an agency proposing a rule with such impact is required to provide notice of the proposed rule, it must also produce an initial regulatory flexibility analysis that includes discussion of significant alternatives. Significant alternatives include the use of performance rather than design standards; simplification of compliance and reporting requirements for small businesses; establishment of different timetables that take into account the resources of small businesses; and exemption from coverage for small businesses.
Consistent with the goal of open government, the RFA also encourages public participation in and transparency about the rulemaking process. Among other things, the statute requires agencies proposing rules with a significant economic impact on small businesses to provide an opportunity for public comment on any required initial regulatory flexibility analysis, and generally requires agencies promulgating final rules with such significant economic impact to respond, in a final regulatory flexibility analysis, to comments filed by the Chief Counsel for Advocacy of the Small Business Administration.
My Administration is firmly committed to eliminating excessive and unjustified burdens on small businesses, and to ensuring that regulations are designed with careful consideration of their effects, including their cumulative effects, on small businesses. Executive Order 12866 of September 30, 1993, as amended, states, “Each agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities (including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations.”
In the current economic environment, it is especially important for agencies to design regulations in a cost-effective manner consistent with the goals of promoting economic growth, innovation, competitiveness, and job creation.
Accordingly, I hereby direct executive departments and agencies and request independent agencies, when initiating rulemaking that will have a significant economic impact on a substantial number of small entities, to give serious consideration to whether and how it is appropriate, consistent with law and regulatory objectives, to reduce regulatory burdens on small businesses, through increased flexibility. As the RFA recognizes, such flexibility may take many forms, including:
• extended compliance dates that take into account the resources available to small entities;
• performance standards rather than design standards;
• simplification of reporting and compliance requirements (as, for example, through streamlined forms and electronic filing options);
• different requirements for large and small firms; and
• partial or total exemptions.
I further direct that whenever an executive agency chooses, for reasons other than legal limitations, not to provide such flexibility in a proposed or final rule that is likely to have a significant economic impact on a substantial number of small entities, it should explicitly justify its decision not to do so in the explanation that accompanies that proposed or final rule.
Adherence to these requirements is designed to ensure that regulatory actions do not place unjustified economic burdens on small business owners and other small entities. If regulations are preceded by careful analysis, and subjected to public comment, they are less likely to be based on intuition and guesswork and more likely to be justified in light of a clear understanding of the likely consequences of alternative courses of action. With that understanding, agencies will be in a better position to protect the public while avoiding excessive costs and paperwork.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures
Memorandum of President of the United States, May 17, 2013, 78 F.R. 30733, provided:
Memorandum for the Heads of Executive Departments and Agencies
Reliable, safe, and resilient infrastructure is the backbone of an economy built to last. Investing in our Nation’s infrastructure serves as an engine for job creation and economic growth, while bringing immediate and long-term economic benefits to communities across the country. The quality of our infrastructure is critical to maintaining our Nation’s competitive edge in a global economy and to securing our path to energy independence. In taking steps to improve our infrastructure, we must remember that the protection and continued enjoyment of our Nation’s environmental, historical, and cultural resources remain an equally important driver of economic opportunity, resiliency, and quality of life.
Through the implementation of Executive Order 13604 of March 22, 2012 (Improving Performance of Federal Permitting and Review of Infrastructure Projects), executive departments and agencies (agencies) have achieved better outcomes for communities and the environment and realized substantial time savings in review and permitting by prioritizing the deployment of resources to specific sectors and projects, and by implementing best-management practices.
These best-management practices include: integrating project reviews among agencies with permitting responsibilities; ensuring early coordination with other Federal agencies, as well as with State, local, and tribal governments; strategically engaging with, and conducting outreach to, stakeholders; employing project-planning processes and individual project designs that consider local and regional ecological planning goals; utilizing landscape- and watershed-level mitigation practices; promoting the sharing of scientific and environmental data in open-data formats to minimize redundancy, facilitate informed project planning, and identify data gaps early in the review and permitting process; promoting performance-based permitting and regulatory approaches; expanding the use of general permits where appropriate; improving transparency and accountability through the electronic tracking of review and permitting schedules; and applying best environmental and cultural practices as set forth in existing statutes and policies.
Based on the process and policy improvements that are already being implemented across the Federal Government, we can continue to modernize the Federal Government’s review and permitting of infrastructure projects and reduce aggregate timelines for major infrastructure projects by half, while also improving outcomes for communities and the environment by institutionalizing these best-management practices, and by making additional improvements to enhance efficiencies in the application of regulations and processes involving multiple agencies—including expanding the use of web-based techniques for sharing project-related information, facilitating targeted and relevant environmental reviews, and providing meaningful opportunities for public input through stakeholder engagement.
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to advance the goal of cutting aggregate timelines for major infrastructure projects in half, while also improving outcomes for communities and the environment, I hereby direct the following:
Section 1. Modernization of Review and Permitting Regulations, Policies, and Procedures. (a) The Steering Committee on Federal Infrastructure Permitting and Review Process Improvement (Steering Committee), established by Executive Order 13604, shall work with the Chief Performance Officer (CPO), in coordination with the Office of Information and Regulatory Affairs (OIRA) and the Council on Environmental Quality (CEQ), to modernize Federal infrastructure review and permitting regulations, policies, and procedures to significantly reduce the aggregate time required by the Federal Government to make decisions in the review and permitting of infrastructure projects, while improving environmental and community outcomes.
This modernization shall build upon and incorporate reforms identified by agencies pursuant to Executive Order 13604 and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review).
(b) Through an interagency process, coordinated by the CPO and working closely with CEQ and OIRA, the Steering Committee shall conduct the following modernization efforts:
(i) Within 60 days of the date of this memorandum, the Steering Committee shall identify and prioritize opportunities to modernize key regulations, policies, and procedures—both agency-specific and those involving multiple agencies—to reduce the aggregate project review and permitting time, while improving environmental and community outcomes.
(ii) Within 120 days of the date of this memorandum, the Steering Committee shall prepare a plan for a comprehensive modernization of Federal review and permitting for infrastructure projects based on the analysis required by subsection (b)(i) of this section that outlines specific steps for re-engineering both the intra- and inter-agency review and approval processes based on experience implementing Executive Order 13604. The plan shall identify proposed actions and associated timelines to:
(1) institutionalize or expand best practices or process improvements that agencies are already implementing to improve the efficiency of reviews, while improving outcomes for communities and the environment;
(2) revise key review and permitting regulations, policies, and procedures (both agency-specific and Government-wide);
(3) identify high-performance attributes of infrastructure projects that demonstrate how the projects seek to advance existing statutory and policy objectives and how they lead to improved outcomes for communities and the environment, thereby facilitating a faster and more efficient review and permitting process;
(4) create process efficiencies, including additional use of concurrent and integrated reviews;
(5) identify opportunities to use existing share-in-cost authorities and other non-appropriated funding sources to support early coordination and project review;
(6) effectively engage the public and interested stakeholders;
(7) expand coordination with State, local, and tribal governments;
(8) strategically expand the use of information technology (IT) tools and identify priority areas for IT investment to replace paperwork processes, enhance effective project siting decisions, enhance interagency collaboration, and improve the monitoring of project impacts and mitigation commitments; and
(9) identify improvements to mitigation policies to provide project developers with added predictability, facilitate landscape-scale mitigation based on conservation plans and regional environmental assessments, facilitate interagency mitigation plans where appropriate, ensure accountability and the long-term effectiveness of mitigation activities, and utilize innovative mechanisms where appropriate.
The modernization plan prepared pursuant to this section shall take into account funding and resource constraints and shall prioritize implementation accordingly.
(c) Infrastructure sectors covered by the modernization effort include: surface transportation, such as roadways, bridges, railroads, and transit; aviation; ports and related infrastructure, including navigational channels; water resources projects; renewable energy generation; conventional energy production in high-demand areas; electricity transmission; broadband; pipelines; storm water infrastructure; and other sectors as determined by the Steering Committee.
(d) The following agencies or offices and their relevant sub-divisions shall engage in the modernization effort:
(i) the Department of Defense;
(ii) the Department of the Interior;
(iii) the Department of Agriculture;
(iv) the Department of Commerce;
(v) the Department of Transportation;
(vi) the Department of Energy;
(vii) the Department of Homeland Security;
(viii) the Environmental Protection Agency;
(ix) the Advisory Council on Historic Preservation;
(x) the Department of the Army;
(xi) the Council on Environmental Quality; and
(xii) such other agencies or offices as the CPO may invite to participate.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals, or the regulatory review process.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum shall be implemented consistent with Executive Order 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), Executive Order 13175 of November 6, 2000 (Consultation and Coordination with Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation).
(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(e) The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Expanding Federal Support for Predevelopment Activities for Nonfederal Domestic Infrastructure Assets
Memorandum of President of the United States, Jan. 16, 2015, 80 F.R. 3455, provided:
Memorandum for the Heads of Executive Departments and Agencies
The United States is significantly underinvesting in both the maintenance of existing public infrastructure and the development of new infrastructure projects. While there is no replacement for adequate public funding, innovative financing options and increased collaboration between the private and public sectors can help to increase overall investment in infrastructure.
However, a major challenge for innovative infrastructure projects, whether using emerging technologies or alternative financing, is the lack of funding for the phases of infrastructure project development that precede actual construction. Infrastructure projects require upfront costs, commonly known as “predevelopment” costs, for activities such as project and system planning, economic impact analyses, preliminary engineering assessments, and environmental review. Although only accounting for a small percentage of total costs, predevelopment activities have considerable influence on which projects will move forward, where and how they will be built, who will fund them, and who will benefit from them. Yet, in light of factors like fiscal constraints, the extent of overall needs, and risk aversion, State, local, and tribal governments tend to focus scarce resources on constructing and developing conventional projects and addressing their most critical infrastructure needs, thereby underinvesting in predevelopment.
Greater attention to the predevelopment phase could yield a range of benefits—for example, providing the opportunity to develop longer-term, more innovative, and more complex infrastructure projects and facilitating assessment of a range of financing approaches, including public-private partnerships. Additional investment in predevelopment costs also may enable State, local, and tribal governments to utilize innovations in infrastructure design and emerging technologies, reduce long-term costs to infrastructure project users, and provide other benefits, such as improved environmental performance and enhanced resilience to climate change.
The Federal Government can meaningfully expand opportunities for public-private collaboration, encourage more transformational projects, and improve project outcomes by encouraging Federal investment in robust predevelopment activities and providing other forms of support, such as technical assistance, to communities during the predevelopment phase.
Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Section 1. Policy. It shall be the policy of the Federal Government for all executive departments and agencies (agencies) that provide grants, technical assistance, and other forms of support for nonfederal domestic infrastructure assets, or regulate the development of these infrastructure assets, to actively support nonfederal predevelopment activities with all available tools, including grants, technical assistance, and regulatory changes, to the extent permitted by law and consistent with agency mission. Agencies shall seek to make predevelopment funding and support available, as permitted by law and consistent with agency mission and where it is in the public interest and does not supplant existing public investment, to encourage opportunities for private sector investment. Agencies shall pay particular attention to predevelopment activities in sectors where State, local, and tribal governments have traditionally played a significant role, such as surface transportation, drinking water, sewage and storm water management systems, landside ports, and social infrastructure like schools and community facilities.
Sec. 2. Definitions. For the purposes of this memorandum:
(a) “Predevelopment activities” means activities that provide decisionmakers with the opportunity to identify and assess potential infrastructure projects and modifications to existing infrastructure projects, and to advance those projects from the conceptual phase to actual construction. Predevelopment activities include:
(i) project planning, feasibility studies, economic assessments and cost-benefit analyses, and public benefit studies and value-for-money analyses;
(ii) design and engineering;
(iii) financial planning (including the identification of funding and financing options);
(iv) permitting, environmental review, and regulatory processes;
(v) assessment of the impacts of potential projects on the area, including the effect on communities, the environment, the workforce, and wages and benefits, as well as assessment of infrastructure vulnerability and resilience to climate change and other risks; and
(vi) public outreach and community engagement.
(b) “Predevelopment funding” means funding for predevelopment activities and associated costs, such as flexible staff, external advisors, convening potential investment partners, and associated legal costs directly related to predevelopment activities.
Sec. 3. Federal Action to Support Predevelopment Activities. Agencies shall take the following actions to support predevelopment activities:
(a) the Department of Commerce, through the Economic Development Administration’s Public Works grants and Economic Adjustment Assistance grants, and consistent with the programs’ mission and goals, shall take steps to increase assistance for the predevelopment phase of infrastructure projects;
(b) the Department of Transportation shall develop guidance to clarify where predevelopment activities are eligible for funding through its programs. To further encourage early collaboration in the project development process, the Department of Transportation shall also clarify options for providing early feedback into environmental review processes;
(c) the Department of Homeland Security shall clarify for grantees where predevelopment funding is available through the Hazard Mitigation Grant Program;
(d) the Department of Housing and Urban Development shall clarify for grantees how the Community Development Block Grant program and other Federal funding sources can be used for predevelopment activities;
(e) the Department of Agriculture shall develop guidance to clarify where predevelopment activities are eligible for funding through its programs, including grants for water and waste projects pursuant to 7 CFR 1780.1 et seq., the Special Evaluation Assistance for Rural Communities and Households Program, the Community Facilities Grant program, and the Watershed and Flood Prevention Operations Program. To encourage innovative predevelopment work, the Department of Agriculture shall also train Water and Environmental Programs field staff on predevelopment best practices and prioritize predevelopment in the Department of Agriculture’s project development process; and
(f) the other members of the Working Group established in section 3 of my memorandum of July 17, 2014 (Expanding Public-Private Collaboration on Infrastructure Development and Financing), shall take such steps as appropriate to clarify program eligibilities related to predevelopment activities for nonfederal domestic infrastructure assets.
Sec. 4. Implementation, Public Education, and Best Practices. The Departments of Agriculture, Commerce, Labor, Housing and Urban Development, Transportation, Energy, and Homeland Security, and the Environmental Protection Agency shall develop plans for implementing the requirements of this memorandum, providing technical assistance to nonfederal actors engaged in predevelopment activities, and educating grantees and the public on the benefits of predevelopment and the Federal resources available for these activities. These agencies shall also work together to develop a guide for nonfederal actors undertaking nonfederal predevelopment activities that includes best practices on how to evaluate and compare traditional and alternative financing strategies. No later than 60 days after the date of this memorandum, these agencies shall provide these plans and the best practice guide to the Director of the National Economic Council. Subsequently, these agencies shall provide regular updates to the Director of the National Economic Council on their progress in increasing support for predevelopment activities.
Sec. 5. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(c) The Secretary of Transportation is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

§ 602. Regulatory agenda(a) During the months of October and April of each year, each agency shall publish in the Federal Register a regulatory flexibility agenda which shall contain—(1) a brief description of the subject area of any rule which the agency expects to propose or promulgate which is likely to have a significant economic impact on a substantial number of small entities;

(2) a summary of the nature of any such rule under consideration for each subject area listed in the agenda pursuant to paragraph (1), the objectives and legal basis for the issuance of the rule, and an approximate schedule for completing action on any rule for which the agency has issued a general notice of proposed rulemaking,11 So in original. The comma probably should be a semicolon. and

(3) the name and telephone number of an agency official knowledgeable concerning the items listed in paragraph (1).

(b) Each regulatory flexibility agenda shall be transmitted to the Chief Counsel for Advocacy of the Small Business Administration for comment, if any.

(c) Each agency shall endeavor to provide notice of each regulatory flexibility agenda to small entities or their representatives through direct notification or publication of the agenda in publications likely to be obtained by such small entities and shall invite comments upon each subject area on the agenda.

(d) Nothing in this section precludes an agency from considering or acting on any matter not included in a regulatory flexibility agenda, or requires an agency to consider or act on any matter listed in such agenda.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1166.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 603. Initial regulatory flexibility analysis(a) Whenever an agency is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial regulatory flexibility analysis. Such analysis shall describe the impact of the proposed rule on small entities. The initial regulatory flexibility analysis or a summary shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule. The agency shall transmit a copy of the initial regulatory flexibility analysis to the Chief Counsel for Advocacy of the Small Business Administration. In the case of an interpretative rule involving the internal revenue laws of the United States, this chapter applies to interpretative rules published in the Federal Register for codification in the Code of Federal Regulations, but only to the extent that such interpretative rules impose on small entities a collection of information requirement.

(b) Each initial regulatory flexibility analysis required under this section shall contain—(1) a description of the reasons why action by the agency is being considered;

(2) a succinct statement of the objectives of, and legal basis for, the proposed rule;

(3) a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

(4) a description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(5) an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule.

(c) Each initial regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Consistent with the stated objectives of applicable statutes, the analysis shall discuss significant alternatives such as—(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

(3) the use of performance rather than design standards; and

(4) an exemption from coverage of the rule, or any part thereof, for such small entities.

(d)(1) For a covered agency, as defined in section 609(d)(2), each initial regulatory flexibility analysis shall include a description of—(A) any projected increase in the cost of credit for small entities;

(B) any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any increase in the cost of credit for small entities; and

(C) advice and recommendations of representatives of small entities relating to issues described in subparagraphs (A) and (B) and subsection (b).

(2) A covered agency, as defined in section 609(d)(2), shall, for purposes of complying with paragraph (1)(C)—(A) identify representatives of small entities in consultation with the Chief Counsel for Advocacy of the Small Business Administration; and

(B) collect advice and recommendations from the representatives identified under subparagraph (A) relating to issues described in subparagraphs (A) and (B) of paragraph (1) and subsection (b).

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1166; amended Pub. L. 104–121, title II, § 241(a)(1), Mar. 29, 1996, 110 Stat. 864; Pub. L. 111–203, title X, § 1100G(b), July 21, 2010, 124 Stat. 2112.)

Editorial Notes
Amendments2010—Subsec. (d). Pub. L. 111–203 added subsec. (d).
1996—Subsec. (a). Pub. L. 104–121, § 241(a)(1)(B), inserted at end “In the case of an interpretative rule involving the internal revenue laws of the United States, this chapter applies to interpretative rules published in the Federal Register for codification in the Code of Federal Regulations, but only to the extent that such interpretative rules impose on small entities a collection of information requirement.”
Pub. L. 104–121, § 241(a)(1)(A), which directed the insertion of “, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States” after “proposed rule” was executed by making the insertion where those words appeared in first sentence to reflect the probable intent of Congress.

Statutory Notes and Related Subsidiaries
Effective Date of 2010 AmendmentAmendment by Pub. L. 111–203 effective on the designated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of this title.

Effective Date of 1996 AmendmentAmendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective DateSection effective Jan. 1, 1981, except that the requirements of this section applicable only to rules for which a notice of proposed rulemaking was issued on or after Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 604. Final regulatory flexibility analysis(a) When an agency promulgates a final rule under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue laws of the United States as described in section 603(a), the agency shall prepare a final regulatory flexibility analysis. Each final regulatory flexibility analysis shall contain—(1) a statement of the need for, and objectives of, the rule;

(2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;

(3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

(4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;

(5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(6) 11 So in original. Two pars. (6) have been enacted. a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected; and

(6) 1 for a covered agency, as defined in section 609(d)(2), a description of the steps the agency has taken to minimize any additional cost of credit for small entities.

(b) The agency shall make copies of the final regulatory flexibility analysis available to members of the public and shall publish in the Federal Register such analysis or a summary thereof.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1167; amended Pub. L. 104–121, title II, § 241(b), Mar. 29, 1996, 110 Stat. 864; Pub. L. 111–203, title X, § 1100G(c), July 21, 2010, 124 Stat. 2113; Pub. L. 111–240, title I, § 1601, Sept. 27, 2010, 124 Stat. 2551.)

Editorial Notes
Amendments2010—Subsec. (a)(1). Pub. L. 111–240, § 1601(1), struck out “succinct” before “statement”.
Subsec. (a)(2). Pub. L. 111–240, § 1601(2), substituted “statement” for “summary” before “of the significant issues” and “of the assessment”.
Subsec. (a)(3), (4). Pub. L. 111–240, § 1601(3), (4), added par. (3) and redesignated former par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (a)(5). Pub. L. 111–240, § 1601(3), redesignated par. (4) as (5). Former par. (5), relating to description of steps taken to minimize the significant economic impact on small entities, redesignated (6).
Pub. L. 111–203, § 1100G(c)(1), which directed amendment of par. (4) by striking “and” at the end, was executed to par. (5) to reflect the probable intent of Congress and the intervening redesignation of par. (4) as (5) by Pub. L. 111–240, § 1601(3). See above.
Subsec. (a)(6). Pub. L. 111–240, § 1601(3), redesignated par. (5), relating to description of steps taken to minimize the significant economic impact on small entities, as (6).
Pub. L. 111–203, § 1100G(c)(3), added par. (6) relating to description of steps taken to minimize any additional cost of credit for small entities.
Pub. L. 111–203, § 1100G(c)(2), which directed amendment of par. (5) by substituting “; and” for period at end, was executed to par. (6), relating to description of steps taken to minimize the significant economic impact on small entities, to reflect the probable intent of Congress and the intervening redesignation of par. (5) as (6) by Pub. L. 111–240, § 1601(3). See above.
1996—Subsec. (a). Pub. L. 104–121, § 241(b)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “When an agency promulgates a final rule under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a final regulatory flexibility analysis. Each final regulatory flexibility analysis shall contain—
“(1) a succinct statement of the need for, and the objectives of, the rule;
“(2) a summary of the issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; and
“(3) a description of each of the significant alternatives to the rule consistent with the stated objectives of applicable statutes and designed to minimize any significant economic impact of the rule on small entities which was considered by the agency, and a statement of the reasons why each one of such alternatives was rejected.”
Subsec. (b). Pub. L. 104–121, § 241(b)(2), substituted “such analysis or a summary thereof.” for “at the time of publication of the final rule under section 553 of this title a statement describing how the public may obtain such copies.”

Statutory Notes and Related Subsidiaries
Effective Date of 2010 AmendmentAmendment by Pub. L. 111–203 effective on the designated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of this title.

Effective Date of 1996 AmendmentAmendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective DateSection effective Jan. 1, 1981, except that the requirements of this section applicable only to rules for which a notice of proposed rulemaking was issued on or after Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 605. Avoidance of duplicative or unnecessary analyses(a) Any Federal agency may perform the analyses required by sections 602, 603, and 604 of this title in conjunction with or as a part of any other agenda or analysis required by any other law if such other analysis satisfies the provisions of such sections.

(b) Sections 603 and 604 of this title shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. If the head of the agency makes a certification under the preceding sentence, the agency shall publish such certification in the Federal Register at the time of publication of general notice of proposed rulemaking for the rule or at the time of publication of the final rule, along with a statement providing the factual basis for such certification. The agency shall provide such certification and statement to the Chief Counsel for Advocacy of the Small Business Administration.

(c) In order to avoid duplicative action, an agency may consider a series of closely related rules as one rule for the purposes of sections 602, 603, 604 and 610 of this title.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1167; amended Pub. L. 104–121, title II, § 243(a), Mar. 29, 1996, 110 Stat. 866.)

Editorial Notes
Amendments1996—Subsec. (b). Pub. L. 104–121 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Sections 603 and 604 of this title shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. If the head of the agency makes a certification under the preceding sentence, the agency shall publish such certification in the Federal Register, at the time of publication of general notice of proposed rulemaking for the rule or at the time of publication of the final rule, along with a succinct statement explaining the reasons for such certification, and provide such certification and statement to the Chief Counsel for Advocacy of the Small Business Administration.”

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentAmendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 606. Effect on other law
The requirements of sections 603 and 604 of this title do not alter in any manner standards otherwise applicable by law to agency action.
(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1168.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 607. Preparation of analyses
In complying with the provisions of sections 603 and 604 of this title, an agency may provide either a quantifiable or numerical description of the effects of a proposed rule or alternatives to the proposed rule, or more general descriptive statements if quantification is not practicable or reliable.
(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1168.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 608. Procedure for waiver or delay of completion(a) An agency head may waive or delay the completion of some or all of the requirements of section 603 of this title by publishing in the Federal Register, not later than the date of publication of the final rule, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes compliance or timely compliance with the provisions of section 603 of this title impracticable.

(b) Except as provided in section 605(b), an agency head may not waive the requirements of section 604 of this title. An agency head may delay the completion of the requirements of section 604 of this title for a period of not more than one hundred and eighty days after the date of publication in the Federal Register of a final rule by publishing in the Federal Register, not later than such date of publication, a written finding, with reasons therefor, that the final rule is being promulgated in response to an emergency that makes timely compliance with the provisions of section 604 of this title impracticable. If the agency has not prepared a final regulatory analysis pursuant to section 604 of this title within one hundred and eighty days from the date of publication of the final rule, such rule shall lapse and have no effect. Such rule shall not be repromulgated until a final regulatory flexibility analysis has been completed by the agency.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1168.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 609. Procedures for gathering comments(a) When any rule is promulgated which will have a significant economic impact on a substantial number of small entities, the head of the agency promulgating the rule or the official of the agency with statutory responsibility for the promulgation of the rule shall assure that small entities have been given an opportunity to participate in the rulemaking for the rule through the reasonable use of techniques such as—(1) the inclusion in an advanced notice of proposed rulemaking, if issued, of a statement that the proposed rule may have a significant economic effect on a substantial number of small entities;

(2) the publication of general notice of proposed rulemaking in publications likely to be obtained by small entities;

(3) the direct notification of interested small entities;

(4) the conduct of open conferences or public hearings concerning the rule for small entities including soliciting and receiving comments over computer networks; and

(5) the adoption or modification of agency procedural rules to reduce the cost or complexity of participation in the rulemaking by small entities.

(b) Prior to publication of an initial regulatory flexibility analysis which a covered agency is required to conduct by this chapter—(1) a covered agency shall notify the Chief Counsel for Advocacy of the Small Business Administration and provide the Chief Counsel with information on the potential impacts of the proposed rule on small entities and the type of small entities that might be affected;

(2) not later than 15 days after the date of receipt of the materials described in paragraph (1), the Chief Counsel shall identify individuals representative of affected small entities for the purpose of obtaining advice and recommendations from those individuals about the potential impacts of the proposed rule;

(3) the agency shall convene a review panel for such rule consisting wholly of full time Federal employees of the office within the agency responsible for carrying out the proposed rule, the Office of Information and Regulatory Affairs within the Office of Management and Budget, and the Chief Counsel;

(4) the panel shall review any material the agency has prepared in connection with this chapter, including any draft proposed rule, collect advice and recommendations of each individual small entity representative identified by the agency after consultation with the Chief Counsel, on issues related to subsections 603(b), paragraphs (3), (4) and (5) and 603(c);

(5) not later than 60 days after the date a covered agency convenes a review panel pursuant to paragraph (3), the review panel shall report on the comments of the small entity representatives and its findings as to issues related to subsections 603(b), paragraphs (3), (4) and (5) and 603(c), provided that such report shall be made public as part of the rulemaking record; and

(6) where appropriate, the agency shall modify the proposed rule, the initial regulatory flexibility analysis or the decision on whether an initial regulatory flexibility analysis is required.

(c) An agency may in its discretion apply subsection (b) to rules that the agency intends to certify under subsection 605(b), but the agency believes may have a greater than de minimis impact on a substantial number of small entities.

(d) For purposes of this section, the term “covered agency” means—(1) the Environmental Protection Agency;

(2) the Consumer Financial Protection Bureau of the Federal Reserve System; and

(3) the Occupational Safety and Health Administration of the Department of Labor.

(e) The Chief Counsel for Advocacy, in consultation with the individuals identified in subsection (b)(2), and with the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget, may waive the requirements of subsections (b)(3), (b)(4), and (b)(5) by including in the rulemaking record a written finding, with reasons therefor, that those requirements would not advance the effective participation of small entities in the rulemaking process. For purposes of this subsection, the factors to be considered in making such a finding are as follows:(1) In developing a proposed rule, the extent to which the covered agency consulted with individuals representative of affected small entities with respect to the potential impacts of the rule and took such concerns into consideration.

(2) Special circumstances requiring prompt issuance of the rule.

(3) Whether the requirements of subsection (b) would provide the individuals identified in subsection (b)(2) with a competitive advantage relative to other small entities.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1168; amended Pub. L. 104–121, title II, § 244(a), Mar. 29, 1996, 110 Stat. 867; Pub. L. 111–203, title X, § 1100G(a), July 21, 2010, 124 Stat. 2112.)

Editorial Notes
Amendments2010—Subsec. (d). Pub. L. 111–203 substituted “means—” for “means the Environmental Protection Agency and the Occupational Safety and Health Administration of the Department of Labor.” and added pars. (1) to (3).
1996—Pub. L. 104–121, § 244(a)(2), (3), designated existing provisions as subsec. (a) and inserted “including soliciting and receiving comments over computer networks” after “entities” in par. (4).
Pub. L. 104–121, § 244(a)(1), which directed insertion of “the reasonable use of” before “techniques,” in introductory provisions, was executed by making the insertion in text which did not contain a comma after the word “techniques” to reflect the probable intent of Congress.
Subsecs. (b) to (e). Pub. L. 104–121, § 244(a)(4), added subsecs. (b) to (e).

Statutory Notes and Related Subsidiaries
Effective Date of 2010 AmendmentAmendment by Pub. L. 111–203 effective on the designated transfer date, see section 1100H of Pub. L. 111–203, set out as a note under section 552a of this title.

Effective Date of 1996 AmendmentAmendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

Small Business Advocacy ChairpersonsPub. L. 104–121, title II, § 244(b), Mar. 29, 1996, 110 Stat. 868, provided that: “Not later than 30 days after the date of enactment of this Act [Mar. 29, 1996], the head of each covered agency that has conducted a final regulatory flexibility analysis shall designate a small business advocacy chairperson using existing personnel to the extent possible, to be responsible for implementing this section and to act as permanent chair of the agency’s review panels established pursuant to this section.”

§ 610. Periodic review of rules(a) Within one hundred and eighty days after the effective date of this chapter, each agency shall publish in the Federal Register a plan for the periodic review of the rules issued by the agency which have or will have a significant economic impact upon a substantial number of small entities. Such plan may be amended by the agency at any time by publishing the revision in the Federal Register. The purpose of the review shall be to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes, to minimize any significant economic impact of the rules upon a substantial number of such small entities. The plan shall provide for the review of all such agency rules existing on the effective date of this chapter within ten years of that date and for the review of such rules adopted after the effective date of this chapter within ten years of the publication of such rules as the final rule. If the head of the agency determines that completion of the review of existing rules is not feasible by the established date, he shall so certify in a statement published in the Federal Register and may extend the completion date by one year at a time for a total of not more than five years.

(b) In reviewing rules to minimize any significant economic impact of the rule on a substantial number of small entities in a manner consistent with the stated objectives of applicable statutes, the agency shall consider the following factors—(1) the continued need for the rule;

(2) the nature of complaints or comments received concerning the rule from the public;

(3) the complexity of the rule;

(4) the extent to which the rule overlaps, duplicates or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and

(5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

(c) Each year, each agency shall publish in the Federal Register a list of the rules which have a significant economic impact on a substantial number of small entities, which are to be reviewed pursuant to this section during the succeeding twelve months. The list shall include a brief description of each rule and the need for and legal basis of such rule and shall invite public comment upon the rule.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1169.)

Editorial Notes

References in TextThe effective date of this chapter, referred to in subsec. (a), is Jan. 1, 1981. See Effective Date note set out under section 601 of this title.

Statutory Notes and Related Subsidiaries
Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 611. Judicial review(a)(1) For any rule subject to this chapter, a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 601, 604, 605(b), 608(b), and 610 in accordance with chapter 7. Agency compliance with sections 607 and 609(a) shall be judicially reviewable in connection with judicial review of section 604.

(2) Each court having jurisdiction to review such rule for compliance with section 553, or under any other provision of law, shall have jurisdiction to review any claims of noncompliance with sections 601, 604, 605(b), 608(b), and 610 in accordance with chapter 7. Agency compliance with sections 607 and 609(a) shall be judicially reviewable in connection with judicial review of section 604.

(3)(A) A small entity may seek such review during the period beginning on the date of final agency action and ending one year later, except that where a provision of law requires that an action challenging a final agency action be commenced before the expiration of one year, such lesser period shall apply to an action for judicial review under this section.

(B) In the case where an agency delays the issuance of a final regulatory flexibility analysis pursuant to section 608(b) of this chapter, an action for judicial review under this section shall be filed not later than—(i) one year after the date the analysis is made available to the public, or

(ii) where a provision of law requires that an action challenging a final agency regulation be commenced before the expiration of the 1-year period, the number of days specified in such provision of law that is after the date the analysis is made available to the public.

(4) In granting any relief in an action under this section, the court shall order the agency to take corrective action consistent with this chapter and chapter 7, including, but not limited to—(A) remanding the rule to the agency, and

(B) deferring the enforcement of the rule against small entities unless the court finds that continued enforcement of the rule is in the public interest.

(5) Nothing in this subsection shall be construed to limit the authority of any court to stay the effective date of any rule or provision thereof under any other provision of law or to grant any other relief in addition to the requirements of this section.

(b) In an action for the judicial review of a rule, the regulatory flexibility analysis for such rule, including an analysis prepared or corrected pursuant to paragraph (a)(4), shall constitute part of the entire record of agency action in connection with such review.

(c) Compliance or noncompliance by an agency with the provisions of this chapter shall be subject to judicial review only in accordance with this section.

(d) Nothing in this section bars judicial review of any other impact statement or similar analysis required by any other law if judicial review of such statement or analysis is otherwise permitted by law.

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1169; amended Pub. L. 104–121, title II, § 242, Mar. 29, 1996, 110 Stat. 865.)

Editorial Notes
Amendments1996—Pub. L. 104–121 amended section generally. Prior to amendment, section read as follows:
“(a) Except as otherwise provided in subsection (b), any determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review.
“(b) Any regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or noncompliance of the agency with the provisions of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review.
“(c) Nothing in this section bars judicial review of any other impact statement or similar analysis required by any other law if judicial review of such statement or analysis is otherwise provided by law.”

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentAmendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

§ 612. Reports and intervention rights(a) The Chief Counsel for Advocacy of the Small Business Administration shall monitor agency compliance with this chapter and shall report at least annually thereon to the President and to the Committees on the Judiciary and Small Business of the Senate and House of Representatives.

(b) The Chief Counsel for Advocacy of the Small Business Administration is authorized to appear as amicus curiae in any action brought in a court of the United States to review a rule. In any such action, the Chief Counsel is authorized to present his or her views with respect to compliance with this chapter, the adequacy of the rulemaking record with respect to small entities and the effect of the rule on small entities.

(c) A court of the United States shall grant the application of the Chief Counsel for Advocacy of the Small Business Administration to appear in any such action for the purposes described in subsection (b).

(Added Pub. L. 96–354, § 3(a), Sept. 19, 1980, 94 Stat. 1170; amended Pub. L. 104–121, title II, § 243(b), Mar. 29, 1996, 110 Stat. 866.)

Editorial Notes
Amendments1996—Subsec. (a). Pub. L. 104–121, § 243(b)(1), which directed substitution of “the Committees on the Judiciary and Small Business of the Senate and House of Representatives” for “the committees on the Judiciary of the Senate and the House of Representatives, the Select Committee on Small Business of the Senate, and the Committee on Small Business of the House of Representatives”, was executed by making the substitution for “the Committees on the Judiciary of the Senate and House of Representatives, the Select Committee on Small Business of the Senate, and the Committee on Small Business of the House of Representatives” to reflect the probable intent of Congress.
Subsec. (b). Pub. L. 104–121, § 243(b)(2), substituted “his or her views with respect to compliance with this chapter, the adequacy of the rulemaking record with respect to small entities and the” for “his views with respect to the”.

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Small Business of Senate changed to Committee on Small Business and Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June 29, 2001.

Effective Date of 1996 AmendmentAmendment by Pub. L. 104–121 effective on expiration of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section 245 of Pub. L. 104–121, set out as a note under section 601 of this title.

Effective DateSection effective Jan. 1, 1981, see section 4 of Pub. L. 96–354, set out as a note under section 601 of this title.

Termination of Reporting RequirementsFor termination, effective May 15, 2000, of reporting provisions in subsec. (a) of this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 191 of House Document No. 103–7.

CHAPTER 7—JUDICIAL REVIEW

Sec.

701.Application; definitions.

702.Right of review.

703.Form and venue of proceeding.

704.Actions reviewable.

705.Relief pending review.

706.Scope of review.

Statutory Notes and Related Subsidiaries
Short TitleThe provisions of sections 551 to 559 of this title and this chapter were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the “Administrative Procedure Act”. That Act was repealed as part of the general revision of this title by Pub. L. 89–554 and its provisions incorporated into sections 551 to 559 of this title and this chapter.

§ 701. Application; definitions(a) This chapter applies, according to the provisions thereof, except to the extent that—(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

(b) For the purpose of this chapter—(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; 11 See References in Text note below. and

(2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency action” have the meanings given them by section 551 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 103–272, § 5(a), July 5, 1994, 108 Stat. 1373; Pub. L. 111–350, § 5(a)(3), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 1009 (introductory clause).June 11, 1946, ch. 324, § 10 (introductory clause), 60 Stat. 243.

In subsection (a), the words “This chapter applies, according to the provisions thereof,” are added to avoid the necessity of repeating the introductory clause of former section 1009 in sections 702–706.
Subsection (b) is added on authority of section 2 of the Act of June 11, 1946, ch. 324, 60 Stat. 237, as amended, which is carried into section 551 of this title.
In subsection (b)(1)(G), the words “or naval” are omitted as included in “military”.
In subsection (b)(1)(H), the words “functions which by law expire on the termination of present hostilities, within any fixed period thereafter, or before July 1, 1947” are omitted as executed. Reference to the “Selective Training and Service Act of 1940” is omitted as that Act expired on Mar. 31, 1947. Reference to the “Sugar Control Extension Act of 1947” is omitted as that Act expired on Mar. 31, 1948. References to the “Housing and Rent Act of 1947, as amended” and the “Veterans’ Emergency Housing Act of 1946” have been consolidated as they are related. The reference to former section 1641(b)(2) of title 50, appendix, is retained notwithstanding its repeal by § 111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–256, 75 Stat. 538, since § 111(c) of the Act provides that a reference in other Acts to a provision of law repealed by § 111(a) shall be considered to be a reference to the appropriate provisions of Pub. L. 87–256.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextSections 1884 and 1891–1902 of title 50, appendix, referred to in subsec. (b)(1)(H), were a part of the various Housing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to Title 50, War and National Defense, and had been repealed or omitted from the Code as executed prior to the elimination of the Appendix to Title 50. See Elimination of Title 50, Appendix note preceding section 1 of Title 50. Section 1641 of title 50, appendix, referred to in subsec. (b)(1)(H), was repealed by Pub. L. 87–256, § 111(a)(1), Sept. 21, 1961, 75 Stat. 538.

Amendments2011—Subsec. (b)(1)(H). Pub. L. 111–350 struck out “chapter 2 of title 41;” after “title 12;”.
1994—Subsec. (b)(1)(H). Pub. L. 103–272 substituted “subchapter II of chapter 471 of title 49; or sections” for “or sections 1622,”.

§ 702. Right of review
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, § 1, Oct. 21, 1976, 90 Stat. 2721.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1009(a).June 11, 1946, ch. 324, § 10(a), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1976—Pub. L. 94–574 removed the defense of sovereign immunity as a bar to judicial review of Federal administrative action otherwise subject to judicial review.

§ 703. Form and venue of proceeding
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, § 1, Oct. 21, 1976, 90 Stat. 2721.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1009(b).June 11, 1946, ch. 324, § 10(b), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1976—Pub. L. 94–574 provided that if no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer as defendant.

§ 704. Actions reviewable
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1009(c).June 11, 1946, ch. 324, § 10(c), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.

§ 705. Relief pending review
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1009(d).June 11, 1946, ch. 324, § 10(d), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.

§ 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1009(e).June 11, 1946, ch. 324, § 10(e), 60 Stat. 243.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface of this report.

Statutory Notes and Related Subsidiaries
Abbreviation of RecordPub. L. 85–791, Aug. 28, 1958, 72 Stat. 941, which authorized abbreviation of record on review or enforcement of orders of administrative agencies and review on the original papers, provided, in section 35 thereof, that: “This Act [see Tables for classification] shall not be construed to repeal or modify any provision of the Administrative Procedure Act [see Short Title note set out preceding section 551 of this title].”

CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

Sec.

801.Congressional review.

802.Congressional disapproval procedure.

803.Special rule on statutory, regulatory, and judicial deadlines.

804.Definitions.

805.Judicial review.

806.Applicability; severability.

807.Exemption for monetary policy.

808.Effective date of certain rules.

§ 801. Congressional review(a)(1)(A) Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—(i) a copy of the rule;

(ii) a concise general statement relating to the rule, including whether it is a major rule; and

(iii) the proposed effective date of the rule.

(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit to the Comptroller General and make available to each House of Congress—(i) a complete copy of the cost-benefit analysis of the rule, if any;

(ii) the agency’s actions relevant to sections 603, 604, 605, 607, and 609;

(iii) the agency’s actions relevant to sections 202, 203, 204, and 205 of the Unfunded Mandates Reform Act of 1995; and

(iv) any other relevant information or requirements under any other Act and any relevant Executive orders.

(C) Upon receipt of a report submitted under subparagraph (A), each House shall provide copies of the report to the chairman and ranking member of each standing committee with jurisdiction under the rules of the House of Representatives or the Senate to report a bill to amend the provision of law under which the rule is issued.

(2)(A) The Comptroller General shall provide a report on each major rule to the committees of jurisdiction in each House of the Congress by the end of 15 calendar days after the submission or publication date as provided in section 802(b)(2). The report of the Comptroller General shall include an assessment of the agency’s compliance with procedural steps required by paragraph (1)(B).

(B) Federal agencies shall cooperate with the Comptroller General by providing information relevant to the Comptroller General’s report under subparagraph (A).

(3) A major rule relating to a report submitted under paragraph (1) shall take effect on the latest of—(A) the later of the date occurring 60 days after the date on which—(i) the Congress receives the report submitted under paragraph (1); or

(ii) the rule is published in the Federal Register, if so published;

(B) if the Congress passes a joint resolution of disapproval described in section 802 relating to the rule, and the President signs a veto of such resolution, the earlier date—(i) on which either House of Congress votes and fails to override the veto of the President; or

(ii) occurring 30 session days after the date on which the Congress received the veto and objections of the President; or

(C) the date the rule would have otherwise taken effect, if not for this section (unless a joint resolution of disapproval under section 802 is enacted).

(4) Except for a major rule, a rule shall take effect as otherwise provided by law after submission to Congress under paragraph (1).

(5) Notwithstanding paragraph (3), the effective date of a rule shall not be delayed by operation of this chapter beyond the date on which either House of Congress votes to reject a joint resolution of disapproval under section 802.

(b)(1) A rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule.

(2) A rule that does not take effect (or does not continue) under paragraph (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.

(c)(1) Notwithstanding any other provision of this section (except subject to paragraph (3)), a rule that would not take effect by reason of subsection (a)(3) may take effect, if the President makes a determination under paragraph (2) and submits written notice of such determination to the Congress.

(2) Paragraph (1) applies to a determination made by the President by Executive order that the rule should take effect because such rule is—(A) necessary because of an imminent threat to health or safety or other emergency;

(B) necessary for the enforcement of criminal laws;

(C) necessary for national security; or

(D) issued pursuant to any statute implementing an international trade agreement.

(3) An exercise by the President of the authority under this subsection shall have no effect on the procedures under section 802 or the effect of a joint resolution of disapproval under this section.

(d)(1) In addition to the opportunity for review otherwise provided under this chapter, in the case of any rule for which a report was submitted in accordance with subsection (a)(1)(A) during the period beginning on the date occurring—(A) in the case of the Senate, 60 session days, or

(B) in the case of the House of Representatives, 60 legislative days,

before the date the Congress adjourns a session of Congress through the date on which the same or succeeding Congress first convenes its next session, section 802 shall apply to such rule in the succeeding session of Congress.

(2)(A) In applying section 802 for purposes of such additional review, a rule described under paragraph (1) shall be treated as though—(i) such rule were published in the Federal Register (as a rule that shall take effect) on—(I) in the case of the Senate, the 15th session day, or

(II) in the case of the House of Representatives, the 15th legislative day,

after the succeeding session of Congress first convenes; and

(ii) a report on such rule were submitted to Congress under subsection (a)(1) on such date.

(B) Nothing in this paragraph shall be construed to affect the requirement under subsection (a)(1) that a report shall be submitted to Congress before a rule can take effect.

(3) A rule described under paragraph (1) shall take effect as otherwise provided by law (including other subsections of this section).

(e)(1) For purposes of this subsection, section 802 shall also apply to any major rule promulgated between March 1, 1996, and the date of the enactment of this chapter.

(2) In applying section 802 for purposes of Congressional review, a rule described under paragraph (1) shall be treated as though—(A) such rule were published in the Federal Register on the date of enactment of this chapter; and

(B) a report on such rule were submitted to Congress under subsection (a)(1) on such date.

(3) The effectiveness of a rule described under paragraph (1) shall be as otherwise provided by law, unless the rule is made of no force or effect under section 802.

(f) Any rule that takes effect and later is made of no force or effect by enactment of a joint resolution under section 802 shall be treated as though such rule had never taken effect.

(g) If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval.

(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 868.)

Editorial Notes

References in TextSections 202, 203, 204, and 205 of the Unfunded Mandates Reform Act of 1995, referred to in subsec. (a)(1)(B)(iii), are classified to sections 1532, 1533, 1534, and 1535, respectively, of Title 2, The Congress.
The date of the enactment of this chapter, referred to in subsec. (e)(1), (2), is the date of the enactment of Pub. L. 104–121, which was approved Mar. 29, 1996.

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 104–121, title II, § 252, Mar. 29, 1996, 110 Stat. 874, provided that: “The amendment made by section 351 [probably means section 251, enacting this chapter] shall take effect on the date of enactment of this Act [Mar. 29, 1996].”

Short TitleThis chapter is popularly known as the “Congressional Review Act”.

Truth in RegulatingPub. L. 106–312, Oct. 17, 2000, 114 Stat. 1248, as amended by Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814, provided that:
“SECTION 1. SHORT TITLE.“This Act may be cited as the ‘Truth in Regulating Act of 2000’.

“SEC. 2. PURPOSES.“The purposes of this Act are to—“(1) increase the transparency of important regulatory decisions;

“(2) promote effective congressional oversight to ensure that agency rules fulfill statutory requirements in an efficient, effective, and fair manner; and

“(3) increase the accountability of Congress and the agencies to the people they serve.

“SEC. 3. DEFINITIONS.“In this Act, the term—“(1) ‘agency’ has the meaning given such term under section 551(1) of title 5, United States Code;

“(2) ‘economically significant rule’ means any proposed or final rule, including an interim or direct final rule, that may have an annual effect on the economy of $100,000,000 or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; and

“(3) ‘independent evaluation’ means a substantive evaluation of the agency’s data, methodology, and assumptions used in developing the economically significant rule, including—“(A) an explanation of how any strengths or weaknesses in those data, methodology, and assumptions support or detract from conclusions reached by the agency; and

“(B) the implications, if any, of those strengths or weaknesses for the rulemaking.

“SEC. 4. PILOT PROJECT FOR REPORT ON RULES.“(a) In General.—“(1) Request for review.—When an agency publishes an economically significant rule, a chairman or ranking member of a committee of jurisdiction of either House of Congress may request the Comptroller General of the United States to review the rule.

“(2) Report.—The Comptroller General shall submit a report on each economically significant rule selected under paragraph (4) to the committees of jurisdiction in each House of Congress not later than 180 calendar days after a committee request is received. The report shall include an independent evaluation of the economically significant rule by the Comptroller General.

“(3) Independent evaluation.—The independent evaluation of the economically significant rule by the Comptroller General under paragraph (2) shall include—“(A) an evaluation of the agency’s analysis of the potential benefits of the rule, including any beneficial effects that cannot be quantified in monetary terms and the identification of the persons or entities likely to receive the benefits;

“(B) an evaluation of the agency’s analysis of the potential costs of the rule, including any adverse effects that cannot be quantified in monetary terms and the identification of the persons or entities likely to bear the costs;

“(C) an evaluation of the agency’s analysis of alternative approaches set forth in the notice of proposed rulemaking and in the rulemaking record, as well as of any regulatory impact analysis, federalism assessment, or other analysis or assessment prepared by the agency or required for the economically significant rule; and

“(D) a summary of the results of the evaluation of the Comptroller General and the implications of those results.

“(4) Procedures for priorities of requests.—The Comptroller General shall have discretion to develop procedures for determining the priority and number of requests for review under paragraph (1) for which a report will be submitted under paragraph (2).

“(b) Authority of Comptroller General.—Each agency shall promptly cooperate with the Comptroller General in carrying out this Act. Nothing in this Act is intended to expand or limit the authority of the Government Accountability Office.

“SEC. 5. AUTHORIZATION OF APPROPRIATIONS.“There are authorized to be appropriated to the Government Accountability Office to carry out this Act $5,200,000 for each of fiscal years 2000 through 2002.

“SEC. 6. EFFECTIVE DATE AND DURATION OF PILOT PROJECT.“(a) Effective Date.—This Act and the amendments made by this Act shall take effect 90 days after the date of enactment of this Act [Oct. 17, 2000].

“(b) Duration of Pilot Project.—The pilot project under this Act shall continue for a period of 3 years, if in each fiscal year, or portion thereof included in that period, a specific annual appropriation not less than $5,200,000 or the pro-rated equivalent thereof shall have been made for the pilot project.

“(c) Report.—Before the conclusion of the 3-year period, the Comptroller General shall submit to Congress a report reviewing the effectiveness of the pilot project and recommending whether or not Congress should permanently authorize the pilot project.”

§ 802. Congressional disapproval procedure(a) For purposes of this section, the term “joint resolution” means only a joint resolution introduced in the period beginning on the date on which the report referred to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the resolving clause of which is as follows: “That Congress disapproves the rule submitted by the __ relating to __, and such rule shall have no force or effect.” (The blank spaces being appropriately filled in).

(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction.

(2) For purposes of this section, the term “submission or publication date” means the later of the date on which—(A) the Congress receives the report submitted under section 801(a)(1); or

(B) the rule is published in the Federal Register, if so published.

(c) In the Senate, if the committee to which is referred a joint resolution described in subsection (a) has not reported such joint resolution (or an identical joint resolution) at the end of 20 calendar days after the submission or publication date defined under subsection (b)(2), such committee may be discharged from further consideration of such joint resolution upon a petition supported in writing by 30 Members of the Senate, and such joint resolution shall be placed on the calendar.

(d)(1) In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged (under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of.

(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order.

(3) In the Senate, immediately following the conclusion of the debate on a joint resolution described in subsection (a), and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of the joint resolution shall occur.

(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a joint resolution described in subsection (a) shall be decided without debate.

(e) In the Senate the procedure specified in subsection (c) or (d) shall not apply to the consideration of a joint resolution respecting a rule—(1) after the expiration of the 60 session days beginning with the applicable submission or publication date, or

(2) if the report under section 801(a)(1)(A) was submitted during the period referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session day after the succeeding session of Congress first convenes.

(f) If, before the passage by one House of a joint resolution of that House described in subsection (a), that House receives from the other House a joint resolution described in subsection (a), then the following procedures shall apply:(1) The joint resolution of the other House shall not be referred to a committee.

(2) With respect to a joint resolution described in subsection (a) of the House receiving the joint resolution—(A) the procedure in that House shall be the same as if no joint resolution had been received from the other House; but

(B) the vote on final passage shall be on the joint resolution of the other House.

(g) This section is enacted by Congress—(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 871.)

§ 803. Special rule on statutory, regulatory, and judicial deadlines(a) In the case of any deadline for, relating to, or involving any rule which does not take effect (or the effectiveness of which is terminated) because of enactment of a joint resolution under section 802, that deadline is extended until the date 1 year after the date of enactment of the joint resolution. Nothing in this subsection shall be construed to affect a deadline merely by reason of the postponement of a rule’s effective date under section 801(a).

(b) The term “deadline” means any date certain for fulfilling any obligation or exercising any authority established by or under any Federal statute or regulation, or by or under any court order implementing any Federal statute or regulation.

(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 873.)

§ 804. Definitions
For purposes of this chapter—(1) The term “Federal agency” means any agency as that term is defined in section 551(1).

(2) The term “major rule” means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more;

(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or

(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The term does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.

(3) The term “rule” has the meaning given such term in section 551, except that such term does not include—(A) any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;

(B) any rule relating to agency management or personnel; or

(C) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 873.)

Editorial Notes

References in TextThe Telecommunications Act of 1996, referred to in par. (2), is Pub. L. 104–104, Feb. 8, 1996, 110 Stat. 56. For complete classification of this Act to the Code, see Short Title of 1996 Amendment note set out under section 609 of Title 47, Telecommunications, and Tables.

§ 805. Judicial review
No determination, finding, action, or omission under this chapter shall be subject to judicial review.
(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 873.)

§ 806. Applicability; severability(a) This chapter shall apply notwithstanding any other provision of law.

(b) If any provision of this chapter or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this chapter, shall not be affected thereby.

(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 873.)

§ 807. Exemption for monetary policy
Nothing in this chapter shall apply to rules that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee.
(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 874.)

§ 808. Effective date of certain rules
Notwithstanding section 801—(1) any rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping, or

(2) any rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,

shall take effect at such time as the Federal agency promulgating the rule determines.
(Added Pub. L. 104–121, title II, § 251, Mar. 29, 1996, 110 Stat. 874.)

CHAPTER 9—EXECUTIVE REORGANIZATION

Sec.

901.Purpose.

902.Definitions.

903.Reorganization plans.

904.Additional contents of reorganization plan.

905.Limitations on powers.11 So in original. Does not conform to section catchline.

906.Effective date and publication of reorganization plans.

907.Effect on other laws, pending legal proceedings, and unexpended appropriations.

908.Rules of Senate and House of Representatives on reorganization plans.

909.Terms of resolution.

910.Introduction and reference of resolution.

911.Discharge of committee considering resolution.

912.Procedure after report or discharge of committee; debate; vote on final passage.

[913.Omitted.]

Editorial Notes
Amendments1984—Pub. L. 98–614, § 3(e)(3), Nov. 8, 1984, 98 Stat. 3193, substituted “passage” for “disapproval” in item 912.
1977—Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 29, reenacted chapter heading and items 901 to 903, 905 to 909, and 911 without change, substituted “plan” for “plans” in item 904 and “Introduction and reference of resolution” for “Reference of resolution to committee” in item 910, inserted “; vote on final disapproval” in item 912, and omitted item 913 “Decisions without debate on motion to postpone or proceed”.

§ 901. Purpose(a) The Congress declares that it is the policy of the United States—(1) to promote the better execution of the laws, the more effective management of the executive branch and of its agencies and functions, and the expeditious administration of the public business;

(2) to reduce expenditures and promote economy to the fullest extent consistent with the efficient operation of the Government;

(3) to increase the efficiency of the operations of the Government to the fullest extent practicable;

(4) to group, coordinate, and consolidate agencies and functions of the Government, as nearly as may be, according to major purposes;

(5) to reduce the number of agencies by consolidating those having similar functions under a single head, and to abolish such agencies or functions thereof as may not be necessary for the efficient conduct of the Government; and

(6) to eliminate overlapping and duplication of effort.

(b) Congress declares that the public interest demands the carrying out of the purposes of subsection (a) of this section and that the purposes may be accomplished in great measure by proceeding under this chapter, and can be accomplished more speedily thereby than by the enactment of specific legislation.

(c) It is the intent of Congress that the President should provide appropriate means for broad citizen advice and participation in restructuring and reorganizing the executive branch.

(d) The President shall from time to time examine the organization of all agencies and shall determine what changes in such organization are necessary to carry out any policy set forth in subsection (a) of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 394; Pub. L. 92–179, § 1, Dec. 10, 1971, 85 Stat. 574; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 29.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z.June 20, 1949, ch. 226, § 2, 63 Stat. 203.

In subsection (a), the words “from time to time examine” are substituted for “examine and from time to time reexamine” since the initial examination has been executed. The words “of the Government” following “agencies” are omitted as unnecessary in view of the definition of “agency” in section 902. In subsection (a)(1), the words “of the Government” following “executive branch” are omitted as unnecessary and to conform to the style of this title.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Codification
Section 901(c) of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 60e–2(a) of Title 2, The Congress.

Amendments1977—Subsecs. (a) to (d). Pub. L. 95–17 reenacted subsecs. (a) and (b) without change, added subsec. (c), and redesignated former subsec. (c) as (d).
1971—Subsec. (a). Pub. L. 92–179, § 1(a), substituted “The Congress declares that it is the policy of the United States” for “The President shall from time to time examine the organization of all agencies and shall determine what changes therein are necessary to accomplish the following purposes” preceding par. (1).
Subsec. (c). Pub. L. 92–179, § 1(b), added subsec. (c) consisting of provisions formerly set out preceding par. (1) of subsec. (a).

Statutory Notes and Related Subsidiaries
Short Title of 1984 AmendmentPub. L. 98–614, § 1, Nov. 8, 1984, 98 Stat. 3192, provided: “That this Act [amending sections 903 to 906 and 908 to 912 of this title] may be cited as the ‘Reorganization Act Amendments of 1984’.”

Short Title of 1977 AmendmentPub. L. 95–17, § 1, Apr. 6, 1977, 91 Stat. 29, provided: “That this Act [amending this chapter] may be cited as the ‘Reorganization Act of 1977’.”

National Commission on Executive OrganizationPub. L. 100–527, § 17, Oct. 25, 1988, 102 Stat. 2645, directed President, within 30 days after Mar. 15, 1989, to make a determination as to whether the national interest would be served by establishment of a National Commission on Executive Organization to review structural organization of executive branch of Federal Government, and stated that if President failed to transmit to Congress notification of his intent to establish such Commission section would cease to be effective 30 days after Mar. 15, 1989. [President did not transmit such notification to Congress and thus section ceased to be effective 30 days after Mar. 15, 1989.]

Executive Documents

Ex. Ord. No. 6166. Reorganization of Executive Agencies Generally
Ex. Ord. No. 6166, June 10, 1933, provided:

§ 1. ProcurementThe function of determination of policies and methods of procurement, warehousing, and distribution of property, facilities, structures, improvements, machinery, equipment, stores, and supplies exercised by an agency is transferred to a Procurement Division in the Treasury Department, at the head of which shall be a Director of Procurement.
The Office of the Supervising Architect of the Treasury Department is transferred to the Procurement Division, except that the buildings of the Treasury Department shall be administered by the Treasury Department and the administration of post-office buildings is transferred to the Post Office Department. The General Supply Committee of the Treasury Department is abolished.
In respect of any kind of procurement, warehousing, or distribution for any agency the Procurement Division may, with the approval of the President, (a) undertake the performance of such procurement, warehousing, or distribution itself, or (b) permit such agency to perform such procurement, warehousing, or distribution, or (c) entrust such performance to some other agency, or (d) avail itself in part of any of these recourses, according as it may deem desirable in the interest of economy and efficiency. When the Procurement Division has prescribed the manner of procurement, warehousing, or distribution of any thing, no agency shall thereafter procure, warehouse, or distribute such thing in any manner other than so prescribed.
The execution of work now performed by the Corps of Engineers of the Army shall remain with said corps, subject to the responsibilities herein vested in the Procurement Division.
The Procurement Division shall also have control of all property, facilities, structures, machinery, equipment, stores, and supplies not necessary to the work of any agency; may have custody thereof or entrust custody to any other agency; and shall furnish the same to agencies as need therefor may arise.
The Fuel Yards of the Bureau of Mines of the Department of Commerce are transferred to the Procurement Office. (As amended by Ex. Ord. No. 6623 of Mar. 1, 1934.)

Amendment of Section by Ex. Ord. No. 6623
Ex. Ord. No. 6623, Mar. 1, 1934, revoked a final paragraph of section 1 of Ex. Ord. No. 6166, which provided for the abolition of the Federal Employment Stabilization Board and the transfer of its functions to the Federal Emergency Administration of Public Works. Said Ex. Ord. No. 6623 also provided in part as follows:
“It is further ordered that the said Federal Employment Stabilization Board be, and it is hereby, abolished.
“There is hereby established in the Department of Commerce an office to be known as the ‘Federal Employment Stabilization Office,’ and there are hereby transferred to such office the functions of the Federal Employment Stabilization Board, together with its Director and other personnel, and records, supplies, equipment, and property of every kind.
“The unexpended balances of appropriations and/or allotments of appropriations of the Federal Employment Stabilization Board are hereby transferred to the Federal Employment Stabilization Office, Department of Commerce.”

Effective Date
The effective date of Ex. Ord. No. 6166, § 1, as provided for in section 22, post, was extended to Dec. 31, 1933, by Ex. Ord. No. 6224, of July 27, 1933, and the effective date of the last paragraph, subsequently revoked by Ex. Ord. No. 6623, was deferred by Ex. Ord. No. 6624 of Mar. 1, 1934, until such revocation could become effective.
[Subsequent to the effective date of Ex. Ord. No. 6166, § 1, certain functions affected thereby were again transferred as follows: The Public Buildings Branch of the Procurement Division was transferred to Public Buildings Administration within the Federal Works Administration by 1939 Reorg. Plan No. 1, §§ 301, 303, 4 Fed. Reg. 2729; 53 Stat. 1426, 1427; the Federal Employment Stabilization Office, created by Ex. Ord. No. 6166, § 1, as amended by Ex. Ord. No. 6624, was abolished by 1939 Reorg. Plan No. 1, § 4, 4 Fed. Reg. 2727, 53 Stat. 1423, and its functions transferred to the Executive Office of the President.]

Supersedure of Pars. 1, 3, and 5
Section 602(b) of act June 30, 1949, ch. 288, title VI, 63 Stat. 401, eff. July 1, 1949, as renumbered from title V, section 502(b) of said act June 30, 1949 by act Sept. 5, 1950, ch. 849, §§ 6(a), (b), 7(e), 64 Stat. 583, provided that: “The provisions of the first, third, and fifth paragraphs of section 1 of Executive Order Numbered 6166 of June 10, 1933 [this Ex. Ord.], are hereby superseded, insofar as they relate to any function now administered by the Bureau of Federal Supply except functions with respect to standard contract forms.”

§ 2. National Parks, Buildings, and ReservationsAll functions of administration of public buildings, reservations, national parks, national monuments, and national cemeteries are consolidated in the National Park Service in the Department of the Interior, at the head of which shall be a Director of the National Park Service; except that where deemed desirable there may be excluded from this provision any public building or reservation which is chiefly employed as a facility in the work of a particular agency. This transfer and consolidation of functions shall include, among others, those of the former National Park Service of the Department of the Interior and the following National Cemeteries and Parks of the War Department which are located within the continental limits of the United States:

National Military Parks
Chickamauga and Chattanooga National Military Park, Georgia and Tennessee.
Fort Donelson National Military Park, Tennessee.
Fredericksburg and Spotsylvania County Battle Fields Memorial, Virginia.
Gettysburg National Military Park, Pennsylvania.
Guilford Courthouse National Military Park, North Carolina.
Kings Mountain National Military Park, South Carolina.
Moores Creek National Military Park, North Carolina.
Petersburg National Military Park, Virginia.
Shiloh National Military Park, Tennessee.
Stones River National Military Park, Tennessee.
Vicksburg National Military Park, Mississippi.

National Parks
Abraham Lincoln National Park, Kentucky.
Fort McHenry National Park, Maryland.

Battlefield Sites
Antietam Battlefield, Maryland.
Appomattox, Virginia.
Brices Cross Roads, Mississippi.
Chalmette Monument and Grounds, Louisiana.
Cowpens, South Carolina.
Fort Necessity, Wharton County, Pennsylvania.
Kenesaw Mountain, Georgia.
Monocacy, Maryland.
Tupelo, Mississippi.
White Plains, New York.

National Monuments
Big Hole Battlefield, Beaverhead County, Montana.
Cabrillo Monument, Fort Rosecrans, California.
Castle Pinckney, Charleston, South Carolina.
Father Millet Cross, Fort Niagara, New York.
Fort Marion, St. Augustine, Florida.
Fort Matanzas, Florida.
Fort Pulaski, Georgia.
Meriwether Lewis, Hardin County, Tennessee.
Mound City Group, Chillicothe, Ohio.
Statue of Liberty, Fort Wood, New York.

Miscellaneous Memorials
Camp Blount Tablets, Lincoln County, Tennessee.
Kill Devil Hill Monument, Kitty Hawk, North Carolina.
New Echota Marker, Georgia.
Lee Mansion, Arlington National Cemetery, Virginia.

National Cemeteries
Custer Battlefield, National Cemetery in the State of Montana.
Battleground, District of Columbia.
Antietam (Sharpsburg), Maryland.
Vicksburg, Mississippi.
Gettysburg, Pennsylvania.
Chattanooga, Tennessee.
Fort Donelson (Dover), Tennessee.
Shiloh (Pittsburg Landing), Tennessee.
Stones River (Murfreesboro), Tennessee.
Fredericksburg, Virginia.
Poplar Grove (Petersburg), Virginia.
Yorktown, Virginia.
National cemeteries located in insular possessions under the jurisdiction of the War Department shall be administered by the Bureau of Insular Affairs of the War Department.
The functions of the following agencies are transferred to the National Park Service of the Department of the Interior, and the agencies are abolished:
Arlington Memorial Bridge Commission
Public Buildings Commission
Public Buildings and Public Parks of the National Capital
National Memorial Commission
Rock Creek and Potomac Parkway Commission
Expenditures by the Federal Government for the purposes of the Commission of Fine Arts, the George Rogers Clark Sesquicentennial Commission, and the Rushmore National Commission shall be administered by the Department of the Interior. (As amended by Ex. Ord. No. 6228 of July 28, 1933; Ex. Ord. No. 6614 of Feb. 26, 1934; Ex. Ord. No. 8428 of June 3, 1940, 5 F.R. 2132; and act Mar. 2, 1934. ch. 39, § 1, 48 Stat. 389.)

Amendments
The enumeration of the National Cemeteries and Parks of the War Department which were transferred to the Department of the Interior was added by Ex. Ord. No. 6228, § 1, of July 28, 1933, and Ex. Ord. No. 8428 of June 3, 1940.
A provision of this section transferring the administration of national cemeteries located in foreign countries to the State Department was revoked by Ex. Ord. No. 6614 of Feb. 26, 1934.

Effective Date
See section 22 of this Ex. Ord. The transfer of national cemeteries located in the insular possessions to the Bureau of Insular Affairs, as provided in this section, was postponed until further order by Ex. Ord. No. 6228, § 3, of July 28, 1933.

§ 3. InvestigationsAll functions now exercised by the Bureau of Prohibition of the Department of Justice with respect to the granting of permits under the national prohibition laws are transferred to the Division of Internal Revenue in the Treasury Department.
All functions now exercised by the Bureau of Prohibition with respect to investigations and all the functions now performed by the Bureau of Investigation of the Department of Justice are transferred to and consolidated in a Division of Investigation in the Department of Justice, at the head of which shall be a Director of Investigation.
All other functions now performed by the Bureau of Prohibition are transferred to such divisions in the Department of Justice as in the judgment of the Attorney General may be desirable.

§ 4. Disbursement[Section, as amended by Ex. Ord. No. 6728, May 29, 1934; 1940 Reorg. Plan No. III, § 1(a)(1), eff. June 30, 1940, 5 F.R. 2107, 54 Stat. 1231; and 1940 Reorg. Plan No. IV, §§ 3, 4, eff. June 30, 1940, 5 F.R. 2421, 54 Stat. 1234, which provided that the function of disbursement of moneys of the United States exercised by any agency [except United States marshals; the Post Office Department; the Postmaster General; the Board of Trustees of the Postal Savings System; and those disbursement functions of the War Department, Navy Department (including the Marine Corps), and the Panama Canal, not pertaining to departmental salaries in the District of Columbia] were transferred to the [Fiscal Service of the] Treasury Department and, together with the Office of Disbursing Clerk of that department, was consolidated in a Division of Disbursement, at the head of which was a Chief Disbursing Officer, that the Division of Disbursement of the Treasury Department was authorized to establish local offices, or to delegate the exercise of its functions locally to officers or employees of other agencies, according as the interests of efficiency and economy might require, that the Division of Disbursement would disburse moneys only upon the certification of persons by law duly authorized to incur obligations upon behalf of the United States and that the function of accountability for improper certification would be transferred to such persons, and no disbursing officer would be held accountable therefor, was repealed and reenacted as section 3321 of Title 31, Money and Finance, by Pub. L. 97–258, Sept. 13, 1982, 96 Stat. 877, the first section of which enacted Title 31.]

Amendments
The bracketed provisions in the first sentence of section 4 of Ex. Ord. No. 6166 reflect the changes effected by 1940 Reorg. Plan No. IV, §§ 3, 4, eff. June 30, 1940, 5 F.R. 2421, 54 Stat. 1234, 1235, Ex. Ord. No. 6728, and 1940 Reorg. Plan No. III, § 1(a)(1), 5 F.R. 2107, 54 Stat. 1231, respectively.

Effective Date
The effective date of section 4 of Ex. Ord. No. 6166, originally fixed by section 22 of this Ex. Ord., was subsequently postponed as follows: to Dec. 31, 1933, by Ex. Ord. No. 6224 of July 27, 1933; to June 30, 1934 (insofar as not already effected prior to Dec. 31, 1933), by Ex. Ord. No. 6540 of Dec. 28, 1933; to Dec. 31, 1934 (insofar as not already effected prior to June 30, 1934), by Ex. Ord. No. 6727 of May 29, 1934; to June 30, 1935, by Ex. Ord. No. 6927 of Dec. 31, 1934; to Dec. 31, 1935 (insofar as not already effected prior to June 30, 1934), by Ex. Ord. No. 7077 of June 15, 1935; to June 30, 1936 (insofar as not already effected prior to Dec. 31, 1935), by Ex. Ord. No. 7261 of Dec. 31, 1935. Each of these orders contained a provision that the changes therein delayed might be made sooner effective by order of the Secretary of the Treasury approved by the President.

§ 5. Claims By or Against the United StatesThe functions of prosecuting in the courts of the United States claims and demands by, and offenses against, the Government of the United States and of defending claims and demands against the Government, and of supervising the work of United States attorneys, marshals, and clerks in connection therewith, now exercised by any agency or officer, are transferred to the Department of Justice.
As to any case referred to the Department of Justice for prosecution or defense in the courts, the function of decision whether and in what manner to prosecute, or to defend, or to compromise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Department of Justice.
For the exercise of such of his functions as are not transferred to the Department of Justice by the foregoing two paragraphs, the Solicitor of the Treasury is transferred from the Department of Justice to the Treasury Department.
Nothing in this section shall be construed to affect the function of any agency or officer with respect to cases at any stage prior to reference to the Department of Justice for prosecution or defense.

Effective Date
With regard to legal work performed by the Veterans’ Administration in connection with suits against the United States arising under section 19 of the World War Veterans Act, 1924, the effective date of this section was postponed to Sept. 10, 1933, by Ex. Ord. No. 6222 of July 27, 1933.
The effective date of the first paragraph of this section, insofar as it affected the functions of the General Counsel for the Bureau of Internal Revenue, was postponed until Oct. 10, 1933, by Ex. Ord. No. 6244 of Aug. 8, 1933.

§ 6. Insular CourtsThe United States Court for China, the District Court of the United States for the Panama Canal Zone, and the District Court of the Virgin Islands of the United States are transferred to the Department of Justice.

Effective Date
Ex. Ord. No. 6243, Aug. 5, 1933, provided that “the effective date of the transfer to the Department of Justice of the District Court of the United States for the Panama Canal Zone is hereby postponed to October 4, 1933.”

§ 7. SolicitorsThe Solicitor for the Department of Commerce is transferred from the Department of Justice to the Department of Commerce.
The Solicitor for the Department of Labor is transferred from the Department of Justice to the Department of Labor.

§ 8. Internal RevenueThe Bureaus of Internal Revenue and or Industrial Alcohol of the Treasury Department are consolidated in a Division of Internal Revenue, at the head of which shall be a Commissioner of Internal Revenue.

Effective Date
The effective date of section 8 of Ex. Ord. No. 6166, originally fixed by section 22 of the same order, post, was subsequently postponed as follows: to Dec. 31, 1933, by Ex. Ord. No. 6224 of July 27, 1933; to June 30, 1934, by Ex. Ord. No. 6540 of Dec. 28, 1933. Said orders, however, contained a provision whereby the changes thereby delayed might be sooner effected by order of the Secretary of the Treasury approved by the President.

§ 9. Assistant Secretary of CommerceThe Assistant Secretary of Commerce for Aeronautics shall be an Assistant Secretary of Commerce and shall perform such functions as the Secretary of Commerce may designate.

§ 10. Official RegisterThe function of preparation of the Official Register is transferred from the Bureau of the Census to the Civil Service Commission.

§ 11. Statistics of CitiesThe function of the Bureau of the Census of the Department of Commerce of compiling statistics of cities under 100,000 population is abolished for the period ending June 30, 1935.

§ 12. Shipping BoardThe functions of the United States Shipping Board including those over and in respect to the United States Shipping Board Merchant Fleet Corporation are transferred to the Department of Commerce, and the United States Shipping Board is abolished.

§ 13. National Screw Thread CommissionThe National Screw Thread Commission is abolished, and its records, property, facilities, equipment, and supplies are transferred to the Department of Commerce.

§ 14. Immigration and NaturalizationThe Bureaus of Immigration and of Naturalization of the Department of Labor are consolidated as an Immigration and Naturalization Service of the Department of Labor, at the head of which shall be a Commissioner of Immigration and Naturalization.

§ 15. Vocational EducationThe functions of the Federal Board for Vocational Education are transferred to the Department of the Interior, and the Board shall act in an advisory capacity without compensation.

§ 16. Apportionment of AppropriationsThe functions of making, waiving, and modifying apportionments of appropriations are transferred to the Director of the Bureau of the Budget.

§ 17. Coordinating ServiceThe Federal Coordinating Service is abolished.

Effective Date
The effective date of this section originally fixed by section 22 of this Ex. Ord., was subsequently deferred to Oct. 10, 1933, by Ex. Ord. No. 6239 of Aug. 2, 1933.

§ 18. Functions AbolishedSection 18 of Ex. Ord. No. 6166, which provided for the partial abolition of cooperative vocational education payments for agricultural experiment stations; cooperative agricultural extension work; and endowment and maintenance of colleges for the benefit of agriculture and the mechanical arts, was revoked by Ex. Ord. No. 6536 of Feb. 6, 1934.

§ 19. General ProvisionsEach agency, all the functions of which are transferred to or consolidated with another agency, is abolished.
The records pertaining to an abolished agency or a function disposed of, disposition of which is not elsewhere herein provided for, shall be transferred to the successor. If there be no successor agency, and such abolished agency be within a department, said records shall be disposed of as the head of such department may direct.
The property, facilities, equipment, and supplies employed in the work of an abolished agency or the exercise of a function disposed of, disposition of which is not elsewhere herein provided for, shall, to the extent required, be transferred to the successor agency. Other such property, facilities, equipment, and supplies shall be transferred to the Procurement Division.
All personnel employed in connection with the work of an abolished agency or function disposed of shall be separated from the service of the United States, except that the head of any successor agency, subject to my approval, may, within a period of four months after transfer or consolidation, reappoint any of such personnel required for the work of the successor agency without reexamination or loss of civil-service status.

Effective Date
The effective date of the last paragraph of this section, originally fixed by section 22, post, was deferred as to employees separated from service under sections 2 and 15, ante, until Sept. 30, 1933, by Ex. Ord. No. 6227 of July 27, 1933. As to employees separated under section 12, ante, a similar deferment to Sept. 30, 1933, was made by Ex. Ord. No. 6245 of Aug. 9, 1933.

§ 20. AppropriationsSuch portions of the unexpended balances of appropriations for any abolished agency or function disposed of shall be transferred to the successor agency as the Director of the Budget shall deem necessary.
Unexpended balances of appropriations for an abolished agency or function disposed of, not so transferred by the Director of the Budget, shall, in accordance with law, be impounded and returned to the Treasury.

§ 21. DefinitionsAs used in this order—
“Agency” means any commission, independent establishment, board, bureau, division, service, or office in the executive branch of the Government.
“Abolished agency” means any agency which is abolished, transferred, or consolidated.
“Successor agency” means any agency to which is transferred some other agency or function, or which results from the consolidation of other agencies or functions.
“Function disposed of” means any function eliminated or transferred.

§ 22. Effective DateIn accordance with law, this order shall become effective 61 days from its date: Provided, That in case it shall appear to the President that the interests of economy require that any transfer, consolidation, or elimination be delayed beyond the date this order becomes effective, he may, in his discretion, fix a later date therefor, and he may for like cause further defer such date from time to time. (Promulgated June 10, 1933.)
[Postponements of effective date of certain transfers, etc., see notes under the various sections of this Executive Order effecting those transfers, etc.]
Executive Order No. 7261, promulgated December 31, 1935, provided that “except as hereinafter provided, the transfers, consolidations, and eliminations contemplated by section 4 of Executive Order No. 6166 of June 10, 1933, as amended, which are not effected prior to December 31, 1935, pursuant to Executive Order No. 6224 of July 27, 1933, Executive Order No. 6540 of December 28, 1933, Executive Order No. 6727 of May 29, 1934, Executive Order No. 6927 of December 21, 1934, and Executive Order No. 7077 of June 15, 1935, together with the operation of all other provisions of Executive Order No. 6166 of June 10, 1933, as amended, in so far as they relate to said section 4, be further delayed until June 30, 1936: Provided, that any transfer, consolidation, or elimination, in whole or in part, under said section 4, including any other provisions of the said order of June 10, 1933, in so far as they relate to section 4 thereof, may be made operative and effective between December 31, 1935, and June 30, 1936, by order of the Secretary of the Treasury, approved by the President.”
Executive Order No. 7980, promulgated September 29, 1938, provided: “That the transfers, consolidations, and eliminations contemplated by section 4 of Executive Order No. 6166 of June 10, 1933, as amended, together with the operation of all other provisions of Executive Order No. 6166 of June 10, 1933, as amended, so far as they relate to the said section 4, be further delayed until December 31, 1938, with respect to the function of disbursement now exercised by United States Marshals under the Department of Justice.”
Functions relating to disbursement by United States marshals which would otherwise have become functions of Treasury Department on July 1, 1940, by virtue of Ex. Ord. No. 6166, as amended, were transferred to and vested in Department of Justice to be exercised by United States marshals under supervision of Attorney General in accordance with existing statutes pertaining to such functions, by Reorg. Plan No. IV of 1940, § 3, eff. June 30, 1940. See, also, sections 13–15 of said plan for provisions relating to transfer of functions of department heads, records, property, personnel, and funds.
Functions relating to disbursement of postal revenues and all other funds under jurisdiction of Post Office Department, Postmaster General, and Board of Trustees of Postal Savings System which would otherwise have become functions of Treasury Department on July 1, 1940, by virtue of Ex. Ord. No. 6166, as amended, set out in note under this section, were transferred to and vested in (a) said Board of Trustees as to postal savings disbursements, and (b) Post Office Department as to all other disbursements involved, such functions to be exercised by postmasters and other authorized disbursing agents of Post Office Department and of Postal Savings System in accordance with existing statutes pertaining to such functions, by Reorg. Plan No. IV of 1940, § 4, eff. June 30, 1940. See, also, sections 13–15 of said plan for provisions relating to transfer of functions of department heads, records, property, personnel, and funds.
Public Buildings Branch of Procurement Division and its functions and personnel were transferred to Public Buildings Administration, and functions of Secretary of Agriculture and Director of Procurement Division relating to administration thereof and to selection of sites for public buildings were transferred to Federal Works Administrator by Reorg. Plan No. I of 1939, §§ 301, 303, effective July 1, 1939. See also sections 307–310 of said plan for provisions relating to transfer of records, property, funds, and personnel.

Executive Order No. 11007
Ex. Ord. No. 11007, Feb. 27, 1962, 27 F.R. 1875, which related to regulations for formation and use of advisory committees, was superseded by Ex. Ord. No. 11671, June 5, 1972, 37 F.R. 11307.

Executive Order No. 11671
Ex. Ord. No. 11671, June 5, 1972, 37 F.R. 11307, which related to committee management, was superseded by Ex. Ord. No. 11686, Oct. 7, 1972, 37 F.R. 21421, set out in the Appendix to this title.

§ 902. Definitions
For the purpose of this chapter—(1) “agency” means—(A) an Executive agency or part thereof; and

(B) an office or officer in the executive branch;

but does not include the Government Accountability Office or the Comptroller General of the United States;

(2) “reorganization” means a transfer, consolidation, coordination, authorization, or abolition, referred to in section 903 of this title; and

(3) “officer” is not limited by section 2104 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 394; Pub. L. 90–83, § 1(98), Sept. 11, 1967, 81 Stat. 220; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 30; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

(1)5 U.S.C. 133z–5.June 20, 1949, ch. 226, § 7, 63 Stat. 205.
(2)5 U.S.C. 133z–6.June 20, 1949, ch. 226, § 8, 63 Stat. 206.

In paragraph (1)(A), the words “an Executive agency or part thereof” are coextensive with and substituted for “any executive department, commission, council, independent establishment, Government corporation, board, bureau, division, service, . . . authority, administration, or other establishment, in the executive branch of the Government” and to conform to the definition in section 105.
In paragraph (1)(B), the words “an office or officer in the civil service or uniformed services in or under an Executive agency” are substituted for “office, officer, . . . in the executive branch of the Government” to conform to the definitions in sections 105, 2101, and 2104.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ActThis section amends section 902 of title 5, United States Code, so as to preserve the application of the source statute for section 902 (sec. 7 of the Reorganization Act of 1949). In the codification of title 5 by Public Law 89–554, that application was inadvertently restricted due to the operation of section 2104 of title 5, providing a title-wide definition of “officer.” Briefly, that section defines “officer” as a civil appointive officer of the Federal Government. In the Reorganization Act of 1949, the word “officer” was not defined, and has been construed to include not only civil appointive officers, but uniformed officers, the President, and officers of the government of the District of Columbia. Thus, this section amends section 902 of title 5 by inserting a paragraph providing that the title-wide definition of officer is inapplicable to chapter 9 of title 5. Also, paragraph (1)(B) of section 902 is amended so that the wording thereof is identical to that formerly appearing in section 7 of the Reorganization Act of 1949.

Editorial Notes
Codification
Section 902(a) of former Title 5, Executive Departments and Government Officers and Employees, was transferred to section 60e–2(b) of Title 2, The Congress.

Amendments2004—Par. (1). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in concluding provisions.
1977—Par. (1)(C). Pub. L. 95–17 struck out subpar. (C) which defined “agency” as any and all parts of the government of the District of Columbia other than the courts thereof.

Statutory Notes and Related Subsidiaries
Effective Date of 1967 AmendmentAmendment by Pub. L. 90–83 effective Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

§ 903. Reorganization plans(a) Whenever the President, after investigation, finds that changes in the organization of agencies are necessary to carry out any policy set forth in section 901(a) of this title, he shall prepare a reorganization plan specifying the reorganizations he finds are necessary. Any plan may provide for—(1) the transfer of the whole or a part of an agency, or of the whole or a part of the functions thereof, to the jurisdiction and control of another agency;

(2) the abolition of all or a part of the functions of an agency, except that no enforcement function or statutory program shall be abolished by the plan;

(3) the consolidation or coordination of the whole or a part of an agency, or of the whole or a part of the functions thereof, with the whole or a part of another agency or the functions thereof;

(4) the consolidation or coordination of part of an agency or the functions thereof with another part of the same agency or the functions thereof;

(5) the authorization of an officer to delegate any of his functions; or

(6) the abolition of the whole or a part of an agency which agency or part does not have, or on the taking effect of the reorganization plan will not have, any functions.

The President shall transmit the plan (bearing an identification number) to the Congress together with a declaration that, with respect to each reorganization included in the plan, he has found that the reorganization is necessary to carry out any policy set forth in section 901(a) of this title.

(b) The President shall have a reorganization plan delivered to both Houses on the same day and to each House while it is in session, except that no more than three plans may be pending before the Congress at one time. In his message transmitting a reorganization plan, the President shall specify with respect to each abolition of a function included in the plan the statutory authority for the exercise of the function. The message shall also estimate any reduction or increase in expenditures (itemized so far as practicable), and describe any improvements in management, delivery of Federal services, execution of the laws, and increases in efficiency of Government operations, which it is expected will be realized as a result of the reorganizations included in the plan. In addition, the President’s message shall include an implementation section which shall (1) describe in detail (A) the actions necessary or planned to complete the reorganization, (B) the anticipated nature and substance of any orders, directives, and other administrative and operational actions which are expected to be required for completing or implementing the reorganization, and (C) any preliminary actions which have been taken in the implementation process, and (2) contain a projected timetable for completion of the implementation process. The President shall also submit such further background or other information as the Congress may require for its consideration of the plan.

(c) Any time during the period of 60 calendar days of continuous session of Congress after the date on which the plan is transmitted to it, but before any resolution described in section 909 has been ordered reported in either House, the President may make amendments or modifications to the plan, consistent with sections 903–905 of this title, which modifications or revisions shall thereafter be treated as a part of the reorganization plan originally transmitted and shall not affect in any way the time limits otherwise provided for in this chapter. The President may withdraw the plan any time prior to the conclusion of 90 calendar days of continuous session of Congress following the date on which the plan is submitted to Congress.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 394; Pub. L. 90–83, § 1(99), Sept. 11, 1967, 81 Stat. 220; Pub. L. 92–179, § 2, Dec. 10, 1971, 85 Stat. 574; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 30; Pub. L. 98–614, §§ 3(b)(1), (2), 4, Nov. 8, 1984, 98 Stat. 3192, 3193.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–1.June 20, 1949, ch. 226, § 3, 63 Stat. 203.

In subsection (a)(5), the words “officer in the civil service or uniformed services” are substituted for “officer” to conform to the definitions in sections 2101 and 2104.
In subsection (b), the words “The President shall have a reorganization plan delivered” as substituted for “The delivery . . . shall be”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ActSection 1(99) amends section 903(a)(5) of title 5, United States Code, to conform to the wording formerly appearing in the source statute (sec. 3(5) of the Reorganization Act of 1949). In this regard, the explanation appearing in section 1(98) of this bill is equally applicable to this section.

Editorial Notes
Amendments1984—Subsec. (b). Pub. L. 98–614, § 4, inserted “In addition, the President’s message shall include an implementation section which shall (1) describe in detail (A) the actions necessary or planned to complete the reorganization, (B) the anticipated nature and substance of any orders, directives, and other administrative and operational actions which are expected to be required for completing or implementing the reorganization, and (C) any preliminary actions which have been taken in the implementation process, and (2) contain a projected timetable for completion of the implementation process. The President shall also submit such further background or other information as the Congress may require for its consideration of the plan.”
Subsec. (c). Pub. L. 98–614, § 3(b)(1), (2), substituted “60 calendar days” for “thirty calendar days”, and “90 calendar days” for “sixty calendar days”.
1977—Subsec. (a)(2). Pub. L. 95–17 inserted provision that no enforcement function or statutory program shall be abolished by the plan.
Subsec. (b). Pub. L. 95–17 substituted provisions limiting to three the number of plans that may be pending before Congress at any one time for provisions limiting to one the number of plans that may be transmitted to Congress within any period of thirty consecutive days and provisions requiring that the President estimate any increase in expenditures and describe any improvements in management, delivery of Federal services, execution of laws, and increases in efficiency of Government operations expected as a result of the reorganizations included in the plan.
Subsec. (c). Pub. L. 95–17 added subsec. (c).
1971—Subsec. (a). Pub. L. 92–179, § 2(a), restructured provisions covering requirements of findings of fact and certification by placing in a position preceding par. (1) provisions formerly set out following par. (6).
Subsec. (b). Pub. L. 92–179, § 2(b), inserted provisions limiting to one plan within any period of thirty consecutive days the allowable number of plans submitted.

Statutory Notes and Related Subsidiaries
Effective Date of 1967 AmendmentAmendment by Pub. L. 90–83 effective Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

§ 904. Additional contents of reorganization plan
A reorganization plan transmitted by the President under section 903 of this title—(1) may, subject to section 905, change, in such cases as the President considers necessary, the name of an agency affected by a reorganization and the title of its head, and shall designate the name of an agency resulting from a reorganization and the title of its head;

(2) may provide for the appointment and pay of the head and one or more officers of any agency (including an agency resulting from a consolidation or other type of reorganization) if the President finds, and in his message transmitting the plan declares, that by reason of a reorganization made by the plan the provisions are necessary;

(3) shall provide for the transfer or other disposition of the records, property, and personnel affected by a reorganization;

(4) shall provide for the transfer of such unexpended balances of appropriations, and of other funds, available for use in connection with a function or agency affected by a reorganization, as the President considers necessary by reason of the reorganization for use in connection with the functions affected by the reorganization, or for the use of the agency which shall have the functions after the reorganization plan is effective; and

(5) shall provide for terminating the affairs of an agency abolished.

A reorganization plan transmitted by the President containing provisions authorized by paragraph (2) of this section may provide that the head of an agency be an individual or a commission or board with more than one member. In the case of an appointment of the head of such an agency, the term of office may not be fixed at more than four years, the pay may not be at a rate in excess of that found by the President to be applicable to comparable officers in the executive branch, and if the appointment is not to a position in the competitive service, it shall be by the President, by and with the advice and consent of the Senate. Any reorganization plan transmitted by the President containing provisions required by paragraph (4) of this section shall provide for the transfer of unexpended balances only if such balances are used for the purposes for which the appropriation was originally made.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 395; Pub. L. 92–179, § 3, Dec. 10, 1971, 85 Stat. 575; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 31; Pub. L. 98–614, § 5(b), Nov. 8, 1984, 98 Stat. 3194.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–2.June 20, 1949, ch. 226, § 4, 63 Stat. 204.

In paragraph (1), the words “may change” are substituted for “shall change” in view of the discretionary grant of authority reflected by the words “in such cases as the President considers necessary”.
In paragraph (2), the words “competitive service” are substituted for “classified civil service” to conform to the definition in section 2102.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Par. (1). Pub. L. 98–614 inserted “, subject to section 905,”.
1977—Pub. L. 95–17 struck out in provisions following par. (5) exception that, in the case of an officer of the government of the District of Columbia, the appointment of the head of an agency may be by the Commissioner or other body of that government designated in the plan.
1971—Pub. L. 92–179 revised the form of the provisions covering the elements which a reorganization plan contains by moving provisions formerly set out in par. (2) to a position following par. (5).

§ 905. Limitation on powers(a) A reorganization plan may not provide for, and a reorganization under this chapter may not have the effect of—(1) creating a new executive department or renaming an existing executive department, abolishing or transferring an executive department or independent regulatory agency, or all the functions thereof, or consolidating two or more executive departments or two or more independent regulatory agencies, or all the functions thereof;

(2) continuing an agency beyond the period authorized by law for its existence or beyond the time when it would have terminated if the reorganization had not been made;

(3) continuing a function beyond the period authorized by law for its exercise or beyond the time when it would have terminated if the reorganization had not been made;

(4) authorizing an agency to exercise a function which is not expressly authorized by law at the time the plan is transmitted to Congress;

(5) creating a new agency which is not a component or part of an existing executive department or independent agency;

(6) increasing the term of an office beyond that provided by law for the office; or

(7) dealing with more than one logically consistent subject matter.

(b) A provision contained in a reorganization plan may take effect only if the plan is transmitted to Congress (in accordance with section 903(b)) on or before December 31, 1984.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 396; Pub. L. 91–5, Mar. 27, 1969, 83 Stat. 6; Pub. L. 92–179, § 4, Dec. 10, 1971, 85 Stat. 576; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 31; Pub. L. 96–230, Apr. 8, 1980, 94 Stat. 329; Pub. L. 98–614, §§ 2(a), 5(a), Nov. 8, 1984, 98 Stat. 3192, 3193.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 133z–3(a).June 20, 1949, ch. 226, § 5(a), 63 Stat. 205.July 2, 1964, Pub. L. 88–351, § 2, 78 Stat. 240.
(b)5 U.S.C. 133z–3(b).June 20, 1949, ch. 226, § 5(b), 63 Stat. 205.
  Feb. 11, 1953, ch. 3, 67 Stat. 4.
  Mar. 25, 1955, ch. 16, 69 Stat. 14.
  Sept. 4, 1957, Pub. L. 85–286, § 1, 71 Stat. 611.
  Apr. 7, 1961, Pub. L. 87–18, 75 Stat. 41.
  July 2, 1964, Pub. L. 88–351, § 1, 78 Stat. 240.
  June 18, 1965, Pub. L. 89–43, 79 Stat. 135.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Subsec. (a)(1). Pub. L. 98–614, § 5(a)(1), inserted “or renaming an existing executive department”.
Subsec. (a)(5) to (7). Pub. L. 98–614, § 5(a)(2), added par. (5) and redesignated former pars. (5) and (6) as (6) and (7), respectively.
Subsec. (b). Pub. L. 98–614, § 2(a), substituted “(in accordance with section 903(b)) on or before December 31, 1984” for “within four years of the date of enactment of the Reorganization Act of 1977”.
1980—Subsec. (b). Pub. L. 96–230 substituted “four years” for “three years”.
1977—Subsec. (a)(1). Pub. L. 95–17 substituted “an executive department or independent regulatory agency,” for “an Executive department” and “or more executive departments or two or more independent regulatory agencies,” for “or more Executive departments”.
Subsec. (a)(6), (7). Pub. L. 95–17 redesignated par. (7) as (6). Former par. (6), which related to limitation on reorganization plans that have effect of transferring to or consolidating with another agency the government of the District of Columbia or all the functions thereof which are subject to this chapter, or abolishing that government or all those functions, was struck out.
Subsec. (b). Pub. L. 95–17 substituted “within three years of the date of enactment of the Reorganization Act of 1977” for “before April 1, 1973”.
1971—Subsec. (a)(7). Pub. L. 92–179, § 4(a), added par. (7).
Subsec. (b). Pub. L. 92–179, § 4(b), substituted “April 1, 1973” for “April 1, 1971”.
1969—Subsec. (b). Pub. L. 91–5 substituted “April 1, 1971” for “December 31, 1968”.

Statutory Notes and Related Subsidiaries
Plan for Transportation Department ReorganizationPub. L. 104–50, title III, § 335, Nov. 15, 1995, 109 Stat. 458, provided in part that, notwithstanding section 905(b) of this section, the President could prepare and transmit to Congress not later than the date for transmittal of the Budget Request for Fiscal Year 1997, a reorganization plan, pursuant to chapter 9 of this title, for the Department of Transportation surface transportation activities and the relationship of the Saint Lawrence Seaway Development Corporation to the Department.

§ 906. Effective date and publication of reorganization plans(a) Except as provided under subsection (c) of this section, a reorganization plan shall be effective upon approval by the President of a resolution (as defined in section 909) with respect to such plan, if such resolution is passed by the House of Representatives and the Senate, within the first period of 90 calendar days of continuous session of Congress after the date on which the plan is transmitted to Congress. Failure of either House to act upon such resolution by the end of such period shall be the same as disapproval of the resolution.

(b) For the purpose of this chapter—(1) continuity of session is broken only by an adjournment of Congress sine die; and

(2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of any period of time in which Congress is in continuous session.

(c) Under provisions contained in a reorganization plan, any provision thereof may be effective at a time later than the date on which the plan otherwise is effective.

(d) A reorganization plan which is effective shall be printed (1) in the Statutes at Large in the same volume as the public laws and (2) in the Federal Register.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 396; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 32; Pub. L. 98–614, § 3(a), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)–(c)5 U.S.C. 133z–4.June 20, 1949, ch. 226, § 6, 63 Stat. 205.Sept. 4, 1957, Pub. L. 85–286, § 2, 71 Stat. 611.
(d)5 U.S.C. 133z–9.June 20, 1949, ch. 226, § 11, 63 Stat. 206.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Subsec. (a). Pub. L. 98–614, § 3(a)(1), struck out “otherwise” before “provided under subsection (c)”, substituted “shall be” for “is” before “effective”, and substituted “upon approval by the President of a resolution (as defined in section 909) with respect to such plan, if such resolution is passed by the House of Representatives and the Senate, within the first period of 90 calendar days of continuous session of Congress after the date on which the plan is transmitted to Congress. Failure of either House to act upon such resolution by the end of such period shall be the same as disapproval of the resolution” for “at the end of the first period of sixty calendar days of continuous session of Congress after the date on which the plan is transmitted to it unless, between the date of transmittal and the end of the sixty-day period, either House passes a resolution stating in substance that the House does not favor the reorganization plan.”
Subsec. (c). Pub. L. 98–614, § 3(a)(2), struck out before period at end “or, if both Houses of Congress have defeated a resolution of disapproval, may be effective at a time earlier than the expiration of the sixty-day period required by subsection (a)”.
1977—Subsec. (a). Pub. L. 95–17 substituted “sixty” for “60” in two places.
Subsec. (b). Pub. L. 95–17 substituted in provisions preceding par. (1) “this chapter” for “subsection (a) of this section” and in par. (2) “any period of time in which Congress is in continuous session” for “the 60-day period”.
Subsec. (c). Pub. L. 95–17 inserted provision that if both Houses of Congress have defeated a resolution of disapproval, the provision of a reorganization plan may be effective at a time earlier than the expiration of the sixty-day period required by subsec. (a).
Subsec. (d). Pub. L. 95–17 reenacted subsec. (d) without change.

Statutory Notes and Related Subsidiaries
Ratification and Affirmation of Prior Reorganization Plans as Law; Actions Taken Pursuant to Such PlansPub. L. 98–532, Oct. 19, 1984, 98 Stat. 2705, provided that:
“Section 1. The Congress hereby ratifies and affirms as law each reorganization plan that has, prior to the date of enactment of this Act [Oct. 19, 1984], been implemented pursuant to the provisions of chapter 9 of title 5, United States Code, or any predecessor Federal reorganization statute.

“Sec. 2. Any actions taken prior to the date of enactment of this Act [Oct. 19, 1984] pursuant to a reorganization plan that is ratified and affirmed by section 1 shall be considered to have been taken pursuant to a reorganization expressly approved by Act of Congress.”

§ 907. Effect on other laws, pending legal proceedings, and unexpended appropriations(a) A statute enacted, and a regulation or other action made, prescribed, issued, granted, or performed in respect of or by an agency or function affected by a reorganization under this chapter, before the effective date of the reorganization, has, except to the extent rescinded, modified, superseded, or made inapplicable by or under authority of law or by the abolition of a function, the same effect as if the reorganization had not been made. However, if the statute, regulation, or other action has vested the functions in the agency from which it is removed under the reorganization plan, the function, insofar as it is to be exercised after the plan becomes effective, shall be deemed as vested in the agency under which the function is placed by the plan.

(b) For the purpose of subsection (a) of this section, “regulation or other action” means a regulation, rule, order, policy, determination, directive, authorization, permit, privilege, requirement, designation, or other action.

(c) A suit, action, or other proceeding lawfully commenced by or against the head of an agency or other officer of the United States, in his official capacity or in relation to the discharge of his official duties, does not abate by reason of the taking effect of a reorganization plan under this chapter. On motion or supplemental petition filed at any time within twelve months after the reorganization plan takes effect, showing a necessity for a survival of the suit, action, or other proceeding to obtain a settlement of the questions involved, the court may allow the suit, action, or other proceeding to be maintained by or against the successor of the head or officer under the reorganization effected by the plan or, if there is no successor, against such agency or officer as the President designates.

(d) The appropriations or portions of appropriations unexpended by reason of the operation of the chapter may not be used for any purpose, but shall revert to the Treasury.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 396; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 32.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)–(c)5 U.S.C. 133z–7.June 20, 1949, ch. 226, § 9, 63 Stat. 206.
(d)5 U.S.C. 133z–8.June 20, 1949, ch. 226, § 10, 63 Stat. 206.

In subsections (a) and (c), the words “the provisions of” in the phrase “under this chapter” are omitted as unnecessary.
In subsection (c), the words “the suit, action, or other proceeding” are substituted for “the same”.
In subsection (d), the words “shall revert” are substituted for “shall be . . . returned”, and the words “impounded and” are omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1977—Subsecs. (a), (b). Pub. L. 95–17 reenacted subsecs. (a) and (b) without change.
Subsec. (c). Pub. L. 95–17 substituted “twelve months” for “12 months”.
Subsec. (d). Pub. L. 95–17 reenacted subsec. (d) without change.

§ 908. Rules of Senate and House of Representatives on reorganization plans
Sections 909 through 912 of this title are enacted by Congress—(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of resolutions with respect to any reorganization plans transmitted to Congress (in accordance with section 903(b) of this chapter 11 So in original. Probably should be “title”.) on or before December 31, 1984; and they supersede other rules only to the extent that they are inconsistent therewith; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 33; Pub. L. 98–614, § 2(b), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–10.June 20, 1949, ch. 226, § 201, 63 Stat. 206.

The words “Sections 909–913 of this title” are substituted for “The following sections of this title” to reflect the codification of sections 202–206 of Title II of the Act of June 20, 1949.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Par. (1). Pub. L. 98–614 substituted “with respect to any reorganization plans transmitted to Congress (in accordance with section 903(b) of this chapter) on or before December 31, 1984” for “described in section 909 of this title”.
1977—Pub. L. 95–17 substituted “Sections 909 through 912 of this title” for “Sections 909–913 of this title” in provisions preceding par. (1).

§ 909. Terms of resolution
For the purpose of sections 908 through 912 of this title, “resolution” means only a joint resolution of the Congress, the matter after the resolving clause of which is as follows: “That the Congress approves the reorganization plan numbered      transmitted to the Congress by the President on   , 19  .”, and includes such modifications and revisions as are submitted by the President under section 903(c) of this chapter. The blank spaces therein are to be filled appropriately. The term does not include a resolution which specifies more than one reorganization plan.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 33; Pub. L. 98–614, § 3(c), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–11.June 20, 1949, ch. 226, § 202, 63 Stat. 207.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextSection 903(c) of this chapter, referred to in text, means section 903(c) of this title.

Amendments1984—Pub. L. 98–614 substituted “a joint resolution of the Congress” for “a resolution of either House of Congress”, and “the Congress approves” for “the     does not favor”.
1977—Pub. L. 95–17 substituted “sections 908 through 912 of this title” for “sections 908–913 of this title” and provision that the blank spaces are to be appropriately filled for provision that the first blank space is to be filled with the name of the resolving House and the other blank spaces are to be appropriately filled and inserted provision that “resolution” includes such modifications and revisions as are submitted by the President under section 903(c) of this chapter.

§ 910. Introduction and reference of resolution(a) No later than the first day of session following the day on which a reorganization plan is transmitted to the House of Representatives and the Senate under section 903, a resolution, as defined in section 909, shall be introduced (by request) in the House by the chairman of the Government Operations Committee of the House, or by a Member or Members of the House designated by such chairman; and shall be introduced (by request) in the Senate by the chairman of the Governmental Affairs Committee of the Senate, or by a Member or Members of the Senate designated by such chairman.

(b) A resolution with respect to a reorganization plan shall be referred to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House (and all resolutions with respect to the same plan shall be referred to the same committee) by the President of the Senate or the Speaker of the House of Representatives, as the case may be. The committee shall make its recommendations to the House of Representatives or the Senate, respectively, within 75 calendar days of continuous session of Congress following the date of such resolution’s introduction.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 33; Pub. L. 98–614, § 3(b)(3), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–12.June 20, 1949, ch. 226, § 203, 63 Stat. 207.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Subsec. (b). Pub. L. 98–614 substituted “75 calendar days” for “45 calendar days”.
1977—Pub. L. 95–17 substituted “Introduction and reference of resolution” for “Reference of resolution to committee” in section catchline, designated existing provisions as subsec. (b), substituted “the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House” for “a committee” and inserted requirement that the Committee shall make its recommendation to the House or Senate within 45 calendar days of continuous session of Congress following the date of a resolution’s introduction, and added subsec. (a).

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

§ 911. Discharge of committee considering resolution
If the committee to which is referred a resolution introduced pursuant to subsection (a) of section 910 (or, in the absence of such a resolution, the first resolution introduced with respect to the same reorganization plan) has not reported such resolution or identical resolution at the end of 75 calendar days of continuous session of Congress after its introduction, such committee shall be deemed to be discharged from further consideration of such resolution and such resolution shall be placed on the appropriate calendar of the House involved.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 397; Pub. L. 92–179, § 5, Dec. 10, 1971, 85 Stat. 576; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 34; Pub. L. 98–614, § 3(b)(4), Nov. 8, 1984, 98 Stat. 3192.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–13.June 20, 1949, ch. 226, § 204, 63 Stat. 207.

In subsection (a), the words “at the end of 10 calendar days . . . it is” are substituted for “before the expiration of ten calendar days . . . it shall then (but not before) be”.
In subsection (b), the words “A motion to discharge” are substituted for “Such motion”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Pub. L. 98–614 substituted “75 calendar days” for “45 calendar days”.
1977—Pub. L. 95–17 substituted provisions deeming the committee discharged from further consideration of a resolution where that committee has not reported the resolution within 45 days of continuous session of Congress after the resolution’s introduction for provisions permitting a motion to discharge a committee where the committee considering a resolution has not reported the resolution within 20 calendar days after the resolution’s introduction, provisions permitting a motion to discharge to be made only by an individual favoring the resolution and limiting debate to 1 hour, and provisions prohibiting a renewal of a motion to discharge where the original motion was agreed to or disagreed to or the making of another motion with respect to a resolution from the same reorganization plan.
1971—Subsec. (a). Pub. L. 92–179 substituted “20 calendar days” for “10 calendar days”.

§ 912. Procedure after report or discharge of committee; debate; vote on final passage(a) When the committee has reported, or has been deemed to be discharged (under section 911) from further consideration of, a resolution with respect to a reorganization plan, it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) for any Member of the respective House to move to proceed to the consideration of the resolution. The motion is highly privileged and is not debatable. The motion shall not be subject to amendment, or to a motion to postpone, or a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the resolution is agreed to, the resolution shall remain the unfinished business of the respective House until disposed of.

(b) Debate on the resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than ten hours, which shall be divided equally between individuals favoring and individuals opposing the resolution. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the resolution is not in order. A motion to reconsider the vote by which the resolution is passed or rejected shall not be in order.

(c) Immediately following the conclusion of the debate on the resolution with respect to a reorganization plan, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the appropriate House, the vote on final passage of the resolution shall occur.

(d) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a resolution with respect to a reorganization plan shall be decided without debate.

(e) If, prior to the passage by one House of a resolution of that House, that House receives a resolution with respect to the same reorganization plan from the other House, then—(1) the procedure in that House shall be the same as if no resolution had been received from the other House; but

(2) the vote on final passage shall be on the resolution of the other House.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 398; Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 34; Pub. L. 98–614, § 3(d), (e)(1), (2), Nov. 8, 1984, 98 Stat. 3193.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 133z–14.June 20, 1949, ch. 226, § 205, 63 Stat. 207.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1984—Pub. L. 98–614, § 3(e)(2), substituted “passage” for “disapproval” in section catchline.
Subsec. (b). Pub. L. 98–614, § 3(d)(1), substituted “passed or rejected” for “agreed to or disagreed to”.
Subsec. (c). Pub. L. 98–614, § 3(d)(2), substituted “final passage” for “final approval”.
Subsec. (e). Pub. L. 98–614, § 3(e)(1), added subsec. (e).
1977—Pub. L. 95–17 inserted “; vote on final disapproval” after “debate” in section catchline.
Subsec. (a). Pub. L. 95–17 inserted provisions that a motion to discharge a committee is not subject to a motion to postpone or to a motion to proceed to the consideration of other business and that if a motion to proceed to the consideration of the resolution is agreed to, the resolution shall remain the unfinished business of the respective House until disposed of.
Subsec. (b). Pub. L. 95–17 inserted provisions that a motion to postpone or a motion to proceed to the consideration of other business is not in order.
Subsec. (c). Pub. L. 95–17 added subsec. (c).
Subsec. (d). Pub. L. 95–17 added subsec. (d) which provisions were formerly set out in section 913(b) of this title.

[§ 913. Omitted]
Editorial Notes
Codification
Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 398, providing for decision without debate with respect to motions to postpone, motions to proceed to the consideration of other business, and appeals from decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, was omitted in the general amendment of this chapter by Pub. L. 95–17, § 2, Apr. 6, 1977, 91 Stat. 29. See section 912 of this title.

PART II—CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

Chap.

Sec.

11.Office of Personnel Management1101

12.Merit Systems Protection Board, Office of Special Counsel, and Employee Right of Action1201

13.Special Authority1301

14.Agency Chief Human Capital Officers1401

15.Political Activity of Certain State and Local Employees1501

Editorial Notes
Amendments2002—Pub. L. 107–296, title XIII, § 1302(b), Nov. 25, 2002, 116 Stat. 2288, added item for chapter 14.
1992—Pub. L. 102–378, § 2(1), Oct. 2, 1992, 106 Stat. 1346, substituted “Employee” for “Individual” in item for chapter 12.
1989—Pub. L. 101–12, § 3(b)(1), Apr. 10, 1989, 103 Stat. 31, substituted “, Office of Special Counsel, and Individual Right of Action” for “and Special Counsel” in item for chapter 12.
1978—Pub. L. 95–454, title II, § 201(c)(1), Oct. 13, 1978, 92 Stat. 1121, substituted “CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES” for “THE UNITED STATES CIVIL SERVICE COMMISSION” in heading for Part II.
Pub. L. 95–454, title II, § 201(c)(2), Oct. 13, 1978, 92 Stat. 1121, substituted “Office of Personnel Management” for “Organization” in item for chapter 11.
Pub. L. 95–454, title II, § 202(d), Oct. 13, 1978, 92 Stat. 1131, added item for chapter 12.

CHAPTER 11—OFFICE OF PERSONNEL MANAGEMENT

Sec.

1101.Office of Personnel Management.

1102.Director; Deputy Director; Associate Directors.

1103.Functions of the Director.

1104.Delegation of authority for personnel management.

1105.Administrative procedure.

Editorial Notes
Amendments1978—Pub. L. 95–454, title II, § 201(a), Oct. 13, 1978, 92 Stat. 1119, substituted in chapter heading “OFFICE OF PERSONNEL MANAGEMENT” for “ORGANIZATION”, in item 1101 “Office of Personnel Management” for “Appointment of Commissioners”, in item 1102 “Director; Deputy Director; Associate Directors” for “Term of office; filling vacancies; removal”, in item 1103 “Functions of the Director” for “Chairman; Vice Chairman; Executive Director”, in item 1104 “Delegation of authority for personnel management” for “Functions of Chairman”, and in item 1105 “Administrative procedure” for “Boards of examiners”.

§ 1101. Office of Personnel Management
The Office of Personnel Management is an independent establishment in the executive branch. The Office shall have an official seal, which shall be judicially noticed, and shall have its principal office in the District of Columbia, and may have field offices in other appropriate locations.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 398; Pub. L. 95–454, title II, § 201(a), Oct. 13, 1978, 92 Stat. 1119.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 632 (1st par.).Jan. 16, 1883, ch. 27, § 1 (1st par.), 22 Stat. 403.

The words “official place under the United States” are changed to “another office or position in the Government” of the “United States” to conform to the present legislative use of “office” and “position”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Office of Personnel Management” for “Appointment of Commissioners” in section catchline, and in text provisions relating to the establishment, etc., of the Office of Personnel Management for provisions relating to the appointment of members to the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentPub. L. 95–454, title IX, § 907, Oct. 13, 1978, 92 Stat. 1227, provided that: “Except as otherwise expressly provided in this Act, the provisions of this Act [see Tables for classification] shall take effect 90 days after the date of the enactment of this Act [Oct. 13, 1978].”

Short Title of 1992 AmendmentPub. L. 102–378, § 1(a), Oct. 2, 1992, 106 Stat. 1346, provided that: “This Act [see Tables for classification] may be cited as the ‘Technical and Miscellaneous Civil Service Amendments Act of 1992’.”

Short Title of 1984 AmendmentPub. L. 98–224, § 1, Mar. 2, 1984, 98 Stat. 47, provided that: “This Act [amending sections 1304, 3323, 4108, 4109, 7104, and 7122 of this title] may be cited as the ‘Civil Service Miscellaneous Amendments Act of 1983’.”

Short Title of 1978 AmendmentPub. L. 95–454, § 1, Oct. 13, 1978, 92 Stat. 1111, provided that: “This Act [see Tables for classification] may be cited as the ‘Civil Service Reform Act of 1978’.”

Savings ProvisionPub. L. 95–454, title IX, § 902, Oct. 13, 1978, 92 Stat. 1223, provided that:
“(a) Except as otherwise provided in this Act [see Tables for classification], all executive orders, rules, and regulations affecting the Federal service shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the President, the Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority with respect to matters within their respective jurisdictions.

“(b) No provision of this Act [see Tables for classification] shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.

“(c) No suit, action, or other proceeding lawfully commenced by or against the Director of the Office of Personnel Management or the members of the Merit Systems Protection Board, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act [see Effective Date of 1978 Amendment note above], shall abate by reason of the enactment of this Act [see Tables for classification]. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted.”

Transmittal of Record Relating to Presidentially Appointed Positions to Presidential CandidatesPub. L. 108–458, title VIII, § 8403(b), Dec. 17, 2004, 118 Stat. 3870, as amended by Pub. L. 111–283, § 2(c)(2), Oct. 15, 2010, 124 Stat. 3048, provided that:
“(1) Definition.—In this section, the term ‘major party’ has the meaning given that term under section 9002(6) of the Internal Revenue Code of 1986 [26 U.S.C. 9002(6)].

“(2) Transmittal.—“(A) In general.—Not later than 15 days after the date on which a major party nominates a candidate for President, the Office of Personnel Management shall transmit an electronic record to that candidate on Presidentially appointed positions.

(B) Other candidates.—After making transmittals under subparagraph (A), the Office of Personnel Management shall transmit such electronic record to any other candidate for President who is an eligible candidate described in section 3(h)(4)(B) of the Presidential Transition Act of 1963 [Pub. L. 88–277] (3 U.S.C. 102 note) and may transmit such electronic record to any other candidate for President.

“(3) Content.—The record transmitted under this subsection shall provide—“(A) all positions which are appointed by the President, including the title and description of the duties of each position;

“(B) the name of each person holding a position described under subparagraph (A);

“(C) any vacancy in the positions described under subparagraph (A), and the period of time any such position has been vacant;

“(D) the date on which an appointment made after the applicable Presidential election for any position described under subparagraph (A) is necessary to ensure effective operation of the Government; and

“(E) any other information that the Office of Personnel Management determines is useful in making appointments.”

Transfer to Office of Personnel Management of Personnel Investigative Functions and Related Personnel of the Department of DefensePub. L. 108–136, div. A, title IX, § 906, Nov. 24, 2003, 117 Stat. 1561, provided that:
“(a) Transfer of Functions.—(1) Subject to subsection (b), the Secretary of Defense may transfer to the Office of Personnel Management the personnel security investigations functions that, as of the date of the enactment of this Act [Nov. 24, 2003], are performed by the Defense Security Service of the Department of Defense. Such a transfer may be made only with the concurrence of the Director of the Office of Personnel Management.

“(2) The Director of the Office of Personnel Management may accept a transfer of functions under paragraph (1).

“(3) Any transfer of a function under this subsection is a transfer of function within the meaning of section 3503 of title 5, United States Code.

“(b) Limitation.—(1) The Secretary of Defense may not make a transfer of functions under subsection (a) unless the Secretary determines, and certifies in writing to the Committee on Armed Services of the House of Representatives and the Committee on Armed Services of the Senate, that each of the conditions specified in paragraph (2) has been met. Such a transfer may then be made only after a period of 30 days has elapsed after the date on which the certification is received by those committees.

“(2) The conditions referred to in paragraph (1) are the following:“(A) That the Office of Personnel Management is fully capable of carrying out high-priority investigations required by the Secretary of Defense within a timeframe set by the Secretary of Defense.

“(B) That the Office of Personnel Management has undertaken necessary and satisfactory steps to ensure that investigations performed on Department of Defense contract personnel will be conducted in an expeditious manner sufficient to ensure that those contract personnel are available to the Department of Defense within a timeframe set by the Secretary of Defense.

“(C) That the Department of Defense will retain capabilities in the form of Federal employees to monitor and investigate Department of Defense and contractor personnel as necessary to perform counterintelligence functions and polygraph activities of the Department.

“(D) That the authority to adjudicate background investigations will remain with the Department of Defense and that the transfer of Defense Security Service personnel to the Office of Personnel Management will improve the speed and efficiency of the adjudication process.

“(E) That the Department of Defense will retain within the Defense Security Service sufficient personnel and capabilities to improve Department of Defense industrial security programs and practices.

“(c) Transfer of Personnel.—(1) If the Director of the Office of Personnel Management accepts a transfer of functions under subsection (a), the Secretary of Defense shall also transfer to the Office of Personnel Management, and the Director shall accept—“(A) the Defense Security Service employees who perform those functions immediately before the transfer of functions; and

“(B) the Defense Security Service employees who, as of such time, are first level supervisors of employees transferred under subparagraph (A).

“(2) The Secretary may also transfer to the Office of Personnel Management any Defense Security Service employees (including higher level supervisors) who provide support services for the performance of the functions transferred under subsection (a) or for the personnel (including supervisors) transferred under paragraph (1) if the Director—“(A) determines that the transfer of such additional employees and the positions of such employees to the Office of Personnel Management is necessary in the interest of effective performance of the transferred functions; and

“(B) accepts the transfer of the additional employees.

“(3) In the case of an employee transferred to the Office of Personnel Management under paragraph (1) or (2), whether a full-time or part-time employee—“(A) subsections (b) and (c) of section 5362 of title 5, United States Code, relating to grade retention, shall apply to the employee, except that—“(i) the grade retention period shall be the one-year period beginning on the date of the transfer; and

“(ii) paragraphs (1), (2), and (3) of such subsection (c) shall not apply to the employee; and

“(B) the employee may not be separated, other than pursuant to chapter 75 of title 5, United States Code, during such one-year period.

“(d) Actions After Transfer.—(1) Not later than one year after a transfer of functions to the Office of Personnel Management under subsection (a), the Director of the Office of Personnel Management, in coordination with the Secretary of Defense, shall review all functions performed by personnel of the Defense Security Service at the time of the transfer and make a written determination regarding whether each such function is inherently governmental or is otherwise inappropriate for performance by contractor personnel.

“(2) A function performed by Defense Security Service [now Defense Counterintelligence and Security Agency] employees as of the date of the enactment of this Act [Nov. 24, 2003] may not be converted to contractor performance by the Director of the Office of Personnel Management until—“(A) the Director reviews the function in accordance with the requirements of paragraph (1) and makes a written determination that the function is not inherently governmental and is not otherwise inappropriate for contractor performance; and

“(B) the Director conducts a public-private competition regarding the performance of that function in accordance with the requirements of the Office of Management and Budget Circular A–76.”

Federal Flexible Benefits Plan Administrative CostsPub. L. 108–136, div. A, title XI, § 1127, Nov. 24, 2003, 117 Stat. 1640, provided that:
“(a) In General.—Notwithstanding any other provision of law, an agency or other employing entity of the Government which provides or plans to provide a flexible spending account option for its employees shall not impose any fee with respect to any of its employees in order to defray the administrative costs associated therewith.

“(b) Offset of Administrative Costs.—Each such agency or employing entity that offers a flexible spending account option under a program established or administered by the Office of Personnel Management shall periodically forward to such Office, or entity designated by such Office, the amount necessary to offset the administrative costs of such program which are attributable to such agency.

“(c) Reports.—(1) The Office shall submit a report to the Committee on Government Reform [now Committee on Oversight and Reform] of the House of Representatives and the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate no later than March 31, 2004, specifying the administrative costs associated with the Governmentwide program (referred to in subsection (b)) for fiscal year 2003, as well as the projected administrative costs of such program for each of the 5 fiscal years thereafter.

“(2) At the end of each of the first 3 calendar years in which an agency or other employing entity offers a flexible spending account option under this section, such agency or entity shall submit a report to the Office of Management and Budget showing the amount of its employment tax savings in such year which are attributable to such option, net of administrative fees paid under subsection (b).”

Combined Federal Campaign Brochure List and General Designation Option for International AgenciesPub. L. 102–393, title V, § 532, Oct. 6, 1992, 106 Stat. 1763, provided that: “Notwithstanding any other provision of law, beginning October 1, 1992, and thereafter, no funds made available to the Office of Personnel Management may be used to prepare, promulgate, or implement any rules or regulations relating to the Combined Federal Campaign unless such rules or regulations include a Combined Federal Campaign brochure list and general designation option solely for international agencies, which list (listed by Federation in the case of affiliated agencies) and option shall include only those international agencies that elect in their annual application to be included under such list and option rather than under the national agencies list and option: Provided, That such limitation on the use of funds shall not apply to any activities related to the 1992 Combined Federal Campaign.”

Report on Productivity of Federal Workforce; DeadlinePub. L. 101–509, title V, § 535, Nov. 5, 1990, 104 Stat. 1470, directed Office of Personnel Management to review and report to Congress, not later than 24 months after Nov. 5, 1990, on the productivity of the Federal workforce, such report to include recommendations with regard to (1) how productivity within the Federal workforce can be increased, the delivery of Government services improved, and the payroll costs of Government controlled through improved organization, training, advanced technology, and modern management practices, (2) the size, structure, and composition of the Federal workforce, (3) criteria for use by departments and agencies to determine the level of personnel necessary to accomplish their functions and goals, and (4) changes in Federal law, regulations, and administrative practices to promote economy, productivity, effectiveness, and managerial accountability within the Federal workforce.

Funds for Preparation, Promulgation, or Implementation of Regulations Relating to Combined Federal Campaign; Eligibility CriteriaPub. L. 100–202, § 101(m) [title VI, § 618], Dec. 22, 1987, 101 Stat. 1329–390, 1329–423, provided that:
“(a) None of the funds appropriated by this Act, or any other Act in this or any fiscal year hereafter, may be used in preparing, promulgating, or implementing any regulations relating to the Combined Federal Campaign if such regulations are not in conformance with subsection (b).

“(b)(1)(A) Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall not, to the extent that such requirements relate to litigation, public-policy advocacy, or attempting to influence legislation, be any more restrictive than any requirements established with respect to those subject matters under section 501(c)(3) or 501(h) of the Internal Revenue Code of 1986 [26 U.S.C. 501(c)(3), (h)].

“(B) Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall, to the extent that such requirements relate to any subject matter other than one referred to in subparagraph (A), remain the same as the criteria in the 1984 regulations, except as otherwise provided in this section.

“(C) Notwithstanding any requirement referred to in subparagraph (A) or (B), for purposes of any Combined Federal Campaign—“(i) any voluntary agency or federated group which was a named plaintiff as of September 1, 1987, in a case brought in the United States District Court for the District of Columbia, and designated as Civil Action No. 83–0928 or 86–1367, and

“(ii) The Federal Employee Education and Assistance Fund,

shall be considered to have national eligibility.

“(D) Public accountability standards shall remain similar to the standards which were by regulation established with respect to the 1984–1987 Combined Federal Campaigns, except that the Office of Personnel Management shall prescribe regulations under which a voluntary agency or federated group which does not exceed a certain size (as established under such regulations) may submit a copy of an appropriate Federal tax return, rather than complying with any independent auditing requirements which would otherwise apply.

“(2)(A) A voluntary agency or federated group shall, for purposes of any Combined Federal Campaign in any year, be considered to have national eligibility if such agency or group—“(i) complies with all requirements for eligibility to receive contributions through the Combined Federal Campaign, without regard to any requirements relating to ‘local presence’; and

“(ii) demonstrates that it provided services, benefits, or assistance, or otherwise conducted program activities, in—“(I) 15 or more different States over the 3-year period immediately preceding the start of the year involved; or

“(II) several foreign countries or several parts of a foreign country.

For purposes of this subparagraph, an agency or federated group shall be considered to have conducted program activities in the required number of States, countries, or parts of a country, over the period of years involved, if such agency or group conducted program activities in such number of States, countries, or parts either in any single year during such period or in the aggregate over the course of such period, provided that no State, country, or part of a country is counted more than once.

“(B) Notwithstanding any other provisions, eligibility requirements relating to International Services Agencies shall remain at least as inclusive as existing requirements. Any voluntary agency or federated group which attains national eligibility under subparagraph (A), and any voluntary agency which is a member of the International Services Agencies, shall be considered to have satisfied any requirements relating to ‘local presence’.

“(3)(A) If a federated group is eligible to receive donations in a Combined Federal Campaign, whether on a national level (pursuant to certification by the Office) or a local level (pursuant to certification by the local Federal coordinating committee), each voluntary agency which is a member of such group may, upon certification by the federated group, be considered eligible to participate on such national or local level, as the case may be.

“(B) Notwithstanding any provision of subparagraph (A)—“(i) the Office may require a voluntary agency to provide information to support any certification submitted by a federated group with respect to such agency under subparagraph (A); and

“(ii) if a determination is made, in writing after notice and opportunity to submit written comments, that the information submitted by the voluntary agency does not satisfy the applicable eligibility requirements, such agency may be barred from participating in the Combined Federal Campaign on a national or local level, as the case may be, for a period not to exceed 1 campaign year.

“(4) The Office shall exercise oversight responsibility to ensure that—“(A) regulations are uniformly and equitably implemented in all local combined Federal campaigns;

“(B) federated groups participating in a local combined Federal campaign are allowed to compete fairly for the role of principal combined fund organization;

“(C) federated groups participating in a local combined Federal campaign are afforded—“(i) adequate opportunity to consult with the PCFO for the area involved before any plans are made final relating to the design or conduct of such campaign (including plans pertaining to any materials to be printed as part of the campaign);

“(ii) adequate opportunity to participate in campaign events and other related activities; and

“(iii) timely access to all reports, budgets, audits, and other records in the possession of, or under the control of, the PCFO for the areas involved; and

“(D) a federated group or voluntary agency found by the Office, by a written decision issued after notice and opportunity to submit written comments, to have violated the regulations may be barred from serving as a PCFO for not to exceed 1 campaign year.

“(5) The Office shall prescribe regulations to ensure that PCFOs do not make inappropriate delegations of decisionmaking authority.

“(6)(A) The Office shall, in consultation with federated groups, establish a formula under which any undesignated contributions received in a local combined Federal campaign shall be allocated in any year.

“(B) Under the formula for the 1990 Combined Federal Campaign, all undesignated contributions received in a local campaign shall be allocated as follows:“(i) 82 percent shall be allocated to the United Way.

“(ii) 7 percent shall be allocated to the International Services Agencies.

“(iii) 7 percent shall be allocated to the National Voluntary Health Agencies.

“(iv) 4 percent shall, after fair and careful consideration of all eligible federated groups and agencies, be allocated by the local Federal coordinating committee among any or all of the following:“(I) National federated groups (other than any identified in clauses (i), (ii), or (iii)), except that a national federated group shall not be eligible under this subclause unless there are at least 15 members of such group participating in the local campaign, unless the members of such group collectively receive at least 4 percent of the designated contributions in the local campaign, and unless such group was granted national eligibility status for the 1987, 1988, 1989, or 1990 Combined Federal Campaign.

“(II) Local federated groups.

“(III) Any local, non-affiliated voluntary agency which receives at least 4 percent of the designated contributions in the local campaign.

“(C) The formula set forth in subparagraph (B)—“(i) shall be phased in over the course of the 1988 and 1989 Combined Federal Campaigns;

“(ii) shall be fully implemented with respect to the 1990 Combined Federal Campaigns [sic]; and

“(iii) shall, with respect to any Combined Federal Campaign thereafter, be adjusted based on the experience gained in the Combined Federal Campaigns referred to in clauses (i) and (ii).

“(D) Nothing in this paragraph shall apply with respect to any campaign conducted in a foreign country.

“(E) All appropriate steps shall be taken to encourage donors to make designated contributions.

“(7) The option for a donor to write in the name of a voluntary agency or federated group not listed in the campaign brochure to receive that individual’s contribution in a local campaign shall be eliminated.

“(8) The name of any individual making a designated contribution in a campaign shall, upon request of the recipient voluntary agency or federated group, be released to such agency or group, unless the contributor indicates that his or her name is not to be released. Under no circumstance may the names of contributors be sold or otherwise released by such agency or group.

“(9)(A) The name of each participating voluntary agency and federated group, together with a brief description of their respective programs, shall be published in any information leaflet distributed to employees in a local combined Federal campaign. Agencies shall be arranged by federated group, with combined Federal campaign organization code numbers corresponding to each such agency and group.

“(B) The requirement under subparagraph (A) relating to the inclusion of program descriptions may, at the discretion of a local Federal coordinating committee, be waived for a local campaign in any year if, in the immediately preceding campaign year, contributions received through the local campaign totalled less than $100,000.

“(10) Employee coercion is not to be tolerated in the Combined Federal Campaign, and protections against employee coercion shall be strengthened and clarified.

“(11) The Office—“(A) may not, after the date of the enactment of this Act [Dec. 22, 1987], grant national eligibility status to any federated group unless such group has at least 15 member voluntary agencies, each of which meets the requirements for national eligibility under paragraph (2)(A); and

“(B) may withdraw federation status from any federated group for a period of not to exceed 1 campaign year if it is determined, on the record after opportunity for a hearing, that the federated group has not complied with the regulatory requirements.

“(12) The Office may bar from participation in the Combined Federal Campaign, for a period not to exceed 1 campaign year, any voluntary agency which the Office determines, in writing, and after notice and opportunity to submit written comments, did not comply with a reasonable request by the Office to furnish it with information relating to such agency’s campaign accounting and auditing practices.

“(c) For purposes of this section, a voluntary agency or federated group having ‘national eligibility’ is one which is eligible to participate in each local domestic combined Federal campaign.”

Civil Service Reform Act of 1978 Findings and Statement of PurposePub. L. 95–454, § 3, Oct. 13, 1978, 92 Stat. 1112, provided that:
“It is the policy of the United States that—
“(1) in order to provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation’s diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices;

“(2) the merit system principles which shall govern in the competitive service and in the executive branch of the Federal Government should be expressly stated to furnish guidance to Federal agencies in carrying out their responsibilities in administering the public business, and prohibited personnel practices should be statutorily defined to enable Federal employees to avoid conduct which undermines the merit system principles and the integrity of the merit system;

“(3) Federal employees should receive appropriate protection through increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting Federal employees;

“(4) the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;

“(5) the function of filling positions and other personnel functions in the competitive service and in the executive branch should be delegated in appropriate cases to the agencies to expedite processing appointments and other personnel actions, with the control and oversight of this delegation being maintained by the Office of Personnel Management to protect against prohibited personnel practices and the use of unsound management practices by the agencies;

“(6) a Senior Executive Service should be established to provide the flexibility needed by agencies to recruit and retain the highly competent and qualified executives needed to provide more effective management of agencies and their functions, and the more expeditious administration of the public business;

“(7) in appropriate instances, pay increases should be based on quality of performance rather than length of service;

“(8) research programs and demonstration projects should be authorized to permit Federal agencies to experiment, subject to congressional oversight, with new and different personnel management concepts in controlled situations to achieve more efficient management of the Government’s human resources and greater productivity in the delivery of service to the public;

“(9) the training program of the Government should include retraining of employees for positions in other agencies to avoid separations during reductions in force and the loss to the Government of the knowledge and experience that these employees possess; and

“(10) the right of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them, with full regard for the public interest and the effective conduct of public business, should be specifically recognized in statute.”

Powers of President Unaffected Except by Express ProvisionsPub. L. 95–454, title IX, § 904, Oct. 13, 1978, 92 Stat. 1224, provided that:
“Except as otherwise expressly provided in this Act [see Tables for classification], no provision of this Act shall be construed to—
“(1) limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had immediately before the effective date of this Act [see Effective Date of 1978 Amendment note above]; or

“(2) limit, curtail, or terminate the President’s authority to delegate, redelegate, or terminate any delegation of functions.”

Executive Documents
Reorganization Plans No. 1 and 2 of 1978 Superseded by Civil Service Reform Act of 1978Pub. L. 95–454, title IX, § 905, Oct. 13, 1978, 92 Stat. 1224, provided that: “Any provision in either Reorganization Plan Numbered 1 [set out in the Appendix to this title] or 2 [set out below] of 1978 inconsistent with any provision in this Act [see Tables for classification] is hereby superseded.”

REORGANIZATION PLAN NO. 2 OF 197843 F.R. 36037, 92 Stat. 3783Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, May 23, 1978,11 As amended July 11, 1978. pursuant to the provisions of Chapter 9 of Title 5 of the United States Code.

PART I. OFFICE OF PERSONNEL MANAGEMENT
Section 101. Establishment of the Office of Personnel Management and Its Director and Other MattersThere is hereby established as an independent establishment in the Executive Branch, the Office of Personnel Management (the “Office”). The head of the Office shall be the Director of the Office of Personnel Management (the “Director”), who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be compensated at the rate now or hereafter provided for level II of the Executive Schedule [5 U.S.C. 5313]. The position referred to in 5 U.S.C. 5109(b) is hereby abolished.

Sec. 102. Transfer of FunctionsExcept as otherwise specified in this Plan, all functions vested by statute in the United States Civil Service Commission, or the Chairman of said Commission, or the Boards of Examiners established by 5 U.S.C. 1105 are hereby transferred to the Director of the Office of Personnel Management.

Sec. 103. Deputy Director and Associate Directors(a) There shall be within the Office a Deputy Director who shall be appointed by the President by and with the advice and consent of the Senate and who shall be compensated at the rate now or hereafter provided for level III of the Executive Schedule [5 U.S.C. 5314]. The Deputy Director shall perform such functions as the Director may from time to time prescribe and shall act as Director during the absence or disability of the Director or in the event of a vacancy in the Office of the Director.
(b) There shall be within the Office not more than five Associate Directors, who shall be appointed by the Director in the excepted service, shall have such titles as the Director shall from time to time determine, and shall receive compensation at the rate now or hereafter provided for level IV of the Executive Schedule [5 U.S.C. 5315].

Sec. 104. Functions of the DirectorThe functions of the Director shall include, but not be limited to, the following:
(a) Aiding the President, as the President may request, in preparing such rules as the President prescribes, for the administration of civilian employment now within the jurisdiction of the United States Civil Service Commission;
(b) Advising the President, as the President may request, on any matters pertaining to civilian employment now within the jurisdiction of the United States Civil Service Commission;
(c) Executing, administering and enforcing the Civil Service rules and regulations of the President and the Office and the statutes governing the same, and other activities of the Office including retirement and classification activities except to the extent such functions remain vested in the Merit Systems Protection Board pursuant to Section 202 of this Plan, or are transferred to the Special Counsel pursuant to Section 204 of this Plan. The Director shall provide the public, where appropriate, a reasonable opportunity to comment and submit written views on the implementation and interpretation of such rules and regulations;
(d) Conducting or otherwise providing for studies and research for the purpose of assuring improvements in personnel management, and recommending to the President actions to promote an efficient Civil Service and a systematic application of the merit system principles, including measures relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separations of employees; and
(e) Performing the training responsibilities now performed by the United States Civil Service Commission as set forth in 5 U.S.C. Chapter 41.

Sec. 105. Authority To Delegate FunctionsThe Director may delegate, from time to time, to the head of any agency employing persons in the competitive service, the performance of all or any part of those functions transferred under this Plan to the Director which relate to employees, or applicants for employment, of such agency.

PART II. MERIT SYSTEMS PROTECTION BOARD
Sec. 201. Merit Systems Protection Board(a) The United States Civil Service Commission is hereby redesignated the Merit Systems Protection Board. The Commissioners of the United States Civil Service Commission are hereby redesignated as members of the Merit Systems Protection Board (the “Board”).
(b) The Chairman of the Board shall be its chief executive and administrative officer. The position of Executive Director, established by 5 U.S.C. 1103(d), is hereby abolished.

Sec. 202. Functions of the Merit Systems Protection Board and Related Matters(a) There shall remain with the Board the hearing, adjudication, and appeals functions of the United States Civil Service Commission specified in 5 U.S.C. 1104(b)(4) (except hearings, adjudications and appeals with respect to examination ratings), and also found in the following statutes:
(i) 5 U.S.C. 1504–1507, 7325, 5335, 7521, 7701 and 8347(d);
(ii) 38 U.S.C. 2023
(b) There shall remain with the Board the functions vested in the United States Civil Service Commission, or its Chairman, pursuant to 5 U.S.C. 1104(a)(5) and (b)(4) to enforce decisions rendered pursuant to the authorities described in Subsection (a) of this Section.
(c) Any member of the Board may request from the Director, in connection with a matter then pending before the Board for adjudication, an advisory opinion concerning interpretation of rules, regulations, or other policy directives promulgated by the Office of Personnel Management.
(d) Whenever the interpretation or application of a rule, regulation, or policy directive of the Office of Personnel Management is at issue in any hearing, adjudication, or appeal before the Board, the Board shall promptly notify the Director, and the Director shall have the right to intervene in such proceedings.
(e) The Board shall designate individuals to chair performance rating boards established pursuant to 5 U.S.C. 4305.
(f) The Chairman of the Board shall designate representatives to chair boards of review established pursuant to 5 U.S.C. 3383(b).
(g) The Board may from time to time conduct special studies relating to the Civil Service, and to other merit systems in the Executive Branch and report to the President and the Congress whether the public interest in a workforce free of personnel practices prohibited by law or regulations is being adequately protected. In carrying out this function the Board shall make such inquiries as may be necessary, and, to the extent permitted by law, shall have access to personnel records or information collected by the Office of Personnel Management and may require additional reports from other agencies as needed. The Board shall make such recommendations to the President and the Congress as it deems appropriate.
(h) The Board may delegate the performance of any of its administrative functions to any officer or employee of the Board.
(i) The Board shall have the authority to prescribe such regulations as may be necessary for the performance of its functions. The Board shall not issue advisory opinions. The Board may issue rules and regulations, consistent with statutory requirements, defining its review procedures, including the time limits within which an appeal must be filed and the rights and responsibilities of the parties to an appeal. All regulations of the Board shall be published in the Federal Register.

Sec. 203. Savings ProvisionThe Board shall accept appeals from agency actions effected prior to the effective date of this Plan. On the effective date of Part II of this Plan, proceedings then before the Federal Employee Appeals Authority shall continue before the Board; proceedings then before the Appeals Review Board and proceedings then before the United States Civil Service Commission on appeal from decisions of the Appeals Review Board shall continue before the Board; other employee appeals before boards or other bodies pursuant to law or regulation shall continue to be processed pursuant to those laws or regulations. Nothing in this section shall affect the right of a Federal employee to judicial review under applicable law.

Sec. 204. The Special Counsel(a) There shall be a Special Counsel to the Board appointed for a term of four years by the President by and with the advice and consent of the Senate, who shall be compensated as now or hereafter provided for level IV of the Executive Schedule [5 U.S.C. 5315].
(b) There are hereby transferred to the Special Counsel all functions with respect to investigations relating to violations of 5 U.S.C. Chapter 15; 5 U.S.C. Subchapter III of Chapter 73 (Political Activities); and 5 U.S.C. 552(a)(4)(F) (public information).
(c) The Special Counsel may investigate, pursuant to 5 U.S.C. 1303, allegations of personnel practices which are prohibited by law or regulation.
(d) When in the judgment of the Special Counsel, such personnel practices exist, he shall report his findings and recommendations to the Chairman of the Merit Systems Protection Board, the agency affected, and to the Office of Personnel Management, and may report such findings to the President.
(e) When in the judgment of the Special Counsel, the results of an investigation would warrant the taking of disciplinary action against an employee who is within the jurisdiction of the Board, the Special Counsel shall prepare charges against such employee and present them with supporting documentation to the Board. Evidence supporting the need for disciplinary action against a Presidential appointee shall be submitted by the Special Counsel to the President.
(f) The Special Counsel may appoint personnel necessary to assist in the performance of his functions.
(g) The Special Counsel shall have the authority to prescribe rules and regulations relating to the receipt and investigation of matters under his jurisdiction. Such regulations shall be published in the Federal Register.
(h) The Special Counsel shall not issue advisory opinions.

PART III. FEDERAL LABOR RELATIONS AUTHORITY
Sec. 301. Establishment of the Federal Labor Relations Authority(a) There is hereby established, as an independent establishment in the Executive Branch, the Federal Labor Relations Authority (the “Authority”). The Authority shall be composed of three members, one of whom shall be Chairman, not more than two of whom may be adherents of the same political party, and none of whom may hold another office or position in the Government of the United States except where provided by law or by the President.
(b) Members of the Authority shall be appointed by the President, by and with the advice and consent of the Senate. The President shall designate one member to serve as Chairman of the Authority, who shall be compensated at the rate now or hereafter provided for level III of the Executive Schedule [5 U.S.C. 5314]. The other members shall be compensated at the rate now or hereafter provided for level IV of the Executive Schedule [5 U.S.C. 5315].
(c) The initial members of the Authority shall be appointed as follows: one member for a term of two years; one member for a term of three years; and the Chairman for a term of four years. Thereafter, each member shall be appointed for a term of four years. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.
(d) The Authority shall make an annual report on its activities to the President for transmittal to Congress.

Sec. 302. Establishment of the General Counsel of the AuthorityThere shall be a General Counsel of the Authority, who shall be appointed by the President, by and with the advice and consent of the Senate for a term of four years, and who shall be compensated at the rate now or hereafter provided for level V of the Executive Schedule [5 U.S.C. 5316]. The General Counsel shall perform such duties as the Authority shall from time to time prescribe, including but not limited to the duty of determining and presenting facts required by the Authority in order to decide unfair labor practice complaints.

Sec. 303. The Federal Service Impasses PanelThe Federal Service Impasses Panel, established under Executive Order 11491, as amended [set out under 5 U.S.C. 7101], (the “Panel”) shall continue, and shall be a distinct organizational entity within the Authority.

Sec. 304. FunctionsSubject to the provisions of Section 306, the following functions are hereby transferred:
(a) To the Authority—
(1) The functions of the Federal Labor Relations Council pursuant to Executive Order 11491, as amended [set out under 5 U.S.C. 7101];
(2) The functions of the Civil Service Commission under Sections 4(a) and 6(e) of Executive Order 11491, as amended;
(3) The functions of the Assistant Secretary of Labor for Labor-Management Relations, under Executive Order 11491, as amended, except for those functions related to alleged violations of the standards of conduct for labor organizations pursuant to Section 6(a)(4) of said Executive Order; and,
(b) to the Panel—the functions and authorities of the Federal Service Impasses Panel, pursuant to Executive Order 11491, as amended.

Sec. 305. Authority DecisionsThe decisions of the Authority on any matter within its jurisdiction shall be final and not subject to judicial review.

Sec. 306. Other ProvisionsUnless and until modified, revised, or revoked, all policies, regulations, and procedures established, and decisions issued, under Executive Order 11491, as amended [set out under 5 U.S.C. 7101], shall remain in full force and effect. There is hereby expressly reserved to the President the power to modify the functions transferred to the Federal Labor Relations Authority and the Federal Service Impasses Panel pursuant to Section 304 of this Plan.

Sec. 307. Savings ProvisionAll matters which relate to the functions transferred by Section 304 of this Plan, and which are pending on the effective date of the establishment of the Authority before the Federal Labor Relations Council, the Vice Chairman of the Civil Service Commission, or the Assistant Secretary of Labor for Labor-Management Relations shall continue before the Authority under such rules and procedures as the Authority shall prescribe. All such matters pending on the effective date of the establishment of the Authority before the Panel, shall continue before the Panel under such rules and procedures as the Panel shall prescribe.

PART IV. GENERAL PROVISIONS
Sec. 401. Incidental TransferSo much of the personnel, property, records, and unexpended balances of appropriations, allocations and other funds employed, used, held, available, or to be made available in connection with the functions transferred under this Plan, as the Director of the Office of Management and Budget shall determine, shall be transferred to the appropriate agency, or component at such time or times as the Director of the Office of Management and Budget shall provide, except that no such unexpended balances transferred shall be used for purposes other than those for which the appropriation was originally made. The Director of the Office of Management and Budget shall provide for terminating the affairs of any agencies abolished herein and for such further measures and dispositions as such Director deems necessary to effectuate the purposes of this Reorganization Plan.

Sec. 402. Interim Officers(a) The President may authorize any persons who, immediately prior to the effective date of this Plan, held positions in the Executive Branch of the Government, to act as Director of the Office of Personnel Management, the Deputy Director of the Office of Personnel Management, the Special Counsel, the Chairman and other members of the Federal Labor Relations Authority, the Chairman and other members of the Federal Service Impasses Panel, or the General Counsel of the Authority, until those offices are for the first time filled pursuant to the provisions of this Reorganization Plan or by recess appointment, as the case may be.
(b) The President may authorize any such person to receive the compensation attached to the Office in respect of which that person so serves, in lieu of other compensation from the United States.

Sec. 403. Effective DateThe provisions of this Reorganization Plan shall become effective at such time or times, on or before January 1, 1979, as the President shall specify, but not sooner than the earliest time allowable under Section 906 of Title 5, United States Code.
[Pursuant to Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, this Reorg. Plan is generally effective Jan. 1, 1979.]

Message of the PresidentTo the Congress of the United States:
On March 2nd I sent to Congress a Civil Service Reform proposal to enable the Federal government to improve its service to the American people.
Today I am submitting another part of my comprehensive proposal to reform the Federal personnel management system through Reorganization Plan No. 2 of 1978. The plan will reorganize the Civil Service Commission and thereby create new institutions to increase the effectiveness of management and strengthen the protection of employee rights.
The Civil Service Commission has acquired inherently conflicting responsibilities: to help manage the Federal Government and to protect the rights of Federal employees. It has done neither job well. The Plan would separate the two functions.

office of personnel managementThe positive personnel management tasks of the government—such as training, productivity programs, examinations, and pay and benefits administration—would be the responsibility of an Office of Personnel Management. Its Director, appointed by the President and confirmed by the Senate, would be responsible for administering Federal personnel matters except for Presidential appointments. The Director would be the government’s principal representative in Federal labor relations matters.

merit systems protection boardThe adjudication and prosecution responsibilities of the Civil Service Commission will be performed by the Merit Systems Protection Board. The Board will be headed by a bipartisan panel of three members appointed to six-year, staggered terms. This Board would be the first independent and institutionally impartial Federal agency solely for the protection of Federal employees.
The Plan will create, within the Board, a Special Counsel to investigate and prosecute political abuses and merit system violations. Under the civil service reform legislation now being considered by the Congress, the Counsel would have power to investigate and prevent reprisals against employees who report illegal acts—the so-called “whistleblowers.” The Council would be appointed by the President and confirmed by the Senate.

federal labor relations authorityAn Executive Order now vests existing labor-management relations in a part-time Federal Labor-Relations Council, comprised of three top government managers; other important functions are assigned to the Assistant Secretary of Labor for Labor-Management Relations. This arrangement is defective because the Council members are part-time, they come exclusively from the ranks of management and their jurisdiction is fragmented.
The Plan I submit today would consolidate the central policymaking functions in labor-management relations now divided between the Council and the Assistant Secretary into one Federal Labor Relations Authority. The Authority would be composed of three full-time members appointed by the President with the advice and consent of the Senate. Its General Counsel, also appointed by the President and confirmed by the Senate, would present unfair labor practice complaints. The Plan also provides for the continuance of the Federal Service Impasses Panel within the Authority to resolve negotiating impasses between Federal employee unions and agencies.
The cost of replacing the Civil Service Commission can be paid by our present resources. The reorganization itself would neither increase nor decrease the costs of personnel management throughout the government. But taken together with the substantive reforms I have proposed, this Plan will greatly improve the government’s ability to manage programs, speed the delivery of Federal services to the public, and aid in executing other reorganizations I will propose to the Congress, by improving Federal personnel management.
Each of the provisions of this proposed reorganization would accomplish one or more of the purposes set forth in 5 U.S.C. 901(a). No functions are abolished by the Plan, but the offices referred to in 5 U.S.C. 5109(b) and 5 U.S.C. 1103(d) are abolished. The portions of the Plan providing for the appointment and pay for the head and one or more officers of the Office of Personnel Management, the Merit Systems Protection Board, the Federal Labor Relations Authority and the Federal Service Impasses Panel, are necessary to carry out the reorganization. The rates of compensation are comparable to those for similar positions within the Executive Branch.
I am confident that this Plan and the companion civil service reform legislation will both lead to more effective protection of Federal employees’ legitimate rights and a more rewarding workplace. At the same time the American people will benefit from a better managed, more productive and more efficient Federal Government.

Jimmy Carter.

The White House, May 23, 1978.

Executive Order No. 10729
Ex. Ord. No. 10729, Sept. 16, 1957, 22 F.R. 7449, which established the position of the Special Assistant to the President for Personnel Management, was revoked by Ex. Ord. No. 11205, Mar. 15, 1965, 30 F.R. 3513.

Ex. Ord. No. 11205. Revocation of Executive Order No. 10729
Ex. Ord. No. 11205, Mar. 15, 1965, 30 F.R. 3513, provided:
By virtue of the authority vested in me as President of the United States, the position of Special Assistant to the President for Personnel Management, established by Executive Order No. 10729 of September 16, 1957, is abolished, and that Order is hereby revoked.

Lyndon B. Johnson.

Ex. Ord. No. 12107. Implementation of Reform of Personnel Management System
Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, as amended by Ex. Ord. No. 12126, Mar. 29, 1979, 44 F.R. 18923; Ex. Ord. No. 12128, Apr. 4, 1979, 44 F.R. 20625, provided:
By virtue of the authority vested in me as President by the Constitution and statutes of the United States of America, and by Section 403 of Reorganization Plan No. 2 of 1978 (43 FR 36037) [set out above], it is hereby ordered as follows:

Section 1

implementation of reorganization plan no. 2 of 1978

1–1. Office of Personnel Management
1–101. Establishment of Office of Personnel Management. The establishment of the Office of Personnel Management and of the positions of Director, Deputy Director, and Associate Directors of that Office, as provided in Sections 101 and 103 of Reorganization Plan No. 2 of 1978, shall be effective on January 1, 1979.
1–102. Transfer of Functions. Section 102 of Reorganization Plan No. 2 of 1978, transferring functions to the Director of the Office of Personnel Management, shall be effective on January 1, 1979.

1–2. Merit Systems Protection Board
1–201. Redesignation of Civil Service Commission. The redesignation of the Civil Service Commission as the Merit Systems Protection Board and of the Commissioners as Members of the Board as provided in Section 201 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–202. Functions of the Merit Systems Protection Board. The functions of the Merit Systems Protection Board as provided in Section 202 and the savings provisions of Section 203 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–3. The Special Counsel
1–301. Establishment of the Office of Special Counsel. The establishment of the Office of Special Counsel to the Merit Systems Protection Board as provided in Section 204(a) of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–302. Functions of the Special Counsel. The transfer of functions provided for in Section 204(b) and the performance of functions set forth in Section 204(c)–(g) of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–4. The Federal Labor Relations Authority
1–401. The Establishment of the Federal Labor Relations Authority and the Office of General Counsel. The establishment of the Federal Labor Relations Authority as provided in Section 301 and of the Office of General Counsel of the Authority as provided in Section 302 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–402. The Federal Service Impasses Panel. The continuation of the Federal Service Impasses Panel established under Executive Order No. 11491, as amended [set out as a note under section 7101 of this title], as a distinct organizational entity within the Federal Labor Relations Authority as provided in Section 303 of Reorganization Plan No. 2 of 1978, shall be effective on January 1, 1979.
1–403. Functions of the Federal Labor Relations Authority, the General Counsel, and the Federal Service Impasses Panel. The transfer of functions provided for in Section 304 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

1–5. General
1–501. General Effective Date. All other provisions of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.

Section 2

redesignations, amendments to rules and executive orders and general provisions

2–1. Redesignations
2–101. Office of Personnel Management. Each of the Executive orders, as amended, listed in this Section under subsections (a) and (b), as applicable, and any other order which relates to functions or areas of responsibility delegated to the Office of Personnel Management, is amended and revised by substituting the words “Office of Personnel Management” for the words “Civil Service Commission” or “United States Civil Service Commission”; by substituting the word “Office” for the word “Commission” wherever the word “Commission” is used as a reference to United States Civil Service Commission; and by substituting the words “Director, Office of Personnel Management” for the words “Chairman, Civil Service Commission”, “Chairman, United States Civil Service Commission”, “Commissioners” or “Commissioner” wherever they appear.
(a) Executive orders relating to the Civil Service Rules, ethics and other matters of Presidential interest.

Executive Orders Numbered

8743
10577, as amended, except for Rules IV and V, as amended in this order,
10641
10717
10927
11183
11222
11315
11451
11570
11639
11648
11721
11935
12004
12014
12043

(b) Other Executive orders relating to Federal Personnel Management, and membership on Councils, Boards, and Committees.

Executive Orders Numbered

8744
9230
9712
9830
9932
9961
10000
10242
10422
10450
10459
10530
10549
10550
10552
10556
10647
10763
10774, except for Section 3(e)
10804
10826
10880
10903
10973
10982
11103
11171
11203
11219
11228
11264
11348
11355
11422
11434
11438
11490
11521
11552
11561
11579
11589
11603
11609
11639
11744
11817
11890
11895
11899
11938
11955
12008
12015
12027
12049
12067
12070
12089
12105

2–102. Merit Systems Protection Board. The provisions of Section 3(e) of Executive Order No. 10774 [set out as a note under section 2025 of Title 22, Foreign Relations and Intercourse], and Executive Order No. 11787 [formerly set out as a note under section 7701 of this title], are hereby amended and revised by substituting the words “Merit Systems Protection Board” for the words “Civil Service Commission” or “Commission” when used as a reference to the Civil Service Commission wherever such words appear.
2–103. [Amended Civil Service Rules under section 101 of Ex. Ord. No. 10577, formerly set out as a note under section 3301 of this title.]
2–104. Effectiveness of Rule Changes. The amendments to rules shall be effective on January 1, 1979, to the extent provided by law on that date.

2–2. Revocation of Executive Orders and Delegation of Functions
2–201. Revocation of Executive Orders and Delegation of Functions to the Director. Executive Orders numbered 10540 and 10561 [set out as notes under sections 6301 and 1302, respectively, of this title] are revoked and the authority vested in the President by Section 202(c)(1)(C) of the Annual Sick Leave Act of 1951, as amended [section 6301(2)(XI) of this title], and the authority of the President, pursuant to the Civil Service Act of January 16, 1883, to designate official personnel folders in government agencies as records of the Office of Personnel Management and to prescribe regulations relating to the establishment, maintenance and transfers of official personnel folders, are delegated to the Director of the Office of Personnel Management. Any rules, regulations, directives, instructions or other actions taken pursuant to the authority delegated to the Director of the Office of Personnel Management shall remain in effect until amended, modified, or revoked pursuant to the delegations made by this Order.
2–202. Savings Provision. All personnel actions and decisions affecting employees or applicants for employment made on or before January 11, 1979 shall continue to be governed by the applicable Executive order, and the rules and regulations implementing that Order, to the same extent as if that Executive order had not been revoked effective January 11, 1979 unless amended, modified or revoked pursuant to this Order.

2–3. Labor Management Relations in the Federal Service
2–301. [Amended Ex. Ord. No. 11491, set out as a note under section 7101 of this title.]

2–4. General Provisions
2–401. Study and Report Provisions. The Director of the Office of Personnel Management is directed to conduct a study of Executive orders listed in Section 2–101(a) and (b) and to coordinate the study with such other agencies as may be named in or affected by these orders. The Director of Personnel Management and the Director of the Office of Management and Budget are directed to submit a report on or before July 1, 1981 to the President concerning the performance of functions specified in these Executive orders and any other Executive orders affecting the functions or responsibilities of the Office of Personnel Management. The report shall contain specific detailed recommendations for the continuation, modification, revision or revocation of each Executive order.
2–402. Continuing Effect of this Order. Except as required by the Civil Service Reform Act of 1978 [Pub. L. 95–454] as its provisions become effective, in accord with Section 7135 of Title 5, United States Code, as amended, and in accord with Section 902(a) of that Act [set out as a Savings Provisions note above], the provisions of this Order shall continue in effect, according to its terms, until modified, terminated or suspended.
2–403. Transfers and Determinations.
(a) The records, property, personnel and positions, and unexpended balances of appropriations or funds related to Civil Service Commission functions reassigned by this Order that are available, or to be made available, and necessary to finance or discharge the reassigned functions are transferred to the Director of the Office of Personnel Management, the Federal Labor Relations Authority, or the Federal Service Impasses Panel, as appropriate.
(b) The Director of the Office of Management and Budget shall make such determinations, issue such Orders and take all actions necessary or appropriate to effectuate the transfers or reassignments provided by this Order, including the transfer of funds, records, property and personnel.
2–404. Effective Date. Except as otherwise specifically provided in this Order, this Order shall be effective on January 1, 1979.

Jimmy Carter.

Executive Order No. 12157
Ex. Ord. No. 12157, Sept. 14, 1979, 44 F.R. 54035, which related to the President’s Management Improvement Council, was revoked by Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, formerly set out as a note under section 14 of the Appendix to this title.

Ex. Ord. No. 12353. Charitable Fund-Raising
Ex. Ord. No. 12353, Mar. 23, 1982, 47 F.R. 12785, as amended by Ex. Ord. No. 12404, § 1, Feb. 10, 1983, 48 F.R. 6685; Ex. Ord. No. 13743, § 1, Oct. 13, 2016, 81 F.R. 71571, provided:
By the authority vested in me as President by the Constitution of the United States of America, and in order to support and facilitate fund-raising on behalf of voluntary health and welfare organizations through on-the-job solicitations of Federal employees and members of the uniformed services, and to ensure that the recipient organizations are responsible in the uses of the monies so raised, it is hereby ordered as follows:
Section 1.
(a) The Director of the Office of Personnel Management shall make arrangements for voluntary health and welfare organizations to solicit contributions from Federal employees and members of the uniformed services at their places of employment or duty. Federal employees and members of the uniformed services can also be solicited to make pledges of volunteer time. These arrangements shall take the form of an annual Combined Federal Campaign in which eligible voluntary health and welfare organizations are authorized to take part.
(b) The Director shall consider permitting annuitants to make contributions to the Combined Federal Campaign through allotments or assignments of amounts from their Federal annuities. The Director may prescribe rules and regulations to govern the solicitation of such contributions and make arrangements to inform annuitants of their ability to make contributions in this manner.
Sec. 2. (a) The Director shall establish criteria for determining the eligibility of voluntary health and welfare organizations that may participate in each of the annual Combined Federal Campaigns.
(b) In establishing those criteria, the Director shall be guided by the following principles and policies:
(1) The objectives of the Combined Federal Campaign are to lessen the burdens of government in meeting needs of human health and welfare; to provide a convenient channel through which Federal public servants may contribute to these efforts; to minimize or eliminate disruption of the Federal workplace and costs to Federal taxpayers that such fund-raising may entail; and to avoid the reality and appearance of the use of Federal resources in aid of fund-raising for political activity or advocacy of public policy, lobbying, or philanthropy of any kind that does not directly serve needs of human health and welfare.
(2) To meet these objectives, eligibility for participation in the Combined Federal Campaign shall be limited to voluntary, charitable, health and welfare organizations that provide or support direct health and welfare services to individuals or their families. Such direct health and welfare services must be available to Federal employees in the local campaign solicitation area, unless they are rendered to needy persons overseas. Such services must directly benefit human beings, whether children, youth, adults, the aged, the ill and infirm, or the mentally or physically handicapped. Such services must consist of care, research or education in the fields of human health or social adjustment and rehabilitation; relief of victims of natural disasters and other emergencies; or assistance to those who are impoverished and therefore in need of food, shelter, clothing, education, and basic human welfare services.
(3) Organizations that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves shall not be deemed charitable health and welfare organizations and shall not be eligible to participate in the Combined Federal Campaign.
(4) International organizations that provide health and welfare services overseas, and that meet the eligibility criteria except for the local services criterion, shall be eligible to participate in each local solicitation area of the Combined Federal Campaign.
(5) Local voluntary, charitable, health and welfare organizations that are not affiliated with a national organization or federation but that satisfy the eligibility criteria set forth in this order and by the Director shall be permitted to participate in the Combined Federal Campaign.
Sec. 3. In making arrangements for the Combined Federal Campaign, the Director is authorized, in his discretion, to consult with the Departments and agencies concerned, representatives of the employees and members to be solicited, and, to the extent practicable, representatives of voluntary health and welfare organizations seeking to participate in a Combined Federal Campaign.
Sec. 4. The arrangements made by the Director shall (a) ensure that all contributions are voluntary, that there is no coercion, and that individuals have the option of disclosing their contribution or keeping it confidential, (b) designate the specific period during which the annual solicitation may be conducted, and (c) permit only one annual solicitation except in cases of emergency or disaster appeals for which specific provision shall be made by the Director.
Sec. 5. Subject to such rules and regulations as the Director may prescribe, the Director may authorize:
(a) outreach coordinators to conduct campaign promotion in a local Combined Federal Campaign; and
(b) central campaign administrators to administer application and pledging systems and to collect and disburse pledged funds.
Such authorizations shall, if made, ensure at a minimum that outreach coordinators and central campaign administrators operate subject to the direction and control of the Director and such local Federal coordinating entities as may be established; and manage the Combined Federal Campaign fairly and equitably. The Director may consult with and consider advice from interested parties and organizations, and shall publish reports on the management and results of the Combined Federal Campaign.
Sec. 6. The methods for the solicitation of funds shall clearly specify the eligible organizations and provide a direct means to designate funds to such organizations. Where allocation of undesignated funds by the central campaign administrator is authorized by the Director, prominent notice of the authorization for such allocation shall be provided.
Sec. 7. This Order shall not apply to solicitations conducted by organizations composed of civilian employees or members of the uniformed services among their own members for organizational support or for the benefit of welfare funds for their members. Such solicitations shall be conducted under policies and procedures approved by the head of the Department or agency concerned.
Sec. 8. The Director shall prescribe such rules and regulations as may be necessary to implement this Order.
Sec. 9. Executive Order No. 10927 [Mar. 18, 1961, 26 F.R. 2383], as amended, is revoked. Notwithstanding that revocation, directives issued under that Order shall continue in effect until revoked or modified under the provisions of this Order.
[Section 2(d) of Ex. Ord. No. 13743 provided that all rules, regulations, and directives continued or issued under Ex. Ord. No. 12353, set out above, would continue in effect until revoked or modified under the provisions of Ex. Ord. No. 13743.]
[Section 2 of Ex. Ord. No. 12404 provided that all rules, regulations, and directives continued or issued under Ex. Ord. No. 12353, set out above, would continue in full force and effect until revoked or modified under the provisions of Ex. Ord. No. 12404.]

§ 1102. Director; Deputy Director; Associate Directors(a) There is at the head of the Office of Personnel Management a Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The term of office of any individual appointed as Director shall be 4 years.

(b) There is in the Office a Deputy Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The Deputy Director shall perform such functions as the Director may from time to time prescribe and shall act as Director during the absence or disability of the Director or when the office of Director is vacant.

(c) No individual shall, while serving as Director or Deputy Director, serve in any other office or position in the Government of the United States except as otherwise provided by law or at the direction of the President. The Director and Deputy Director shall not recommend any individual for appointment to any position (other than Deputy Director of the Office) which requires the advice and consent of the Senate.

(d) There may be within the Office of Personnel Management not more than 5 Associate Directors, as determined from time to time by the Director. Each Associate Director shall be appointed by the Director.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 95–454, title II, § 201(a), Oct. 13, 1978, 92 Stat. 1119.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 632 (2d–4th pars.).Jan. 16, 1883, ch. 27, § 1 (2d, 3d pars.), 22 Stat. 403.July 31, 1956, ch. 804, § 201(a), 70 Stat. 742.

In subsection (a), the second sentence is substituted for original language concerning designation of Commissioners to serve six, four, and two years, respectively, as that provision is executed.
The section is reorganized to place the statutes relating to vacancies together, and redundancies are eliminated. Provisions relating to pay and travel expenses of Commissioners are omitted as superseded by the Act of Aug. 14, 1964, Pub. L. 88–426, § 303(c)(18), (d)(66), 78 Stat. 417, 419, and Act of June 9, 1949, ch. 185, 63 Stat. 166, respectively, which are carried into this title.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Director; Deputy Director; Associate Directors” for “Term of office; filling vacancies; removal” in section catchline, and in text provisions relating to the Director, Deputy Director, and Associate Directors of the Office of Personnel Management for provisions relating to the term of office, vacancies, and removal of members of the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1103. Functions of the Director(a) The following functions are vested in the Director of the Office of Personnel Management, and shall be performed by the Director, or subject to section 1104 of this title, by such employees of the Office as the Director designates:(1) securing accuracy, uniformity, and justice in the functions of the Office;

(2) appointing individuals to be employed by the Office;

(3) directing and supervising employees of the Office, distributing business among employees and organizational units of the Office, and directing the internal management of the Office;

(4) directing the preparation of requests for appropriations for the Office and the use and expenditure of funds by the Office;

(5) executing, administering, and enforcing—(A) the civil service rules and regulations of the President and the Office and the laws governing the civil service; and

(B) the other activities of the Office including retirement and classification activities;

except with respect to functions for which the Merit Systems Protection Board or the Special Counsel is primarily responsible;

(6) reviewing the operations under chapter 87 of this title;

(7) aiding the President, as the President may request, in preparing such civil service rules as the President prescribes, and otherwise advising the President on actions which may be taken to promote an efficient civil service and a systematic application of the merit system principles, including recommending policies relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separation of employees;

(8) conducting, or otherwise providing for the conduct of, studies and research under chapter 47 of this title into methods of assuring improvements in personnel management; and

(9) incurring official reception and representation expenses of the Office subject to any limitation prescribed in any law.

(b)(1) The Director shall publish in the Federal Register general notice of any rule or regulation which is proposed by the Office and the application of which does not apply solely to the Office or its employees. Any such notice shall include the matter required under section 553(b)(1), (2), and (3) of this title.

(2) The Director shall take steps to ensure that—(A) any proposed rule or regulation to which paragraph (1) of this subsection applies is posted in offices of Federal agencies maintaining copies of the Federal personnel regulations; and

(B) to the extent the Director determines appropriate and practical, exclusive representatives of employees affected by such proposed rule or regulation and interested members of the public are notified of such proposed rule or regulation.

(3) Paragraphs (1) and (2) of this subsection shall not apply to any proposed rule or regulation which is temporary in nature and which is necessary to be implemented expeditiously as a result of an emergency.

(4) Paragraphs (1) and (2) of this subsection and section 1105 of this title shall not apply to the establishment of any schedules or rates of basic pay or allowances under subpart D of part III of this title. The preceding sentence does not apply to the establishment of the procedures, methodology, or criteria used to establish such schedules, rates, or allowances.

(c)(1) The Office of Personnel Management shall design a set of systems, including appropriate metrics, for assessing the management of human capital by Federal agencies.

(2) The systems referred to under paragraph (1) shall be defined in regulations of the Office of Personnel Management and include standards for—(A)(i) aligning human capital strategies of agencies with the missions, goals, and organizational objectives of those agencies; and

(ii) integrating those strategies into the budget and strategic plans of those agencies;

(B) closing skill gaps in mission critical occupations;

(C) ensuring continuity of effective leadership through implementation of recruitment, development, and succession plans;

(D) sustaining a culture that cultivates and develops a high performing workforce;

(E) developing and implementing a knowledge management strategy supported by appropriate investment in training and technology; and

(F) holding managers and human resources officers accountable for efficient and effective human resources management in support of agency missions in accordance with merit system principles.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 95–454, title II, § 201(a), Oct. 13, 1978, 92 Stat. 1119; Pub. L. 99–251, title III, §§ 301, 302, Feb. 27, 1986, 100 Stat. 26; Pub. L. 107–296, title XIII, § 1304, Nov. 25, 2002, 116 Stat. 2289.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 [Uncodified].1949 Reorg. Plan No. 5, §§ 1, 2(a) (35th through 46th words), 3, eff. Aug. 20, 1949, 63 Stat. 1067, 1069.
 5 U.S.C. 632 (5th par.).July 31, 1956, ch. 804, § 201(b), 70 Stat. 742.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2002—Subsec. (c). Pub. L. 107–296 added subsec. (c).
1986—Subsec. (a)(9). Pub. L. 99–251, § 301, added par. (9).
Subsec. (b)(4). Pub. L. 99–251, § 302, added par. (4).
1978—Pub. L. 95–454 substituted “Functions of the Director” for “Chairman; Vice Chairman; Executive Director” in section catchline, and in text provisions relating to the functions of the Director of the Office of Personnel Management for provisions relating to the Chairman, Vice Chairman, and Executive Director of the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 2002 AmendmentPub. L. 107–296, title XIII, § 1305, Nov. 25, 2002, 116 Stat. 2289, provided that: “This subtitle [subtitle A (§§ 1301–1305) of title XIII of Pub. L. 107–296, enacting chapter 14 of this title, amending this section, and enacting provisions set out as a note under section 1401 of this title] shall take effect 180 days after the date of enactment of this Act [Nov. 25, 2002].”

Effective Date of 1978 AmendmentAmendment 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.

§ 1104. Delegation of authority for personnel management(a) Subject to subsection (b)(3) of this section—(1) the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management; and

(2) the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including authority for competitive examinations (except competitive examinations for administrative law judges appointed under section 3105 of this title, the cost of which examinations shall be reimbursed by payments from the agencies employing such judges to the revolving fund established under section 1304(e)), to the heads of agencies in the executive branch and other agencies employing persons in the competitive service.

(b)(1) The Office shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section.

(2) The Office shall establish and maintain an oversight program to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system principles and the standards established under paragraph (1) of this subsection.

(3) Nothing in subsection (a) of this section shall be construed as affecting the responsibility of the Director to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations.

(4) At the request of the head of an agency to whom a function has been delegated under subsection (a)(2), the Office may provide assistance to the agency in performing such function. Such assistance shall, to the extent determined appropriate by the Director of the Office, be performed on a reimbursable basis through the revolving fund established under section 1304(e).

(c) If the Office makes a written finding, on the basis of information obtained under the program established under subsection (b)(2) of this section or otherwise, that any action taken by an agency pursuant to authority delegated under subsection (a)(2) of this section is contrary to any law, rule, or regulation, or is contrary to any standard established under subsection (b)(1) of this section, the agency involved shall take any corrective action the Office may require.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 399; Pub. L. 90–83, § 1(2), Sept. 11, 1967, 81 Stat. 195; Pub. L. 95–454, title II, § 201(a), Oct. 13, 1978, 92 Stat. 1120; Pub. L. 104–52, title IV, § 1, Nov. 19, 1995, 109 Stat. 489.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

 [Uncodified].1949 Reorg. Plan No. 5, § 2(a) (less 35th through 46th words), (b), eff. Aug. 20, 1949, 63 Stat. 1067.
 5 U.S.C. 3013(a) (1st sentence, less 10th through 24th words).Sept. 28, 1959, Pub. L. 86–382, § 14(a) (1st sentence, less 10th through 24th words), 73 Stat. 716.

In the first sentence, the word “officers” is omitted as included in “employees”.
Subsection (a)(1) is added on authority of the words “to secure accuracy, uniformity, and justice in all their proceedings” in the first sentence of former section 635, which is carried into section 1105. The function in this paragraph was transferred from the chief examiner to the Chairman of the United States Civil Service Commission by 1949 Reorg. Plan No. 5, § 2(a)(2).
In subsection (a)(4), the words “requests for appropriations” are substituted for “budget estimates” on authority of the Act of Sept. 12, 1950, ch. 946, § 102(f), 64 Stat. 833; 31 U.S.C. 22.
In subsection (b)(2), the word “prescription” is substituted for “promulgation” and the words “now vested in the Commission” are omitted as surplusage.
In subsection (b)(4), the words “as is now authorized to be taken by the Commission” are omitted as surplusage.
In subsection (b)(5), the words “civil service” are substituted for “Federal service”.
In subsection (b)(7), the words “submission of requests for appropriations” are substituted for “revision and submission . . . of budget estimates” on authority of the Act of Sept. 12, 1950, ch. 946, § 102(f), 64 Stat. 833; 31 U.S.C. 22.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5Source (U.S. Code)Source (Statutes at Large)

1104(a)(6)5:8713(a).[None.]
 [Uncodified].1965 Reorg. Plan No. 4, §§ 11(a), (e) (as applicable to (a)), 12 (as applicable to § 11(a)), 13 (as applicable to § 11(a)), eff. July 27, 1965, 79 Stat. 1322.

The paragraph added by this section is based on 5 U.S.C. 8713(a), and is restated to reflect the effect of sections 11–13 of 1965 Reorganization Plan No. 4, effective July 27, 1965.

Editorial Notes
Amendments1995—Subsec. (a). Pub. L. 104–52, § 1(1)(B), struck out closing provisions which read as follows: “except that the Director may not delegate authority for competitive examinations with respect to positions that have requirements which are common to agencies in the Federal Government, other than in exceptional cases in which the interests of economy and efficiency require such delegation and in which such delegation will not weaken the application of the merit system principles.”
Subsec. (a)(2). Pub. L. 104–52, § 1(1)(A), inserted “, the cost of which examinations shall be reimbursed by payments from the agencies employing such judges to the revolving fund established under section 1304(e)” after “title” and substituted period for semicolon at end.
Subsec. (b)(4). Pub. L. 104–52, § 1(2), added par. (4).
1978—Pub. L. 95–454 substituted “Delegation of authority for personnel management” for “Functions of Chairman” in section catchline, and in text provisions relating to the delegation of authority for personnel management for provisions relating to functions of the Chairman of the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1105. Administrative procedure
Subject to section 1103(b) of this title, in the exercise of the functions assigned under this chapter, the Director shall be subject to subsections (b), (c), and (d) of section 553 of this title, notwithstanding subsection (a) of such section 553.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 400; Pub. L. 95–454, title II, § 201(a), Oct. 13, 1978, 92 Stat. 1121.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 635 (less last 24 words of 6th sentence, and less 7th sentence).Jan. 16, 1883, ch. 27, § 3 (less last 24 words of 6th sentence, and less 7th sentence), 22 Stat. 404.
 [Uncodified].1949 Reorg. Plan No. 5, § 4, eff. Aug. 19, 1949, 63 Stat. 1069.

In subsection (a), the words “the District of Columbia” are substituted for “Washington”. The words “at least three individuals in the service of the United States” are substituted for a “a suitable number of persons, not less than three, in the official service of the United States”. So much of the first three sentences of former section 635 as related to the offices of the Chief Examiner and the Secretary are omitted because the offices were abolished by 1949 Reorg. Plan No. 5, § 4. So much of the first sentence as imposed a duty on the Chief Examiner, under the Commission’s direction, to act with the examining boards to secure accuracy, uniformity, and justice in all their proceedings is restated in section 1104(a)(1). The fourth sentence of former section 635, authorizing the Commission to employ a stenographer and a messenger, is omitted as obsolete. The remainder is rewritten for clarity. The text of 1949 Reorg. Plan No. 5, § 4, is omitted as executed.
In subsection (b), the words “Chairman, United States Civil Service Commission” are substituted for “chief examiner” on authority of 1949 Reorg. Plan No. 5, § 2(a)(2). The words “at all times” are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Administrative procedure” for “Boards of examiners” in section catchline, and in text provisions relating to administrative procedure applicable to administration of this chapter for provisions relating to boards of examiners for the United States Civil Service Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I—MERIT SYSTEMS PROTECTION BOARD

Sec.

1201.Appointment of members of the Merit Systems Protection Board.

1202.Term of office; filling vacancies; removal.

1203.Chairman; Vice Chairman.

1204.Powers and functions of the Merit Systems Protection Board.

1205.Transmittal of information to Congress.

1206.Annual report.

SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL

1211.Establishment.

1212.Powers and functions of the Office of Special Counsel.

1213.Provisions relating to disclosures of violations of law, mismanagement, and certain other matters.11 So in original. Does not conform to section catchline.

1214.Investigation of prohibited personnel practices; corrective action.

1215.Disciplinary action.

1216.Other matters within the jurisdiction of the Office of Special Counsel.

1217.Transmittal of information to Congress.

1218.Annual report.

1219.Public information.

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

1221.Individual right of action in certain reprisal cases.

1222.Availability of other remedies.

Editorial Notes
Amendments1989—Pub. L. 101–12, § 3(b)(2), (3), Apr. 10, 1989, 103 Stat. 31, substituted “, OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT OF ACTION” for “AND SPECIAL COUNSEL” in chapter heading, and amended chapter analysis generally, inserting subchapter I heading, and in item 1204 substituting “Powers and functions of the Merit Systems Protection Board” for “Special Counsel; appointment and removal”, in item 1205 substituting “Transmittal of information to Congress” for “Powers and functions of the Merit Systems Protection Board and Special Counsel”, in item 1206 substituting “Annual report” for “Authority and responsibilities of the Special Counsel”, omitting items 1207 “Hearings and decisions on complaints filed by the Special Counsel”, 1208 “Stays of certain personnel actions”, and 1209 “Information”, and inserting subchapters II and III headings and items 1211 to 1219, 1221, and 1222.

SUBCHAPTER I—MERIT SYSTEMS PROTECTION BOARD

Editorial Notes
Amendments1989—Pub. L. 101–12, § 3(b)(4), Apr. 10, 1989, 103 Stat. 31, inserted subchapter heading.

§ 1201. Appointment of members of the Merit Systems Protection Board
The Merit Systems Protection Board is composed of 3 members appointed by the President, by and with the advice and consent of the Senate, not more than 2 of whom may be adherents of the same political party. The members of the Board shall be individuals who, by demonstrated ability, background, training, or experience are especially qualified to carry out the functions of the Board. No member of the Board may hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President. The Board shall have an official seal which shall be judicially noticed. The Board shall have its principal office in the District of Columbia and may have field offices in other appropriate locations.
(Added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1121; amended Pub. L. 101–12, § 3(a)(1), Apr. 10, 1989, 103 Stat. 16.)

Editorial Notes
Amendments1989—Pub. L. 101–12 substituted “The members” for “The Chairman and members” in second sentence.

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentPub. L. 101–12, § 11, Apr. 10, 1989, 103 Stat. 35, provided that: “This Act and the amendments made by this Act [see Short Title of 1989 Amendment note below] shall take effect 90 days following the date of enactment of this Act [Apr. 10, 1989].”

Effective DateSubchapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

Short Title of 1989 AmendmentPub. L. 101–12, § 1, Apr. 10, 1989, 103 Stat. 16, provided that: “This Act [enacting subchapters II and III of this chapter and section 3352 of this title, amending this section and sections 1202 to 1206, 1209, 1211, 2302, 2303, 3393, 7502, 7512, 7521, 7542, 7701, and 7703 of this title and section 4139 of Title 22, Foreign Relations and Intercourse, repealing sections 1207 and 1208 of this title, and enacting provisions set out as notes under this section and sections 1211 and 5509 of this title] may be cited as the ‘Whistleblower Protection Act of 1989’.”

Savings ProvisionPub. L. 101–12, § 7, Apr. 10, 1989, 103 Stat. 34, provided that:
“(a) Orders, Rules, and Regulations.—All orders, rules, and regulations issued by the Merit Systems Protection Board or the Special Counsel before the effective date of this Act [see Effective Date of 1989 Amendment note above] shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed.

“(b) Administrative Proceedings.—No provision of this Act [see Short Title of 1989 Amendment note above] shall affect any administrative proceeding pending at the time such provisions take effect. Orders shall be issued in such proceedings, and appeals shall be taken therefrom, as if this Act had not been enacted.

“(c) Suits and Other Proceedings.—No suit, action, or other proceeding lawfully commenced by or against the members of the Merit Systems Protection Board, the Special Counsel, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act [see Effective Date of 1989 Amendment note above], shall abate by reason of the enactment of this Act. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted.”

Whistleblower Protection; Congressional Statement of Findings and PurposePub. L. 101–12, § 2, Apr. 10, 1989, 103 Stat. 16, provided that:
“(a) Findings.—The Congress finds that—“(1) Federal employees who make disclosures described in section 2302(b)(8) of title 5, United States Code, serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures;

“(2) protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service; and

“(3) in passing the Civil Service Reform Act of 1978 [Pub. L. 95–454, see Tables for classification], Congress established the Office of Special Counsel to protect whistleblowers (those individuals who make disclosures described in such section 2302(b)(8)) from reprisal.

“(b) Purpose.—The purpose of this Act [see Short Title of 1989 Amendment note above] is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by—“(1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and

“(2) establishing—“(A) that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices;

“(B) that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and

“(C) that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.”

Terms of Office of MembersPub. L. 95–454, title II, § 202(b), Oct. 13, 1978, 92 Stat. 1131, provided that: “Any term of office of any member of the Merit Systems Protection Board serving on the effective date of this Act [see Effective Date of 1978 Amendment note set out under section 1101 of this title] shall continue in effect until the term would expire under section 1102 of title 5, United States Code, as in effect immediately before the effective date of this Act, and upon expiration of the term, appointments to such office shall be made under sections 1201 and 1202 of title 5, United States Code (as added by this section).”

§ 1202. Term of office; filling vacancies; removal(a) The term of office of each member of the Merit Systems Protection Board is 7 years.

(b) A member appointed to fill a vacancy occurring before the end of a term of office of the member’s predecessor serves for the remainder of that term. Any appointment to fill a vacancy is subject to the requirements of section 1201. Any new member serving only a portion of a seven-year term in office may continue to serve until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire, unless reappointed.

(c) Any member appointed for a 7-year term may not be reappointed to any following term but may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire under this section.

(d) Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

(Added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1122; amended Pub. L. 100–202, § 101(m) [title VI, § 620], Dec. 22, 1987, 101 Stat. 1329–390, 1329–427; Pub. L. 101–12, § 3(a)(2), (3), Apr. 10, 1989, 103 Stat. 17.)

Editorial Notes
Amendments1989—Pub. L. 101–12, § 3(a)(2), substituted a semicolon for the comma after “office” in section catchline.
Subsec. (b). Pub. L. 101–12, § 3(a)(3), substituted “the member’s” for “his” in first sentence and struck out “of this title” after “section 1201” in second sentence.
1987—Subsec. (b). Pub. L. 100–202 inserted provision permitting any new member serving portion of seven-year term to continue serving until successor is appointed and has qualified, with exception limiting duration of such service.

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

§ 1203. Chairman; Vice Chairman(a) The President shall from time to time appoint, by and with the advice and consent of the Senate, one of the members of the Merit Systems Protection Board as the Chairman of the Board. The Chairman is the chief executive and administrative officer of the Board.

(b) The President shall from time to time designate one of the members of the Board as Vice Chairman of the Board. During the absence or disability of the Chairman, or when the office of Chairman is vacant, the Vice Chairman shall perform the functions vested in the Chairman.

(c) During the absence or disability of both the Chairman and the Vice Chairman, or when the offices of Chairman and Vice Chairman are vacant, the remaining Board member shall perform the functions vested in the Chairman.

(Added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1122; amended Pub. L. 101–12, § 3(a)(4), (5), Apr. 10, 1989, 103 Stat. 17.)

Editorial Notes
Amendments1989—Subsec. (a). Pub. L. 101–12, § 3(a)(4), struck out the comma after “time” in first sentence.
Subsec. (c). Pub. L. 101–12, § 3(a)(5), substituted “the Chairman and the Vice Chairman” for “the Chairman and Vice Chairman” after “both”.

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

§ 1204. Powers and functions of the Merit Systems Protection Board(a) The Merit Systems Protection Board shall—(1) hear, adjudicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the Board under this title, chapter 43 of title 38, or any other law, rule, or regulation, and, subject to otherwise applicable provisions of law, take final action on any such matter;

(2) order any Federal agency or employee to comply with any order or decision issued by the Board under the authority granted under paragraph (1) of this subsection and enforce compliance with any such order;

(3) conduct, from time to time, special studies relating to the civil service and to other merit systems in the executive branch, and report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected; and

(4) review, as provided in subsection (f), rules and regulations of the Office of Personnel Management.

(b)(1) Any member of the Merit Systems Protection Board, any administrative law judge appointed by the Board under section 3105 of this title, and any employee of the Board designated by the Board may administer oaths, examine witnesses, take depositions, and receive evidence.

(2) Any member of the Board, any administrative law judge appointed by the Board under section 3105, and any employee of the Board designated by the Board may, with respect to any individual—(A) issue subpoenas requiring the attendance and presentation of testimony of any such individual, and the production of documentary or other evidence from any place in the United States, any territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; and

(B) order the taking of depositions from, and responses to written interrogatories by, any such individual.

(3) Witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.

(c) In the case of contumacy or failure to obey a subpoena issued under subsection (b)(2)(A) or section 1214(b), upon application by the Board, the United States district court for the district in which the person to whom the subpoena is addressed resides or is served may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt thereof.

(d) A subpoena referred to in subsection (b)(2)(A) may, in the case of any individual outside the territorial jurisdiction of any court of the United States, be served in such manner as the Federal Rules of Civil Procedure prescribe for service of a subpoena in a foreign country. To the extent that the courts of the United States can assert jurisdiction over such individual, the United States District Court for the District of Columbia shall have the same jurisdiction to take any action respecting compliance under this subsection by such individual that such court would have if such individual were personally within the jurisdiction of such court.

(e)(1)(A) In any proceeding under subsection (a)(1), any member of the Board may request from the Director of the Office of Personnel Management an advisory opinion concerning the interpretation of any rule, regulation, or other policy directive promulgated by the Office of Personnel Management.

(B)(i) The Merit Systems Protection Board may, during an investigation by the Office of Special Counsel or during the pendency of any proceeding before the Board, issue any order which may be necessary to protect a witness or other individual from harassment, except that an agency (other than the Office of Special Counsel) may not request any such order with regard to an investigation by the Office of Special Counsel from the Board during such investigation.

(ii) An order issued under this subparagraph may be enforced in the same manner as provided for under paragraph (2) with respect to any order under subsection (a)(2).

(2)(A) In enforcing compliance with any order under subsection (a)(2), the Board may order that any employee charged with complying with such order, other than an employee appointed by the President by and with the advice and consent of the Senate, shall not be entitled to receive payment for service as an employee during any period that the order has not been complied with. The Board shall certify to the Comptroller General of the United States that such an order has been issued and no payment shall be made out of the Treasury of the United States for any service specified in such order.

(B) The Board shall prescribe regulations under which any employee who is aggrieved by the failure of any other employee to comply with an order of the Board may petition the Board to exercise its authority under subparagraph (A).

(3) In carrying out any study under subsection (a)(3), the Board shall make such inquiries as may be necessary and, unless otherwise prohibited by law, shall have access to personnel records or information collected by the Office of Personnel Management and may require additional reports from other agencies as needed.

(f)(1) At any time after the effective date of any rule or regulation issued by the Director of the Office of Personnel Management in carrying out functions under section 1103, the Board shall review any provision of such rule or regulation—(A) on its own motion;

(B) on the granting by the Board, in its sole discretion, of any petition for such review filed with the Board by any interested person, after consideration of the petition by the Board; or

(C) on the filing of a written complaint by the Special Counsel requesting such review.

(2) In reviewing any provision of any rule or regulation pursuant to this subsection, the Board shall declare such provision—(A) invalid on its face, if the Board determines that such provision would, if implemented by any agency, on its face, require any employee to violate section 2302(b); or

(B) invalidly implemented by any agency, if the Board determines that such provision, as it has been implemented by the agency through any personnel action taken by the agency or through any policy adopted by the agency in conformity with such provision, has required any employee to violate section 2302(b).

(3) The Director of the Office of Personnel Management, and the head of any agency implementing any provision of any rule or regulation under review pursuant to this subsection, shall have the right to participate in such review.

(4) The Board shall require any agency—(A) to cease compliance with any provisions of any rule or regulation which the Board declares under this subsection to be invalid on its face; and

(B) to correct any invalid implementation by the agency of any provision of any rule or regulation which the Board declares under this subsection to have been invalidly implemented by the agency.

(g) The Board may delegate the performance of any of its administrative functions under this title to any employee of the Board.

(h) The Board shall have the authority to prescribe such regulations as may be necessary for the performance of its functions. The Board shall not issue advisory opinions. All regulations of the Board shall be published in the Federal Register.

(i) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Chairman of the Board may appear for the Board, and represent the Board, in any civil action brought in connection with any function carried out by the Board pursuant to this title or as otherwise authorized by law.

(j) The Chairman of the Board may appoint such personnel as may be necessary to perform the functions of the Board. Any appointment made under this subsection shall comply with the provisions of this title, except that such appointment shall not be subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President (other than approval required under section 3324 or subchapter VIII of chapter 33).

(k) The Board shall prepare and submit to the President, and, at the same time, to the appropriate committees of Congress, an annual budget of the expenses and other items relating to the Board which shall, as revised, be included as a separate item in the budget required to be transmitted to the Congress under section 1105 of title 31.

(l) The Board shall submit to the President, and, at the same time, to each House of the Congress, any legislative recommendations of the Board relating to any of its functions under this title.

(m)(1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case arising under section 1215, may require payment by the agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency’s action was clearly without merit.

(2) If an employee or applicant for employment is the prevailing party of a case arising under section 1215 and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(k)).

(n) The Board may accept and use gifts and donations of property and services to carry out the duties of the Board.

(Added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1122, § 1205; amended Pub. L. 97–258, § 3(a)(2), Sept. 13, 1982, 96 Stat. 1063; renumbered § 1204 and amended Pub. L. 101–12, § 3(a)(7), Apr. 10, 1989, 103 Stat. 17; Pub. L. 102–568, title V, § 506(c)(4), Oct. 29, 1992, 106 Stat. 4341; Pub. L. 103–353, § 2(b)(2)(A), Oct. 13, 1994, 108 Stat. 3169; Pub. L. 103–424, § 2, Oct. 29, 1994, 108 Stat. 4361; Pub. L. 103–446, title XII, § 1203(c)(1), Nov. 2, 1994, 108 Stat. 4690; Pub. L. 112–199, title I, § 107(a), Nov. 27, 2012, 126 Stat. 1469; Pub. L. 113–76, div. E, title V, Jan. 17, 2014, 128 Stat. 217.)

Editorial Notes

References in TextThe Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Prior ProvisionsA prior section 1204 was renumbered section 1211(b) of this title by Pub. L. 101–12, § 3(a)(6). Pub. L. 102–378, § 2(3), Oct. 2, 1992, 106 Stat. 1346, struck out section catchline of prior section 1204.

Amendments2014—Subsec. (n). Pub. L. 113–76 added subsec. (n).
2012—Subsec. (m)(1). Pub. L. 112–199 substituted “agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case” for “agency involved”.
1994—Subsec. (a)(1). Pub. L. 103–446, which directed the amendment of par. (1) by substituting “section 4303” for “section 4323” could not be executed because the phrase “section 4323” does not appear in text subsequent to the intervening amendment by Pub. L. 103–353 substituting “chapter 43” for “section 4323”. See below.
Pub. L. 103–353 substituted “chapter 43” for “section 4323”.
Subsec. (m). Pub. L. 103–424 added subsec. (m).
1992—Subsec. (a)(1). Pub. L. 102–568 substituted “4323” for “2023”.
1989—Pub. L. 101–12, § 3(a)(7), renumbered section 1205 of this title as this section.
Pub. L. 101–12, § 3(a)(7)(A), struck out “and Special Counsel” after “Board” in section catchline.
Subsec. (a)(4). Pub. L. 101–12, § 3(a)(7)(A), (C), substituted “subsection (f)” for “subsection (e) of this section”.
Subsec. (b)(1). Pub. L. 101–12, § 3(a)(7)(A), struck out “the Special Counsel,” after “Board,”.
Subsec. (b)(2). Pub. L. 101–12, § 3(a)(7)(D), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “Any member of the Board, the Special Counsel, and any administrative law judge appointed by the Board under section 3105 of this title may—
“(A) issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States or any territory or possession thereof, the Commonwealth of Puerto Rico, or the District of Columbia; and
“(B) order the taking of depositions and order responses to written interrogatories.”
Subsec. (b)(3). Pub. L. 101–12, § 3(a)(7)(B), substituted “subpoena” for “subpena” and “subpoenaed” for “subpenaed”.
Subsec. (c). Pub. L. 101–12, § 3(a)(7)(B), (E), substituted “subpoena” for “subpena” in two places, “(b)(2)(A) or section 1214(b), upon application by the Board” for “(b)(2) of this section”, and “for the district” for “for the judicial district”.
Subsec. (d). Pub. L. 101–12, § 3(a)(7)(F), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 101–12, § 3(a)(7)(F), redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f).
Subsec. (e)(1). Pub. L. 101–12, § 3(a)(7)(A), (G)(i), designated existing provisions as subpar. (A), struck out “of this section” after “subsection (a)(1)”, and added subpar. (B).
Subsec. (e)(2). Pub. L. 101–12, § 3(a)(7)(G)(ii), designated existing provisions as subpar. (A), struck out “of this section” after “subsection (a)(2)”, and added subpar. (B).
Subsec. (e)(3). Pub. L. 101–12, § 3(a)(7)(A), (G)(iii), struck out “of this section” after “subsection (a)(3)” and inserted “of Personnel Management” after “Office”.
Subsec. (f). Pub. L. 101–12, § 3(a)(7)(F), redesignated former subsec. (e) as (f). Former subsec. (f) redesignated (g).
Subsec. (f)(1). Pub. L. 101–12, § 3(a)(7)(H)(i), inserted “of the Office of Personnel Management” after “Director” and struck out “of this title” after “section 1103”.
Subsec. (f)(2). Pub. L. 101–12, § 3(a)(7)(H)(ii), inserted comma after “subsection” and in subpars. (A) and (B) struck out “of this title” after “section 2302(b)”.
Subsec. (f)(3), (4). Pub. L. 101–12, § 3(a)(7)(H)(iii), struck out “(A)” before “The Director”, struck out subpar. (B) which provided that any review conducted by the Board be limited to determining the validity on its face of the provision under review and whether the provision under review has been validly implemented, and redesignated former subpar. (C) and cls. (i) and (ii) of former subpar. (C) as par. (4) and subpars. (A) and (B), respectively, of par. (4).
Subsecs. (g) to (i). Pub. L. 101–12, § 3(a)(7)(F), redesignated former subsecs. (f) to (h) as (g) to (i), respectively. Former subsec. (i) redesignated (j).
Subsec. (j). Pub. L. 101–12, § 3(a)(7)(F), (I), redesignated former subsec. (i) as (j) and substituted “chapter 33” for “chapter 33 of this title”. Former subsec. (j) redesignated (k).
Subsecs. (k), (l). Pub. L. 101–12, § 3(a)(7)(F), redesignated former subsecs. (j) and (k) as (k) and (l), respectively.
1982—Subsec. (j). Pub. L. 97–258 substituted “section 1105 of title 31” for “section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11)”.

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentPub. L. 112–199, title II, § 202, Nov. 27, 2012, 126 Stat. 1476, provided that: “Except as otherwise provided in section 109 [see Effective Date note set out under section 2304 of this title], this Act [see section 1 of Pub. L. 112–199, set out as a Short Title of 2012 Amendment note under section 101 of this title] shall take effect 30 days after the date of enactment of this Act [Nov. 27, 2012].”

Effective Date of 1994 AmendmentPub. L. 103–424, § 14, Oct. 29, 1994, 108 Stat. 4368, provided that: “The provisions of this Act [amending this section and sections 1211, 1212, 1214, 1218, 1221, 2105, 2302, 4313, 7121, and 8348 of this title, enacting provisions set out as notes under sections 1212 and 1214 of this title and section 1441a of Title 12, Banks and Banking, and amending provisions set out as a note under section 5509 of this title] and the amendments made by this Act shall be effective on and after the date of the enactment of this Act [Oct. 29, 1994].”

Amendment by Pub. L. 103–353 effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103–353, set out as an Effective Date note under section 4301 of Title 38, Veterans’ Benefits.

Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Termination of Reporting RequirementsFor termination, effective May 15, 2000, of reporting provisions in subsecs. (a)(3) and (l) of this section (formerly 5 U.S.C. 1205(a)(3) and (k)), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 176 of House Document No. 103–7.

§ 1205. Transmittal of information to Congress
Notwithstanding any other provision of law or any rule, regulation or policy directive, any member of the Board, or any employee of the Board designated by the Board, may transmit to the Congress on the request of any committee or subcommittee thereof, by report, testimony, or otherwise, information and views on functions, responsibilities, or other matters relating to the Board, without review, clearance, or approval by any other administrative authority.
(Added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1131, § 1209(a); renumbered § 1205 and amended Pub. L. 101–12, § 3(a)(9), Apr. 10, 1989, 103 Stat. 18.)

Editorial Notes
Prior ProvisionsA prior section 1205 was renumbered section 1204 of this title.

Amendments1989—Pub. L. 101–12 renumbered section 1209(a) of this title as this section and inserted section catchline.

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

§ 1206. Annual report
The Board shall submit an annual report to the President and the Congress on its activities, which shall include a description of significant actions taken by the Board to carry out its functions under this title. The report shall also review the significant actions of the Office of Personnel Management, including an analysis of whether the actions of the Office of Personnel Management are in accord with merit system principles and free from prohibited personnel practices.
(Added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1131, § 1209(b); renumbered § 1206 and amended Pub. L. 101–12, § 3(a)(10), Apr. 10, 1989, 103 Stat. 18.)

Editorial Notes
Prior ProvisionsA prior section 1206, added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1125, which related to authority and responsibilities of Special Counsel, was repealed by Pub. L. 101–12, §§ 3(a)(8), 11, Apr. 10, 1989, 103 Stat. 18, effective 90 days following Apr. 10, 1989. See section 1212 of this title.

Amendments1989—Pub. L. 101–12 renumbered section 1209(b) of this title as this section and inserted section catchline.

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Termination of Reporting RequirementsFor termination, effective May 15, 2000, of provisions in first sentence of this section relating to annual reports to Congress (formerly 5 U.S.C. 1209(b)), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 176 of House Document No. 103–7.

[§§ 1207, 1208. Repealed. Pub. L. 101–12, § 3(a)(8), Apr. 10, 1989, 103 Stat. 18]

Section 1207, added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1130, provided for hearings and decisions on complaints filed by Special Counsel. See section 1215(a)(2) to (5) of this title.

Section 1208, added Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1130, related to stays of certain personnel actions. See section 1214(b) of this title.

Statutory Notes and Related Subsidiaries
Effective Date of RepealRepeal of sections effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.

[§ 1209. Renumbered §§ 1205 and 1206]
Editorial Notes
Codification
Subsecs. (a) and (b) of this section were renumbered as sections 1205 and 1206, respectively, of this title by Pub. L. 101–12, § 3(a)(9), (10). Pub. L. 102–378, § 2(2), Oct. 2, 1992, 106 Stat. 1346, struck out section catchline of prior section 1209.

SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL
§ 1211. Establishment(a) There is established the Office of Special Counsel, which shall be headed by the Special Counsel. The Office shall have an official seal which shall be judicially noticed. The Office shall have its principal office in the District of Columbia and shall have field offices in other appropriate locations.

(b) The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.

(Added Pub. L. 101–12, § 3(a)(11), Apr. 10, 1989, 103 Stat. 19, § 1211(a), and Pub. L. 95–454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1122, § 1204; renumbered § 1211(b) and amended Pub. L. 101–12, § 3(a)(6), (12), Apr. 10, 1989, 103 Stat. 17, 19; Pub. L. 103–424, § 3(a), Oct. 29, 1994, 108 Stat. 4361.)

Editorial Notes
Amendments1994—Subsec. (b). Pub. L. 103–424 inserted after first sentence “The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection.”
1989—Subsec. (b). Pub. L. 101–12, § 3(a)(6), (12), renumbered section 1204 of this title as subsec. (b) of this section, substituted “Special Counsel shall be appointed by the President” for “Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys”, substituted “The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term.” for “A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of the term.”, and inserted at end “The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.”

Statutory Notes and Related Subsidiaries
Effective DateSubchapter effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Allegations of Wrongdoing Against Special Counsel or Deputy Special CounselPub. L. 110–409, § 7(b), Oct. 14, 2008, 122 Stat. 4312, which provided for review by the Integrity Committee of allegations of wrongdoing against the Special Counsel or the Deputy Special Counsel, was repealed by Pub. L. 114–317, § 7(a)(1), Dec. 16, 2016, 130 Stat. 1605. See section 11(d)(12) of Pub. L. 95–452, set out in the Appendix to this title.

Transfer of FundsPub. L. 101–12, § 8(c), Apr. 10, 1989, 103 Stat. 34, provided that: “The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available or to be made available to the Special Counsel of the Merit Systems Protection Board are, subject to section 1531 of title 31, United States Code, transferred to the Special Counsel referred to in section 1211 of title 5, United States Code (as added by section 3(a) of this Act), for appropriate allocation.”

§ 1212. Powers and functions of the Office of Special Counsel(a) The Office of Special Counsel shall—(1) in accordance with section 1214(a) and other applicable provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices;

(2) receive and investigate allegations of prohibited personnel practices, and, where appropriate—(A) bring petitions for stays, and petitions for corrective action, under section 1214; and

(B) file a complaint or make recommendations for disciplinary action under section 1215;

(3) receive, review, and, where appropriate, forward to the Attorney General or an agency head under section 1213, disclosures of violations of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(4) review rules and regulations issued by the Director of the Office of Personnel Management in carrying out functions under section 1103 and, where the Special Counsel finds that any such rule or regulation would, on its face or as implemented, require the commission of a prohibited personnel practice, file a written complaint with the Board; and

(5) investigate and, where appropriate, bring actions concerning allegations of violations of other laws within the jurisdiction of the Office of Special Counsel (as referred to in section 1216).

(b)(1) The Special Counsel and any employee of the Office of Special Counsel designated by the Special Counsel may administer oaths, examine witnesses, take depositions, and receive evidence.

(2) The Special Counsel may—(A) issue subpoenas; and

(B) order the taking of depositions and order responses to written interrogatories;

in the same manner as provided under section 1204.

(3)(A) In the case of contumacy or failure to obey a subpoena issued under paragraph (2)(A), the Special Counsel may apply to the Merit Systems Protection Board to enforce the subpoena in court pursuant to section 1204(c).

(B) A subpoena under paragraph (2)(A) may, in the case of any individual outside the territorial jurisdiction of any court of the United States, be served in the manner referred to in subsection (d) of section 1204, and the United States District Court for the District of Columbia may, with respect to any such individual, compel compliance in accordance with such subsection.

(4) Witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.

(5)(A) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to—(i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under—(I) section 1213, 1214, 1215, or 1216 of this title; or

(II) section 4324(a) of title 38;

(ii) request from any agency the information or assistance that may be necessary for the Special Counsel to carry out the duties and responsibilities of the Special Counsel under this subchapter; and

(iii) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under—(I) section 1213, 1214, 1215, or 1216 of this title; or

(II) section 4324(a) of title 38.

(B)(i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003), unless the Special Counsel is investigating, or otherwise carrying out activities relating to the enforcement of, an action under subchapter III of chapter 73.

(ii) An Inspector General may withhold from the Special Counsel material described in subparagraph (A) if the Inspector General determines that the material contains information derived from, or pertaining to, intelligence activities.

(iii) The Attorney General or an Inspector General may withhold from the Special Counsel material described in subparagraph (A) if—(I)(aa) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; or

(bb) the material—(AA) may not be disclosed pursuant to a court order; or

(BB) has been filed under seal under section 3730 of title 31; and

(II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes—(aa) the material being withheld; and

(bb) the reason that the material is being withheld.

(C)(i) A claim of common law privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described in subparagraph (A)(i) with respect to the agency.

(ii) The submission of material described in subparagraph (A)(i) by an agency to the Special Counsel may not be deemed to waive any assertion of privilege by the agency against a non-Federal entity or against an individual in any other proceeding.

(iii) With respect to any record or other information made available to the Special Counsel by an agency under subparagraph (A), the Special Counsel may only disclose the record or information for a purpose that is in furtherance of any authority provided to the Special Counsel under this subchapter.

(6) The Special Counsel shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the applicable agency a report regarding any case of contumacy or failure to comply with a request submitted by the Special Counsel under paragraph (5)(A).

(c)(1) Except as provided in paragraph (2), the Special Counsel may as a matter of right intervene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the rules of the Board.

(2) The Special Counsel may not intervene in an action brought by an individual under section 1221, or in an appeal brought by an individual under section 7701, without the consent of such individual.

(d)(1) The Special Counsel may appoint the legal, administrative, and support personnel necessary to perform the functions of the Special Counsel.

(2) Any appointment made under this subsection shall be made in accordance with the provisions of this title, except that such appointment shall not be subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President (other than approval required under section 3324 or subchapter VIII of chapter 33).

(e) The Special Counsel may prescribe such regulations as may be necessary to perform the functions of the Special Counsel. Such regulations shall be published in the Federal Register.

(f) The Special Counsel may not issue any advisory opinion concerning any law, rule, or regulation (other than an advisory opinion concerning chapter 15 or subchapter III of chapter 73).

(g)(1) The Special Counsel may not respond to any inquiry or disclose any information from or about any person making an allegation under section 1214(a), except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law.

(2) Notwithstanding the exception under paragraph (1), the Special Counsel may not respond to any inquiry concerning an evaluation of the work performance, ability, aptitude, general qualifications, character, loyalty, or suitability for any personnel action of any person described in paragraph (1)—(A) unless the consent of the individual as to whom the information pertains is obtained in advance; or

(B) except upon request of an agency which requires such information in order to make a determination concerning an individual’s having access to the information unauthorized disclosure of which could be expected to cause exceptionally grave damage to the national security.

(h)(1) The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related to section 2302(b)(8) or (9), or as otherwise authorized by law. In any such action, the Special Counsel is authorized to present the views of the Special Counsel with respect to compliance with section 2302(b)(8) or (9) and the impact court decisions would have on the enforcement of such provisions of law.

(2) A court of the United States shall grant the application of the Special Counsel to appear in any such action for the purposes described under subsection (a).

(i) The Special Counsel shall enter into at least 1 agreement with the Inspector General of an agency under which—(1) the Inspector General shall—(A) receive, review, and investigate allegations of prohibited personnel practices or wrongdoing filed by employees of the Office of Special Counsel; and

(B) develop a method for an employee of the Office of Special Counsel to communicate directly with the Inspector General; and

(2) the Special Counsel—(A) may not require an employee of the Office of Special Counsel to seek authorization or approval before directly contacting the Inspector General in accordance with the agreement; and

(B) may reimburse the Inspector General for services provided under the agreement.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 19; amended Pub. L. 103–424, § 3(b), Oct. 29, 1994, 108 Stat. 4362; Pub. L. 112–199, title I, § 113, Nov. 27, 2012, 126 Stat. 1472; Pub. L. 115–91, div. A, title X, § 1097(a), (g), Dec. 12, 2017, 131 Stat. 1615, 1623.)

Editorial Notes
Amendments2017—Subsec. (b)(5), (6). Pub. L. 115–91, § 1097(a), added pars. (5) and (6).
Subsec. (i). Pub. L. 115–91, § 1097(g), added subsec. (i).
2012—Subsec. (h). Pub. L. 112–199 added subsec. (h).
1994—Subsec. (g)(1). Pub. L. 103–424, § 3(b)(1) substituted “disclose any information from or about” for “provide information concerning”.
Subsec. (g)(2). Pub. L. 103–424, § 3(b)(2), substituted “an evaluation of the work performance, ability, aptitude, general qualifications, character, loyalty, or suitability for any personnel action of any” for “a matter described in subparagraph (A) or (B) of section 2302(b)(2) in connection with a”.

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective Date of 2012 AmendmentAmendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

RegulationsPub. L. 115–91, div. A, title X, § 1097(m), Dec. 12, 2017, 131 Stat. 1626, provided that:
“(1) In general.—Not later than 2 years after the date of enactment of this Act [Dec. 12, 2017], the Special Counsel shall prescribe such regulations as may be necessary to perform—“(A) the functions of the Special Counsel under subchapter II of chapter 12 of title 5, United States Code, including regulations that are necessary to carry out sections 1213, 1214, and 1215 of that title; and

“(B) any functions of the Special Counsel that are required because of the amendments made by this section [enacting section 7515 of this title, amending this section and sections 1212 to 1214, 1217 to 1219, 1221, 2302, 4301, 4302, 4313, 4505a, 5755, and 7326 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, repealing section 2307 of this title and former section 7515 of this title, enacting provisions set out as notes under this section and sections 4302, 5509, 7326, and 7503 of this title, and amending provisions set out as notes under this section and sections 2302 and 5509 of this title].

“(2) Publication.—Any regulations prescribed under paragraph (1) shall be published in the Federal Register.”

Suicide by EmployeesPub. L. 115–73, title I, § 105, Oct. 26, 2017, 131 Stat. 1238, as amended by Pub. L. 115–91, div. A, title X, § 1097(l), Dec. 12, 2017, 131 Stat. 1626, provided that:
“(a) Referral.—The head of an agency shall refer to the Special Counsel, along with any information known to the agency regarding the circumstances described in paragraphs (2) and (3), any instance in which the head of the agency has credible information indicating—“(1) an employee of the agency committed suicide;

“(2) prior to the death of the employee, the employee made any disclosure of information which reasonably evidences—“(A) any violation of any law, rule, or regulation; or

“(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

“(3) after a disclosure described in paragraph (2), a personnel action was taken against the employee.

“(b) Office of Special Counsel Review.—For any referral to the Special Counsel under subsection (a), the Special Counsel shall—“(1) examine whether any personnel action was taken because of any disclosure of information described in subsection (a)(2); and

“(2) take any action the Special Counsel determines appropriate under subchapter II of chapter 12 of title 5, United States Code.

“(c) Permission of Next of Kin.—The head of the agency shall only make a referral under subsection (a) regarding an employee after receiving written permission from the next of kin, as such term is defined in section 6381 of title 5, United States Code, of the employee.”

[For definitions of “agency”, “employee”, and “personnel action” as used in section 105 of Pub. L. 115–73, set out above, see section 101 of Pub. L. 115–73, set out below.]

Policy Statement Regarding Implementation of Whistleblower Protection ActPub. L. 103–424, § 12(a), Oct. 29, 1994, 108 Stat. 4366, provided that: “No later than 6 months after the date of enactment of this Act [Oct. 29, 1994], the Special Counsel shall issue a policy statement regarding the implementation of the Whistleblower Protection Act of 1989 [see Short Title of 1989 Amendment note set out under section 1201 of this title]. Such policy statement shall be made available to each person alleging a prohibited personnel practice described under section 2302(b)(8) of title 5, United States Code, and shall include detailed guidelines identifying specific categories of information that may (or may not) be communicated to agency officials for an investigative purpose, or for the purpose of obtaining corrective action under section 1214 of title 5, United States Code, or disciplinary action under section 1215 of such title, the circumstances under which such information is likely to be disclosed, and whether or not the consent of any person is required in advance of any such communication.”

Annual Survey of Individuals Seeking AssistancePub. L. 103–424, § 13, Oct. 29, 1994, 108 Stat. 4367, provided that:
“(a) In General.—The Office of Special Counsel shall, after consulting with the Office of Policy and Evaluation of the Merit Systems Protection Board, conduct an annual survey of all individuals who contact the Office of Special Counsel for assistance. The survey shall—“(1) determine if the individual seeking assistance was fully apprised of their rights;

“(2) determine whether the individual was successful either at the Office of Special Counsel or the Merit Systems Protection Board; and

“(3) determine if the individual, whether successful or not, was satisfied with the treatment received from the Office of Special Counsel.

“(b) Report.—The results of the survey conducted under subsection (a) shall be published in the annual report of the Office of Special Counsel.”

DefinitionsPub. L. 115–73, title I, § 101, Oct. 26, 2017, 131 Stat. 1235, provided that:
“In this title [enacting sections 2307 and 7515 of this title, amending sections 1214, 1221, 2302, 4505a, and 5755 of this title and sections 3657 and 3673 of Title 22, Foreign Relations and Intercourse, enacting provisions set out as notes under this section and section 2301 of this title, and amending provisions set out as a note under section 2302 of this title]—
“(1) the term ‘agency’—“(A) except as provided in subparagraph (B), means an entity that is an agency, as defined under section 2302 of title 5, United States Code, without regard to whether one or more portions of title 5 of the United States Code are inapplicable to the entity; and

“(B) does not include any entity that is an element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4));

“(2) the term ‘employee’ means an employee (as defined in section 2105 of title 5, United States Code) of an agency; and

“(3) the term ‘personnel action’ has the meaning given that term under section 2302 of title 5, United States Code.”

§ 1213. Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters(a) This section applies with respect to—(1) any disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences—(A) a violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; and

(2) any disclosure by an employee, former employee, or applicant for employment to the Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information which the employee, former employee, or applicant reasonably believes evidences—(A) a violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(b) Whenever the Special Counsel receives information of a type described in subsection (a) of this section, the Special Counsel shall review such information and, within 45 days after receiving the information, determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.

(c)(1) Subject to paragraph (2), if the Special Counsel makes a positive determination under subsection (b) of this section, the Special Counsel shall promptly transmit the information with respect to which the determination was made to the appropriate agency head and require that the agency head—(A) conduct an investigation with respect to the information and any related matters transmitted by the Special Counsel to the agency head; and

(B) submit a written report setting forth the findings of the agency head within 60 days after the date on which the information is transmitted to the agency head or within any longer period of time agreed to in writing by the Special Counsel.

(2) The Special Counsel may require an agency head to conduct an investigation and submit a written report under paragraph (1) only if the information was transmitted to the Special Counsel by—(A) an employee, former employee, or applicant for employment in the agency which the information concerns; or

(B) an employee who obtained the information in connection with the performance of the employee’s duties and responsibilities.

(d) Any report required under subsection (c) shall be reviewed and signed by the head of the agency and shall include—(1) a summary of the information with respect to which the investigation was initiated;

(2) a description of the conduct of the investigation;

(3) a summary of any evidence obtained from the investigation;

(4) a listing of any violation or apparent violation of any law, rule, or regulation; and

(5) a description of any action taken or planned as a result of the investigation, such as—(A) changes in agency rules, regulations, or practices;

(B) the restoration of any aggrieved employee;

(C) disciplinary action against any employee; and

(D) referral to the Attorney General of any evidence of a criminal violation.

(e)(1) Any report required under subsection (c) or paragraph (5) of this subsection shall be submitted to the Special Counsel, and the Special Counsel shall transmit a copy to the complainant, except as provided under subsection (f) of this section. The complainant may submit comments to the Special Counsel on the agency report within 15 days of having received a copy of the report.

(2) Upon receipt of any report that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether—(A) the findings of the head of the agency appear reasonable; and

(B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).

(3) The Special Counsel shall transmit any report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection, any comments provided by the complainant pursuant to subsection (e)(1), and any appropriate comments or recommendations by the Special Counsel to the President and the congressional committees with jurisdiction over the agency which the disclosure involves.

(4) Whenever the Special Counsel does not receive the report of the agency within the time prescribed in subsection (c)(2) of this section, the Special Counsel shall transmit a copy of the information which was transmitted to the agency head to the President and the congressional committees with jurisdiction over the agency which the disclosure involves together with a statement noting the failure of the head of the agency to file the required report.

(5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—(A) containing the additional information or documentation identified by the Special Counsel; and

(B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.

(f) In any case in which evidence of a criminal violation obtained by an agency in an investigation under subsection (c) of this section is referred to the Attorney General—(1) the report shall not be transmitted to the complainant; and

(2) the agency shall notify the Office of Personnel Management and the Office of Management and Budget of the referral.

(g)(1) If the Special Counsel receives information of a type described in subsection (a) from an individual other than an individual described in subparagraph (A) or (B) of subsection (c)(2), the Special Counsel may transmit the information to the head of the agency which the information concerns. The head of such agency shall, within a reasonable time after the information is transmitted, inform the Special Counsel in writing of what action has been or is being taken and when such action shall be completed. The Special Counsel shall inform the individual of the report of the agency head.

(2) If the Special Counsel receives information of a type described in subsection (a) from an individual described in subparagraph (A) or (B) of subsection (c)(2), but does not make a positive determination under subsection (b), the Special Counsel may transmit the information to the head of the agency which the information concerns, except that the information may not be transmitted to the head of the agency without the consent of the individual. The head of such agency shall, within a reasonable time after the information is transmitted, inform the Special Counsel in writing of what action has been or is being taken and when such action will be completed. The Special Counsel shall inform the individual of the report of the agency head.

(3) If the Special Counsel does not transmit the information to the head of the agency under paragraph (2), the Special Counsel shall inform the individual of—(A) the reasons why the disclosure may not be further acted on under this chapter; and

(B) other offices available for receiving disclosures, should the individual wish to pursue the matter further.

(h) The identity of any individual who makes a disclosure described in subsection (a) may not be disclosed by the Special Counsel without such individual’s consent unless the Special Counsel determines that the disclosure of the individual’s identity is necessary because of an imminent danger to public health or safety or imminent violation of any criminal law.

(i) Except as specifically authorized under this section, the provisions of this section shall not be considered to authorize disclosure of any information by any agency or any person which is—(1) specifically prohibited from disclosure by any other provision of law; or

(2) specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

(j) With respect to any disclosure of information described in subsection (a) which involves foreign intelligence or counterintelligence information, if the disclosure is specifically prohibited by law or by Executive order, the Special Counsel shall transmit such information to the National Security Advisor, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 21; amended Pub. L. 104–316, title I, § 103(a), Oct. 19, 1996, 110 Stat. 3828; Pub. L. 107–304, § 3, Nov. 27, 2002, 116 Stat. 2364; Pub. L. 115–91, div. A, title X, § 1097(c)(2), Dec. 12, 2017, 131 Stat. 1618.)

Editorial Notes
Amendments2017—Subsec. (b). Pub. L. 115–91, § 1097(c)(2)(A), substituted “45 days” for “15 days”.
Subsec. (e)(1). Pub. L. 115–91, § 1097(c)(2)(B)(i), substituted “Any report required under subsection (c) or paragraph (5) of this subsection” for “Any such report”.
Subsec. (e)(2). Pub. L. 115–91, § 1097(c)(2)(B)(ii), added par. (2) and struck out former par. (2) which related to review of any report of the head of an agency required under subsection (c).
Subsec. (e)(3). Pub. L. 115–91, § 1097(c)(2)(B)(iii), substituted “report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection” for “agency report received pursuant to subsection (c) of this section”.
Subsec. (e)(5). Pub. L. 115–91, § 1097(c)(2)(B)(iv), added par. (5).
2002—Subsec. (g)(1). Pub. L. 107–304, § 3(1), struck out at end “If the Special Counsel does not transmit the information to the head of the agency, the Special Counsel shall return any documents and other matter provided by the individual who made the disclosure.”
Subsec. (g)(3). Pub. L. 107–304, § 3(2), added par. (3) and struck out former par. (3) which read as follows: “If the Special Counsel does not transmit the information to the head of the agency under paragraph (2), the Special Counsel shall—
“(A) return any documents and other matter provided by the individual who made the disclosure; and
“(B) inform the individual of—
“(i) the reasons why the disclosure may not be further acted on under this chapter; and
“(ii) other offices available for receiving disclosures, should the individual wish to pursue the matter further.”
1996—Subsec. (e)(3). Pub. L. 104–316, § 103(a)(1), substituted “President and” for “President,” and struck out “, and the Comptroller General” before period at end.
Subsec. (e)(4). Pub. L. 104–316, § 103(a)(2), substituted “President and” for “President,” and struck out “, and the Comptroller General” before “together with a”.

§ 1214. Investigation of prohibited personnel practices; corrective action(a)(1)(A) The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.

(B) Within 15 days after the date of receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel shall provide written notice to the person who made the allegation that—(i) the allegation has been received by the Special Counsel; and

(ii) shall include the name of a person at the Office of Special Counsel who shall serve as a contact with the person making the allegation.

(C) Unless an investigation is terminated under paragraph (2), the Special Counsel shall—(i) within 90 days after notice is provided under subparagraph (B), notify the person who made the allegation of the status of the investigation and any action taken by the Office of the Special Counsel since the filing of the allegation;

(ii) notify such person of the status of the investigation and any action taken by the Office of the Special Counsel since the last notice, at least every 60 days after notice is given under clause (i); and

(iii) notify such person of the status of the investigation and any action taken by the Special Counsel at such time as determined appropriate by the Special Counsel.

(D) No later than 10 days before the Special Counsel terminates any investigation of a prohibited personnel practice, the Special Counsel shall provide a written status report to the person who made the allegation of the proposed findings of fact and legal conclusions. The person may submit written comments about the report to the Special Counsel. The Special Counsel shall not be required to provide a subsequent written status report under this subparagraph after the submission of such written comments.

(2)(A) If the Special Counsel terminates any investigation under paragraph (1), the Special Counsel shall prepare and transmit to any person on whose allegation the investigation was initiated a written statement notifying the person of—(i) the termination of the investigation;

(ii) a summary of relevant facts ascertained by the Special Counsel, including the facts that support, and the facts that do not support, the allegations of such person;

(iii) the reasons for terminating the investigation; and

(iv) a response to any comments submitted under paragraph (1)(D).

(B) A written statement under subparagraph (A) may not be admissible as evidence in any judicial or administrative proceeding, without the consent of the person who received such statement under subparagraph (A).

(3) Except in a case in which an employee, former employee, or applicant for employment has the right to appeal directly to the Merit Systems Protection Board under any law, rule, or regulation, any such employee, former employee, or applicant shall seek corrective action from the Special Counsel before seeking corrective action from the Board. An employee, former employee, or applicant for employment may seek corrective action from the Board under section 1221, if such employee, former employee, or applicant seeks corrective action for a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) from the Special Counsel and—(A)(i) the Special Counsel notifies such employee, former employee, or applicant that an investigation concerning such employee, former employee, or applicant has been terminated; and

(ii) no more than 60 days have elapsed since notification was provided to such employee, former employee, or applicant for employment that such investigation was terminated; or

(B) 120 days after seeking corrective action from the Special Counsel, such employee, former employee, or applicant has not been notified by the Special Counsel that the Special Counsel shall seek corrective action on behalf of such employee, former employee, or applicant.

(4) If an employee, former employee, or applicant seeks a corrective action from the Board under section 1221, pursuant to the provisions of paragraph (3)(B), the Special Counsel may continue to seek corrective action personal to such employee, former employee, or applicant only with the consent of such employee, former employee, or applicant.

(5) In addition to any authority granted under paragraph (1), the Special Counsel may, in the absence of an allegation, conduct an investigation for the purpose of determining whether there are reasonable grounds to believe that a prohibited personnel practice (or a pattern of prohibited personnel practices) has occurred, exists, or is to be taken.

(6)(A) Notwithstanding any other provision of this section, not later than 30 days after the date on which the Special Counsel receives an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry if the Special Counsel determines that—(i) the same allegation, based on the same set of facts and circumstances, had previously been—(I)(aa) made by the individual; and

(bb) investigated by the Special Counsel; or

(II) filed by the individual with the Merit Systems Protection Board;

(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or

(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.

(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.

(b)(1)(A)(i) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 45 days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice.

(ii) Any member of the Board requested by the Special Counsel to order a stay under clause (i) shall order such stay unless the member determines that, under the facts and circumstances involved, such a stay would not be appropriate.

(iii) Unless denied under clause (ii), any stay under this subparagraph shall be granted within 3 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the request for the stay by the Special Counsel.

(B)(i) The Board may extend the period of any stay granted under subparagraph (A) for any period which the Board considers appropriate.

(ii) If the Board lacks the number of members appointed under section 1201 required to constitute a quorum, any remaining member of the Board may, upon request by the Special Counsel, extend the period of any stay granted under subparagraph (A).

(C) The Board shall allow any agency which is the subject of a stay to comment to the Board on any extension of stay proposed under subparagraph (B).

(D) A stay may be terminated by the Board at any time, except that a stay may not be terminated by the Board—(i) on its own motion or on the motion of an agency, unless notice and opportunity for oral or written comments are first provided to the Special Counsel and the individual on whose behalf the stay was ordered; or

(ii) on motion of the Special Counsel, unless notice and opportunity for oral or written comments are first provided to the individual on whose behalf the stay was ordered.

(E) If the Board grants a stay under subparagraph (A), the head of the agency employing the employee who is the subject of the action shall give priority to a request for a transfer submitted by the employee.

(2)(A)(i) Except as provided under clause (ii), no later than 240 days after the date of receiving an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel shall make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.

(ii) If the Special Counsel is unable to make the required determination within the 240-day period specified under clause (i) and the person submitting the allegation of a prohibited personnel practice agrees to an extension of time, the determination shall be made within such additional period of time as shall be agreed upon between the Special Counsel and the person submitting the allegation.

(B) If, in connection with any investigation, the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, the Special Counsel shall report the determination together with any findings or recommendations to the Board, the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations to the President. The Special Counsel may include in the report recommendations for corrective action to be taken.

(C) If, after a reasonable period of time, the agency does not act to correct the prohibited personnel practice, the Special Counsel may petition the Board for corrective action.

(D) If the Special Counsel finds, in consultation with the individual subject to the prohibited personnel practice, that the agency has acted to correct the prohibited personnel practice, the Special Counsel shall file such finding with the Board, together with any written comments which the individual may provide.

(E) A determination by the Special Counsel under this paragraph shall not be cited or referred to in any proceeding under this paragraph or any other administrative or judicial proceeding for any purpose, without the consent of the person submitting the allegation of a prohibited personnel practice.

(3) Whenever the Special Counsel petitions the Board for corrective action, the Board shall provide an opportunity for—(A) oral or written comments by the Special Counsel, the agency involved, and the Office of Personnel Management; and

(B) written comments by any individual who alleges to be the subject of the prohibited personnel practice.

(4)(A) The Board shall order such corrective action as the Board considers appropriate, if the Board determines that the Special Counsel has demonstrated that a prohibited personnel practice, other than one described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), has occurred, exists, or is to be taken.

(B)(i) Subject to the provisions of clause (ii), in any case involving an alleged prohibited personnel practice as described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), the Board shall order such corrective action as the Board considers appropriate if the Special Counsel has demonstrated that a disclosure or protected activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the personnel action which was taken or is to be taken against the individual.

(ii) Corrective action under clause (i) may not be ordered if, after a finding that a protected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(c)(1) Judicial review of any final order or decision of the Board under this section may be obtained by any employee, former employee, or applicant for employment adversely affected by such order or decision.

(2) A petition for review under this subsection shall be filed with such court, and within such time, as provided for under section 7703(b).

(d)(1) If, in connection with any investigation under this subchapter, the Special Counsel determines that there is reasonable cause to believe that a criminal violation has occurred, the Special Counsel shall report the determination to the Attorney General and to the head of the agency involved, and shall submit a copy of the report to the Director of the Office of Personnel Management and the Director of the Office of Management and Budget.

(2) In any case in which the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken, the Special Counsel shall proceed with any investigation or proceeding unless—(A) the alleged violation has been reported to the Attorney General; and

(B) the Attorney General is pursuing an investigation, in which case the Special Counsel, after consultation with the Attorney General, has discretion as to whether to proceed.

(e) If, in connection with any investigation under this subchapter, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved. The Special Counsel shall require, within 30 days after the receipt of the report by the agency, a certification by the head of the agency which states—(1) that the head of the agency has personally reviewed the report; and

(2) what action has been or is to be taken, and when the action will be completed.

(f) During any investigation initiated under this subchapter, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.

(g) If the Board orders corrective action under this section, such corrective action may include—(1) that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred; and

(2) reimbursement for attorney’s fees, back pay and related benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).

(h) Any corrective action ordered under this section to correct a prohibited personnel practice may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.

(i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), without regard to whether a personnel action, as defined in section 2302(a)(2)(A), is taken.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 23; amended Pub. L. 103–424, §§ 3(c), (d), 8(a), Oct. 29, 1994, 108 Stat. 4362, 4364; Pub. L. 112–199, title I, §§ 101(b)(1)(A), (2)(A), 104(c)(1), 107(b), 114(a), Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L. 115–42, § 1, June 27, 2017, 131 Stat. 883; Pub. L. 115–73, title I, § 102(a), Oct. 26, 2017, 131 Stat. 1236; Pub. L. 115–91, div. A, title X, § 1097(c)(3)(A), (4), (f), (j), Dec. 12, 2017, 131 Stat. 1619, 1622, 1625.)

Editorial Notes
Amendments2017—Subsec. (a)(6). Pub. L. 115–91, § 1097(f), added par. (6).
Subsec. (b)(1)(B). Pub. L. 115–42 designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (b)(1)(B)(ii). Pub. L. 115–91, § 1097(j), struck out “who was appointed, by and with the advice and consent of the Senate,” after “member of the Board”.
Subsec. (b)(1)(E). Pub. L. 115–91, § 1097(c)(3)(A), added subpar. (E) and struck out former subpar. (E) which read as follows: “If the Merit Systems Protection Board grants a stay under this subsection, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.”
Pub. L. 115–73 added subpar. (E).
Subsec. (i). Pub. L. 115–91, § 1097(c)(4), added subsec. (i).
2012—Subsecs. (a)(3), (b)(4)(A). Pub. L. 112–199, § 101(b)(1)(A), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “section 2302(b)(8)”.
Subsec. (b)(4)(B)(i). Pub. L. 112–199, § 101(b)(1)(A), (2)(A), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “section 2302(b)(8)” in two places and inserted “or protected activity” after “disclosure”.
Subsec. (b)(4)(B)(ii). Pub. L. 112–199, § 114(a), inserted “, after a finding that a protected disclosure was a contributing factor,” after “ordered if”.
Subsec. (g)(2). Pub. L. 112–199, § 107(b), substituted “any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).” for “and any other reasonable and foreseeable consequential damages.”
Subsec. (h). Pub. L. 112–199, § 104(c)(1), added subsec. (h).
1994—Subsec. (a)(1)(D). Pub. L. 103–424, § 3(c)(1), added subpar. (D).
Subsec. (a)(2)(A)(iv). Pub. L. 103–424, § 3(c)(2), added cl. (iv).
Subsec. (b)(2). Pub. L. 103–424, § 3(d), added subpars. (A) and (E) and redesignated former subpars. (A) to (C) as (B) to (D), respectively.
Subsec. (g). Pub. L. 103–424, § 8(a), added subsec. (g).

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentAmendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Termination StatementPub. L. 103–424, § 12(b), Oct. 29, 1994, 108 Stat. 4367, provided that: “The Special Counsel shall include in any letter terminating an investigation under section 1214(a)(2) of title 5, United States Code, the name and telephone number of an employee of the Special Counsel who is available to respond to reasonable questions from the person regarding the investigation or review conducted by the Special Counsel, the relevant facts ascertained by the Special Counsel, and the law applicable to the person’s allegations.”

§ 1215. Disciplinary action(a)(1) Except as provided in subsection (b), if the Special Counsel determines that disciplinary action should be taken against any employee for having—(A) committed a prohibited personnel practice,

(B) violated the provisions of any law, rule, or regulation, or engaged in any other conduct within the jurisdiction of the Special Counsel as described in section 1216, or

(C) knowingly and willfully refused or failed to comply with an order of the Merit Systems Protection Board,

the Special Counsel shall prepare a written complaint against the employee containing the Special Counsel’s determination, together with a statement of supporting facts, and present the complaint and statement to the employee and the Board, in accordance with this subsection.

(2) Any employee against whom a complaint has been presented to the Merit Systems Protection Board under paragraph (1) is entitled to—(A) a reasonable time to answer orally and in writing, and to furnish affidavits and other documentary evidence in support of the answer;

(B) be represented by an attorney or other representative;

(C) a hearing before the Board or an administrative law judge appointed under section 3105 and designated by the Board;

(D) have a transcript kept of any hearing under subparagraph (C); and

(E) a written decision and reasons therefor at the earliest practicable date, including a copy of any final order imposing disciplinary action.

(3)(A) A final order of the Board may impose—(i) disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;

(ii) an assessment of a civil penalty not to exceed $1,000; or

(iii) any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii).

(B) In any case brought under paragraph (1) in which the Board finds that an employee has committed a prohibited personnel practice under section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D), the Board may impose disciplinary action if the Board finds that the activity protected under section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) was a significant motivating factor, even if other factors also motivated the decision, for the employee’s decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by a preponderance of the evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.

(4) There may be no administrative appeal from an order of the Board. An employee subject to a final order imposing disciplinary action under this subsection may obtain judicial review of the order by filing a petition therefor with such court, and within such time, as provided for under section 7703(b).

(5) In the case of any State or local officer or employee under chapter 15, the Board shall consider the case in accordance with the provisions of such chapter.

(b) In the case of an employee in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate (other than an individual in the Foreign Service of the United States), the complaint and statement referred to in subsection (a)(1), together with any response of the employee, shall be presented to the President for appropriate action in lieu of being presented under subsection (a).

(c)(1) In the case of members of the uniformed services and individuals employed by any person under contract with an agency to provide goods or services, the Special Counsel may transmit recommendations for disciplinary or other appropriate action (including the evidence on which such recommendations are based) to the head of the agency concerned.

(2) In any case in which the Special Counsel transmits recommendations to an agency head under paragraph (1), the agency head shall, within 60 days after receiving such recommendations, transmit a report to the Special Counsel on each recommendation and the action taken, or proposed to be taken, with respect to each such recommendation.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 27; amended Pub. L. 112–199, title I, § 106, Nov. 27, 2012, 126 Stat. 1468.)

Editorial Notes
Amendments2012—Subsec. (a)(3). Pub. L. 112–199 amended par. (3) generally. Prior to amendment, par. (3) read as follows: “A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.”

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentAmendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

§ 1216. Other matters within the jurisdiction of the Office of Special Counsel(a) In addition to the authority otherwise provided in this chapter, the Special Counsel shall, except as provided in subsection (b), conduct an investigation of any allegation concerning—(1) political activity prohibited under subchapter III of chapter 73, relating to political activities by Federal employees;

(2) political activity prohibited under chapter 15, relating to political activities by certain State and local officers and employees;

(3) arbitrary or capricious withholding of information prohibited under section 552, except that the Special Counsel shall make no investigation of any withholding of foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive order;

(4) activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decisionmaking; and

(5) involvement by any employee in any prohibited discrimination found by any court or appropriate administrative authority to have occurred in the course of any personnel action.

(b) The Special Counsel shall make no investigation of any allegation of any prohibited activity referred to in subsection (a)(5), if the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure.

(c) If the Special Counsel receives an allegation concerning any matter under paragraph (1), (3), (4), or (5) of subsection (a), the Special Counsel may investigate and seek corrective action under section 1214 and disciplinary action under section 1215 in the same way as if a prohibited personnel practice were involved.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 28; amended Pub. L. 103–94, § 3, Oct. 6, 1993, 107 Stat. 1004.)

Editorial Notes
Amendments1993—Subsec. (c). Pub. L. 103–94 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:
“(1) If an investigation by the Special Counsel under subsection (a)(1) substantiates an allegation relating to any activity prohibited under section 7324, the Special Counsel may petition the Merit Systems Protection Board for any penalties provided for under section 7325.
“(2) If the Special Counsel receives an allegation concerning any matter under paragraph (3), (4), or (5) of subsection (a), the Special Counsel may investigate and seek corrective action under section 1214 in the same way as if a prohibited personnel practice were involved.”

Statutory Notes and Related Subsidiaries
Effective Date of 1993 Amendment; Savings ProvisionAmendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

§ 1217. Transmittal of information to Congress(a) In General.—The Special Counsel or any employee of the Special Counsel designated by the Special Counsel, shall transmit to the Congress on the request of any committee or subcommittee thereof, by report, testimony, or otherwise, information and the Special Counsel’s views on functions, responsibilities, or other matters relating to the Office. Such information shall be transmitted concurrently to the President and any other appropriate agency in the executive branch.

(b) Additional Report Required.—(1) In general.—If an allegation submitted to the Special Counsel is resolved by an agreement between an agency and an individual, the Special Counsel shall submit to Congress and each congressional committee with jurisdiction over the agency a report regarding the agreement.

(2) Contents.—Any report required under paragraph (1) shall identify, with respect to an agreement described in that paragraph—(A) the agency that entered into the agreement;

(B) the position and employment location of the employee who submitted the allegation that formed the basis of the agreement, provided the information is not so specific as to be reasonably likely to identify the employee;

(C) the position and employment location of any employee alleged by an employee described in subparagraph (B) to have committed a prohibited personnel practice, as defined in section 2302(a)(1);

(D) a description of the allegation described in subparagraph (B); and

(E) whether the agency that entered into the agreement has agreed to pursue any disciplinary action as a result of the allegation described in subparagraph (B).

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 28; Pub. L. 115–91, div. A, title X, § 1097(h)(3), Dec. 12, 2017, 131 Stat. 1625.)

Editorial Notes
Amendments2017—Pub. L. 115–91 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

§ 1218. Annual report
The Special Counsel shall submit to Congress, on an annual basis, a report regarding the activities of the Special Counsel, which shall include, for the year preceding the submission of the report—(1) the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel and the costs of resolving such allegations;

(2) the number of investigations conducted by the Special Counsel;

(3) the number of stays and disciplinary actions negotiated with agencies by the Special Counsel;

(4) the number of subpoenas issued by the Special Counsel;

(5) the number of instances in which the Special Counsel reopened an investigation after the Special Counsel had made an initial determination with respect to the investigation;

(6) the actions that resulted from reopening investigations, as described in paragraph (5);

(7) the number of instances in which the Special Counsel did not make a determination before the end of the 240-day period described in section 1214(b)(2)(A)(i) regarding whether there were reasonable grounds to believe that a prohibited personnel practice had occurred, existed, or was to be taken;

(8) a description of the recommendations and reports made by the Special Counsel to other agencies under this subchapter and the actions taken by the agencies as a result of the recommendations or reports;

(9) the number of—(A) actions initiated before the Merit Systems Protection Board, including the number of corrective action petitions and disciplinary action complaints initiated; and

(B) stays and extensions of stays obtained from the Merit Systems Protection Board;

(10) the number of prohibited personnel practice complaints that resulted in a favorable action for the complainant, other than a stay or an extension of a stay, organized by actions in—(A) complaints dealing with reprisals against whistleblowers; and

(B) all other complaints;

(11) the number of prohibited personnel practice complaints that were resolved by an agreement between an agency and an individual, organized by agency and agency components in—(A) complaints dealing with reprisals against whistleblowers; and

(B) all other complaints;

(12) the number of corrective actions that the Special Counsel required an agency to take after a finding by the Special Counsel of a prohibited personnel practice, as defined in section 2302(a)(1); and

(13) the results for the Office of Special Counsel of any employee viewpoint survey conducted by the Office of Personnel Management or any other agency.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103–424, § 3(e), Oct. 29, 1994, 108 Stat. 4363; Pub. L. 115–91, div. A, title X, § 1097(h)(1), Dec. 12, 2017, 131 Stat. 1623.)

Editorial Notes
Amendments2017—Pub. L. 115–91 amended section generally. Prior to amendment, text read as follows: “The Special Counsel shall submit an annual report to the Congress on the activities of the Special Counsel, including the number, types, and disposition of allegations of prohibited personnel practices filed with it, investigations conducted by it, cases in which it did not make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period specified in section 1214(b)(2)(A)(i), and actions initiated by it before the Merit Systems Protection Board, as well as a description of the recommendations and reports made by it to other agencies pursuant to this subchapter, and the actions taken by the agencies as a result of the reports or recommendations. The report required by this section shall include whatever recommendations for legislation or other action by Congress the Special Counsel may consider appropriate.”
1994—Pub. L. 103–424 inserted “cases in which it did not make a determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period specified in section 1214(b)(2)(A)(i),” after “investigations conducted by it,”.

Statutory Notes and Related Subsidiaries
Termination of Reporting RequirementsFor termination, effective May 15, 2000, of reporting provisions in this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 188 of House Document No. 103–7.

§ 1219. Public information(a) The Special Counsel shall maintain and make available to the public—(1) a list of any noncriminal matters referred to the head of an agency under section 1213(c), together with—(A) a copy of the information transmitted to the head of the agency under section 1213(c)(1);

(B) any report from the agency under section 1213(c)(1)(B) relating to the matter;

(C) if appropriate, not otherwise prohibited by law, and consented to by the complainant, any comments from the complainant under section 1213(e)(1) relating to the matter; and

(D) the comments or recommendations of the Special Counsel under paragraph (3) or (4) of section 1213(e);

(2) a list of matters referred to heads of agencies under section 1215(c)(2);

(3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection; and

(4) reports from heads of agencies under section 1213(g)(1).

(b) The Special Counsel shall take steps to ensure that any list or report made available to the public under this section does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29; Pub. L. 115–91, div. A, title X, § 1097(h)(2), Dec. 12, 2017, 131 Stat. 1624.)

Editorial Notes
Amendments2017—Subsec. (a)(1). Pub. L. 115–91 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “a list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213, together with reports from heads of agencies under subsection (c)(1)(B) of such section relating to such matters;”.

SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
§ 1221. Individual right of action in certain reprisal cases(a) Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.

(b) This section may not be construed to prohibit any employee, former employee, or applicant for employment from seeking corrective action from the Merit Systems Protection Board before seeking corrective action from the Special Counsel, if such employee, former employee, or applicant for employment has the right to appeal directly to the Board under any law, rule, or regulation.

(c)(1) Any employee, former employee, or applicant for employment seeking corrective action under subsection (a) may request that the Board order a stay of the personnel action involved.

(2) Any stay requested under paragraph (1) shall be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that such a stay would be appropriate.

(3)(A) The Board shall allow any agency which would be subject to a stay under this subsection to comment to the Board on such stay request.

(B) Except as provided in subparagraph (C), a stay granted under this subsection shall remain in effect for such period as the Board determines to be appropriate.

(C) The Board may modify or dissolve a stay under this subsection at any time, if the Board determines that such a modification or dissolution is appropriate.

(d)(1) At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board shall issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that the testimony or production requested is not unduly burdensome and appears reasonably calculated to lead to the discovery of admissible evidence.

(2) A subpoena under this subsection may be issued, and shall be enforced, in the same manner as applies in the case of subpoenas under section 1204.

(e)(1) Subject to the provisions of paragraph (2), in any case involving an alleged prohibited personnel practice as described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), the Board shall order such corrective action as the Board considers appropriate if the employee, former employee, or applicant for employment has demonstrated that a disclosure or protected activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the personnel action which was taken or is to be taken against such employee, former employee, or applicant. The employee may demonstrate that the disclosure or protected activity was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—(A) the official taking the personnel action knew of the disclosure or protected activity; and

(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.

(2) Corrective action under paragraph (1) may not be ordered if, after a finding that a protected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(f)(1) A final order or decision shall be rendered by the Board as soon as practicable after the commencement of any proceeding under this section.

(2) A decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.

(3) If, based on evidence presented to it under this section, the Merit Systems Protection Board determines that there is reason to believe that a current employee may have committed a prohibited personnel practice, the Board shall refer the matter to the Special Counsel to investigate and take appropriate action under section 1215.

(g)(1)(A) If the Board orders corrective action under this section, such corrective action may include—(i) that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred; and

(ii) back pay and related benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).

(B) Corrective action shall include attorney’s fees and costs as provided for under paragraphs (2) and (3).

(2) If an employee, former employee, or applicant for employment is the prevailing party before the Merit Systems Protection Board, and the decision is based on a finding of a prohibited personnel practice, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney’s fees and any other reasonable costs incurred.

(3) If an employee, former emloyee,11 So in original. Probably should be “employee,”. or applicant for employment is the prevailing party in an appeal from the Merit Systems Protection Board, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney’s fees and any other reasonable costs incurred, regardless of the basis of the decision.

(4) Any corrective action ordered under this section to correct a prohibited personnel practice may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.

(h)(1) An employee, former employee, or applicant for employment adversely affected or aggrieved by a final order or decision of the Board under this section may obtain judicial review of the order or decision.

(2) A petition for review under this subsection shall be filed with such court, and within such time, as provided for under section 7703(b).

(i) Subsections (a) through (h) shall apply in any proceeding brought under section 7513(d) if, or to the extent that, a prohibited personnel practice as defined in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) is alleged.

(j) In determining the appealability of any case involving an allegation made by an individual under the provisions of this chapter, neither the status of an individual under any retirement system established under a Federal statute nor any election made by such individual under any such system may be taken into account.

(k) If the Board grants a stay under subsection (c) and the employee who is the subject of the action is in probationary status, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.

(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103–424, §§ 4, 8(b), Oct. 29, 1994, 108 Stat. 4363, 4365; Pub. L. 112–199, title I, §§ 101(b)(1)(A), (2)(A), 104(c)(2), 107(b), 114(b), Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L. 115–73, title I, § 102(b), Oct. 26, 2017, 131 Stat. 1236; Pub. L. 115–91, div. A, title X, § 1097(c)(3)(B), Dec. 12, 2017, 131 Stat. 1619.)

Editorial Notes
Amendments2017—Subsec. (k). Pub. L. 115–91 added subsec. (k) and struck out former subsec. (k) which read as follows: “If the Merit Systems Protection Board grants a stay to an employee in probationary status under subsection (c), the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.”
Pub. L. 115–73 added subsec. (k).
2012—Subsec. (a). Pub. L. 112–199, § 101(b)(1)(A), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “section 2302(b)(8)”.
Subsec. (e)(1). Pub. L. 112–199, § 101(b)(1)(A), (2)(A), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “section 2302(b)(8)” in two places and inserted “or protected activity” after “disclosure” wherever appearing.
Subsec. (e)(2). Pub. L. 112–199, § 114(b), inserted “, after a finding that a protected disclosure was a contributing factor,” after “ordered if”.
Subsec. (g)(1)(A)(ii). Pub. L. 112–199, § 107(b), substituted “any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).” for “and any other reasonable and foreseeable consequential changes.”
Subsec. (g)(4). Pub. L. 112–199, § 104(c)(2), added par. (4).
Subsec. (i). Pub. L. 112–199, § 101(b)(1)(A), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “section 2302(b)(8)”.
1994—Subsec. (d)(1). Pub. L. 103–424, § 4(a), added par. (1) and struck out former par. (1) which read as follows: “At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board may issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that such subpoena is necessary for the development of relevant evidence.”
Subsec. (e)(1). Pub. L. 103–424, § 4(b), which directed the amendment of section 1221(e)(1), without specifying the Code title to be amended, by inserting at end “The employee may demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—
“(A) the official taking the personnel action knew of the disclosure; and
“(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.”, was executed to subsec. (e)(1) of this section to reflect the probable intent of Congress.
Subsec. (f)(3). Pub. L. 103–424, § 4(c), added par. (3).
Subsec. (g). Pub. L. 103–424, § 8(b), added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively.

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentAmendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Effective DateSubchapter effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.

§ 1222. Availability of other remedies
Except as provided in section 1221(i), nothing in this chapter or chapter 23 shall be construed to limit any right or remedy available under a provision of statute which is outside of both this chapter and chapter 23.
(Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 31.)

CHAPTER 13—SPECIAL AUTHORITY

Sec.

1301.Rules.

1302.Regulations.

1303.Investigations; reports.

1304.Loyalty investigations; reports; revolving fund.

1305.Administrative law judges.

1306.Oaths to witnesses.

1307.Minutes.

[1308.Repealed.]

Editorial Notes
Amendments1998—Pub. L. 105–362, title XIII, § 1302(b)(2)(A), Nov. 10, 1998, 112 Stat. 3293, struck out item 1308 “Annual reports”.
1978—Pub. L. 95–251, § 2(c)(1), Mar. 27, 1978, 92 Stat. 183, substituted “Administrative law judges” for “Hearing examiners” in item 1305.

§ 1301. Rules
The Office of Personnel Management shall aid the President, as he may request, in preparing the rules he prescribes under this title for the administration of the competitive service.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 633(1) (function of Civil Service Commission).Jan. 16, 1883, ch. 27, § 2(1) (function of Civil Service Commission), 22 Stat. 403.

The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1302. Regulations(a) The Office of Personnel Management, subject to the rules prescribed by the President under this title for the administration of the competitive service, shall prescribe regulations for, control, supervise, and preserve the records of, examinations for the competitive service.

(b) The Office shall prescribe and enforce regulations for the administration of the provisions of this title, and Executive orders issued in furtherance thereof, that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment, and retention, in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia.

(c) The Office shall prescribe regulations for the administration of the provisions of this title that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment, and retention, in the excepted service in Executive agencies, permanent or temporary, and in the government of the District of Columbia.

(d) The Office may prescribe reasonable procedure and regulations for the administration of its functions under chapter 15 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 633(2)7 (last 17 words), (3) (less last 10 words).Jan. 16, 1883, ch. 27, §§ 2(2)7 (last 17 words), (3) (less last 10 words), 22 Stat. 404.
(b)5 U.S.C. 851 (1st 76 words), 868 (less proviso).June 27, 1944, ch. 287, §§ 2 (1st 76 words), 19, 58 Stat. 387, 391.
(c)5 U.S.C. 851 (1st 76 words), 860.June 27, 1944, ch. 287, §§ 2 (1st 76 words), 11, 58 Stat. 387, 390.
(d)5 U.S.C. 118k(d) (1st sentence).July 19, 1940, ch. 640 § 4 “Sec. 12(d) (1st sentence)”, 54 Stat. 769.

Subsection (a) is based on former section 633(3) (less last 10 words). The regulation-making power conferred by that section covers the power conferred by former section 633(2)7 (last 17 words) which is, therefore, omitted. The requirement of notice is preserved in section 3304. The words “through its members or the examiners” are omitted as unnecessary in view of section 1104. The authority of the President to prescribe rules, based on former section 633(1) is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.
In subsections (b)–(d), the word “rules” is omitted as included in “regulations”.
The provisions of the Veterans’ Preference Act of 1944 (former sections 851–869) to which the regulation-making authority of subsections (b) and (c) apply are carried into sections 2108, 3305(b), 3306(a)(2), 3308–3320, 3351, 3363, 3364, and 7701, subchapter I of chapter 35, and subchapter II of chapter 75 of this title. The first 76 words of former section 851 are added here to preserve the general statement of policy in the light of which the substantive provisions that formerly comprised the Veterans’ Preference Act of 1944 are to be interpreted. See Elder v. Brannan, 241 U.S. 277, 286. In subsection (b), the words “in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia”, and in subsection (c) the words “in the excepted service in Executive agencies, permanent or temporary, and in the government of the District of Columbia” are coextensive with and substituted for “in civilian positions in all establishments, agencies, bureaus, administrations, projects, and departments of the Government, permanent or temporary, and in either (a) the classified civil service; (b) the unclassified civil service; (c) any temporary or emergency establishment, agency, bureau, administration, project, and department created by Acts of Congress or Presidential Executive order”, in view of the exclusion of positions in the legislative and judicial branches by former section 869.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Subsecs. (a) to (d). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission” wherever appearing.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

Executive Documents

Executive Order No. 10561
Ex. Ord. No. 10561, Sept. 13, 1954, 19 F.R. 5963, which related to official personnel folders, was revoked by section 2–201 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out as a note under section 1101 of this title.

Executive Order No. 11397
Ex. Ord. No. 11397, Feb. 9, 1968, 33 F.R. 2833, formerly set out as a note under this section, which related to transitional appointments of veterans who served during the Vietnam Era, was revoked by Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, set out as a note under section 3302 of this title.

§ 1303. Investigations; reports
The Office of Personnel Management, Merit Systems Protection Board, and Special Counsel may investigate and report on matters concerning—(1) the enforcement and effect of the rules prescribed by the President under this title for the administration of the competitive service and the regulations prescribed by the Office of Personnel Management under section 1302(a) of this title; and

(2) the action of an examiner, a board of examiners, and other employees concerning the execution of the provisions of this title that relate to the administration of the competitive service.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, § 906(a)(4), (11), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 633(4).Jan. 16, 1883, ch. 27, § 2(4), 22 Stat. 404.

The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title.
In paragraph (2), the words “in respect to the execution of this act” are changed to “concerning the execution of the provisions of this title that relate to the administration of the competitive service” to avoid having to refer in the text to the sections of this title into which the Civil Service Act, the act referred to, is codified. These sections are: 1101, 1102, 1105, 1302(a), 1303, 1307, 1308(a)(1), 2102, 2951, 3302, 3303, 3304(a), (d), 3305(a), 3306, 3318(a), 3319(a), 3321, 7152, 7153, 7321, 7322, and 7352. The words “the provisions of this title that relate to the administration of the competitive service” will include some of the sections derived from the Veterans’ Preference Act of 1944 (former sections 851–869). They are based in part on former section 860 (codified in § 1302(c)). The authorization in that section to make and enforce regulations for the competitive service would include the authority to investigate and report. The words “and other employees” are substituted for “and its own subordinates, and those in the public service” in view of the definition of “employee” in section 2105.
Standard changes are made to conform with the definition applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted in opening par. “Office of Personnel Management, Merit Systems Protection Board, and Special Counsel” for “Civil Service Commission” and in par. (1) “Office of Personnel Management” for “Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1304. Loyalty investigations; reports; revolving fund(a) The Office of Personnel Management shall conduct the investigations and issue the reports required by the following statutes—(1) sections 272b, 281b(e), and 290a of title 22;

(2) section 1874(c) of title 42; and

(3) section 1203(e) of title 6, District of Columbia Code.

(b) When an investigation under subsection (a) of this section develops data indicating that the loyalty of the individual being investigated is questionable, the Office shall refer the matter to the Federal Bureau of Investigation for a full field investigation, a report of which shall be furnished to the Office for its information and appropriate action.

(c) When the President considers it in the national interest, he may have the investigations of a group or class, which are required by subsection (a) of this section, made by the Federal Bureau of Investigation rather than the Office.

(d) The investigation and report required by subsection (a) of this section shall be made by the Federal Bureau of Investigation rather than the Office for those specific positions which the Secretary of State certifies are of a high degree of importance or sensitivity.

(e)(1) A revolving fund is available, to the Office without fiscal year limitation, for financing investigations, training, and such other functions as the Office is authorized or required to perform on a reimbursable basis, including personnel management services performed at the request of individual agencies (which would otherwise be the responsibility of such agencies), or at the request of nonappropriated fund instrumentalities, and for the cost of audits, investigations, and oversight activities, conducted by the Inspector General of the Office, of the fund and the activities financed by the fund. However, the functions which may be financed in any fiscal year by the fund are restricted to those functions which are covered by the budget estimates submitted to the Congress for that fiscal year. To the maximum extent feasible, each individual activity shall be conducted generally on an actual cost basis over a reasonable period of time.

(2) The capital of the fund consists of the aggregate of—(A) appropriations made to provide capital for the fund, which appropriations are hereby authorized, and

(B) the sum of the fair and reasonable value of such supplies, equipment, and other assets as the Office from time to time transfers to the fund (including the amount of the unexpended balances of appropriations or funds relating to activities the financing of which is transferred to the fund) less the amount of related liabilities, the amount of unpaid obligations, and the value of accrued annual leave of employees, which are attributable to the activities the financing of which is transferred to the fund.

(3) The fund shall be credited with—(A) advances and reimbursements from available funds of the Office or other agencies, or from other sources, for those services and supplies provided at rates estimated by the Office as adequate to recover expenses of operation (including provision for accrued annual leave of employees and depreciation of equipment); and

(B) receipts from sales or exchanges of property, and payments for loss of or damage to property, accounted for under the fund.

(4) Any unobligated and unexpended balances in the fund which the Office determines to be in excess of amounts needed for activities financed by the fund shall be deposited in the Treasury of the United States as miscellaneous receipts.

(5)(A) The Office shall prepare a business-type budget providing full disclosure of the results of operations for each of the functions performed by the Office and financed by the fund, and such budget shall be transmitted to the Congress and considered, in the manner prescribed by law for wholly owned Government corporations.

(B) Such budget shall include an estimate from the Inspector General of the Office of the amount required to pay the expenses to audit, investigate, and provide other oversight activities with respect to the fund and the activities financed by the fund.

(C) The amount requested by the Inspector General under subparagraph (B) shall not exceed .33 percent of the total budgetary authority requested by the Office under subparagraph (A).

(6) The Comptroller General of the United States shall, as a result of his periodic reviews of the activities financed by the fund, report and make such recommendations as he deems appropriate to the Committee on Governmental Affairs of the Senate and the Committee on Post Office and Civil Service of the House of Representatives.

(f) An agency may use available appropriations to reimburse the Office or the Federal Bureau of Investigation for the cost of investigations, training, and functions performed for them under this section, or to make advances toward their cost. These advances and reimbursements shall be credited directly to the applicable appropriations of the Office or the Federal Bureau of Investigation.

(g) This section does not affect the responsibility of the Federal Bureau of Investigation to investigate espionage, sabotage, or subversive acts.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 91–189, § 1, Dec. 30, 1969, 83 Stat. 851; Pub. L. 91–648, title V, § 510, Jan. 5, 1971, 84 Stat. 1928; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–60, title II, § 203(a)(2), Aug. 15, 1979, 93 Stat. 398; Pub. L. 97–412, § 1(a), Jan. 3, 1983, 96 Stat. 2047; Pub. L. 98–224, § 5(b)(1), Mar. 2, 1984, 98 Stat. 48; Pub. L. 103–437, § 3(a), Nov. 2, 1994, 108 Stat. 4581; Pub. L. 104–66, title II, § 2182, Dec. 21, 1995, 109 Stat. 732; Pub. L. 104–208, div. A, title I, § 101(f) [title IV, § 421], Sept. 30, 1996, 110 Stat. 3009–314, 3009–343; Pub. L. 113–80, § 2, Feb. 12, 2014, 128 Stat. 1006.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(b)–(d)5 U.S.C. 655.Apr. 5, 1952, ch. 159, § 1 (provisos), 66 Stat. 44.July 31, 1953, ch. 283, § 9, 67 Stat. 241.
(e)5 U.S.C. 657.June 5, 1952, ch. 369, § 701 (par. under “Civil Service Commission”), 66 Stat. 107.
(f)[Uncodified].Apr. 5, 1952, ch. 159, § 4, 66 Stat. 44.
(g)5 U.S.C. 656.Apr. 5, 1952, ch. 159, § 3, 66 Stat. 44.

Subsection (a) is based on section 1 of the Act of April 5, 1952, as amended, and is added for clarity. In subsection (a), the reference to section 10(b)(5)(B)(i) and (B)(ii) of the Act of August 1, 1946 (60 Stat. 766) is omitted because of the amendment of the Act of April 5, 1952, by the Act of July 31, 1953, ch. 283, 67 Stat. 240, and the reenactment of the provisions of the Act of April 5, 1952, insofar as they relate to the Atomic Energy Commission as section 145 of the Atomic Energy Act of 1954 (68 Stat. 942; 42 U.S.C. 2165). The references to section 1(2) of the Act of May 22, 1947 (61 Stat. 125), section 1 of the joint resolution of May 21, 1947 (61 Stat. 125), and section 110(c) of the Act of April 3, 1948 (62 Stat. 137) are omitted as these Acts were repealed by the Act of Aug. 26, 1954, ch. 937 § 542(a) (1), (2), and (4), 68 Stat. 861. Reference to section 510 of the Mutual Security Act of 1951 (65 Stat. 381) is omitted because this section was replaced by section 531 of the Mutual Security Act of 1954 (68 Stat. 859) and the latter was repealed by the Act of Sept. 4, 1961, Pub. L. 87–195, § 642(2), 75 Stat. 460.
In subsection (d), the references to section 10(b)(5)(B)(i) and (ii) of the Atomic Energy Act of 1946, section 510 of the Mutual Security Act of 1951, a majority of the members of the Atomic Energy Commission, and the Director of Mutual Security (which was changed to Director of the International Cooperation Administration on authority of section 8 of 1953 Reorg. Plan No. 7, 67 Stat. 641, and Executive Order 10610 of May 9, 1955) are omitted because of the disposition of the two sections as explained with reference to subsection (a).
In subsection (e), the words “There is established” are omitted as executed.
In subsection (g), the reference to statutes other than this section is omitted because nothing in those statutes affect the responsibility in question.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextSection 1874(c) of title 42, referred to in subsec. (a)(2), which related to clearance of National Science Foundation personnel, was repealed by Pub. L. 96–516, § 21(b)(1), Dec. 12, 1980, 94 Stat. 3010.

Amendments2014—Subsec. (e)(1). Pub. L. 113–80, § 2(1), inserted “, and for the cost of audits, investigations, and oversight activities, conducted by the Inspector General of the Office, of the fund and the activities financed by the fund” before period at end of first sentence.
Subsec. (e)(5). Pub. L. 113–80, § 2(2), designated existing provisions as subpar. (A) and added subpars. (B) and (C).
1996—Subsec. (e)(1). Pub. L. 104–208 inserted “, including personnel management services performed at the request of individual agencies (which would otherwise be the responsibility of such agencies), or at the request of nonappropriated fund instrumentalities” before period at end of first sentence.
1995—Subsec. (e)(6). Pub. L. 104–66 struck out before period at end “at least once every three years”.
1994—Subsec. (e)(6). Pub. L. 103–437 substituted “Committee on Governmental Affairs of the Senate and the Committee on Post Office and Civil Service of the House” for “Committees on Post Office and Civil Service of the Senate and House”.
1984—Subsec. (e)(1). Pub. L. 98–224 struck out cl. (i) designation and struck out cl. (ii) which provided that participation fees imposed by the President’s Commission on Executive Exchange for private sector participation in its Executive Exchange Program be collected and credited to the fund, and be available for the costs of education and related travel of exchanged executives, for printing without regard to section 501 of title 44, and, in such amounts as specified in appropriations Acts, for entertainment expenses. See section 4109(d) of this title.
1983—Subsec. (e)(1). Pub. L. 97–412 designated existing provisions as cl. (i) and added cl. (ii).
1979—Subsec. (a)(1). Pub. L. 96–60 struck out reference to section 1434 of title 22.
1978—Subsecs. (a) to (f). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission” wherever appearing.
1971—Subsec. (e). Pub. L. 91–648 struck out in par. (1) “of $4,000,000” after “revolving fund” and inserted in par. (2)(A) “, which appropriations are hereby authorized”.
1969—Subsec. (e). Pub. L. 91–189, § 1(a), increased the scope of reimbursable services for which the fund may be used, restricted reimbursement to services which were included in the budget estimates submitted to Congress for that fiscal year, inserted a list of components which comprise the fund, specifically listed those items that would be credited directly to the capital fund, required that a budget be prepared by the Commission, and directed the Comptroller General as a result of the activities financed to make recommendations to the committees on Post Office and Civil Service of the Senate and House of Representatives at least once every three years.
Subsec. (f). Pub. L. 91–189, § 1(b), authorized an agency to use available appropriations to reimburse the Commission or the Federal Bureau of Investigation for the cost of training and functions performed.

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Effective Date of 1983 AmendmentPub. L. 97–412, § 1(b), Jan. 3, 1983, 96 Stat. 2047, provided that: “The authority granted in subsection (a) [amending this section] shall terminate on December 31, 1983.”

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–60 effective Oct. 1, 1979, see section 209 of Pub. L. 96–60, set out as a note under section 1471 of Title 22, Foreign Relations and Intercourse.

Effective Date of 1978 AmendmentAmendment 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.

Abolition of House Committee on Post Office and Civil Service
Committee on Post Office and Civil Service of House of Representatives abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. References to Committee on Post Office and Civil Service treated as referring to Committee on Government Reform and Oversight, see section 1(b) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

§ 1305. Administrative law judges
For the purpose of sections 3105, 3344, 4301(2)(D), and 5372 of this title and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, the Office of Personnel Management may, and for the purpose of section 7521 of this title, the Merit Systems Protection Board may investigate, prescribe regulations, appoint advisory committees as necessary, recommend legislation, subpena witnesses and records, and pay witness fees as established for the courts of the United States.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 90–83, § 1(3), Sept. 11, 1967, 81 Stat. 196; Pub. L. 95–251, § 2(a)(1), (b)(1), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title VIII, § 801(a)(3)(B)(iii), title IX, § 906(a)(12), Oct. 13, 1978, 92 Stat. 1221, 1225; Pub. L. 102–378, § 2(4), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 105–362, title XIII, § 1302(a), Nov. 10, 1998, 112 Stat. 3293.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1010 (5th sentence).June 11, 1946, ch. 324, § 11 (5th sentence), 60 Stat. 244.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ActThis section amends 5 U.S.C. 1305 to correct a typographical error.

Editorial Notes
Amendments1998—Pub. L. 105–362 struck out “require reports by agencies, issue reports, including an annual report to Congress,” after “may investigate,”.
1992—Pub. L. 102–378 substituted “sections 3105” for “section 3105”.
1978—Pub. L. 95–454 substituted provisions respecting functions pursuant to specified sections of this title of the Office of Personnel Management and the Merit Systems Protection Board for provisions respecting the functions pursuant to specified sections of this title of the Civil Service Commission.
Pub. L. 95–251 substituted “Administrative law judges” for “Hearing examiners” in section catchline and “administrative law judges” for “hearing examiners” in text.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment by section 801(a)(3)(B)(iii) of Pub. L. 95–454 substituting “5372” for “5362” effective on first day of first applicable pay period beginning on or after the 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.
Amendment by section 906(a)(12) of Pub. L. 95–454 respecting functions of the Office and the Board 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.

Effective Date of 1967 AmendmentAmendment by Pub. L. 90–83 effective as of Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

Termination of Advisory CommitteesAdvisory committees in existence on Jan. 5, 1973, excluding committees composed wholly of full-time officers or employees of the Federal Government, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to this title.

§ 1306. Oaths to witnesses
The Director of the Office of Personnel Management and authorized representatives of the Director may administer oaths to witnesses in matters pending before the Office.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 95–454, title IX, § 906(a)(13), Oct. 13, 1978, 92 Stat. 1226.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 634.Aug. 23, 1912, ch. 350, § 1 (last par. under “Civil Service Commission”), 37 Stat. 372.
 [Uncodified].1949 Reorg. Plan No. 5, § 2(c), eff. Aug. 19, 1949, 63 Stat. 1069.

The section is rewritten to reflect expansion of authority of the Commission to include its Chairman under section 2(c) of 1949 Reorg. Plan No. 5.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted provisions respecting powers of the Director of the Office of Personnel Management in administering oaths in matters before the Office for provisions respecting powers of the Chairman of the Civil Service Commission and each Commissioner in administering oaths in matters before the Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1307. Minutes
The Civil Service Commission shall keep minutes of its proceedings.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 633(3) (last 10 words).Jan. 16, 1883, ch. 27, § 2(3) (last 10 words), 22 Stat. 404.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Executive Documents

Transfer of Functions
Functions vested by statute in United States Civil Service Commission transferred to Director of Office of Personnel Management (except as otherwise specified) by Reorg. Plan No. 2 of 1978, § 102, 43 F.R. 36037, 92 Stat. 3783, set out under section 1101 of this title, effective Jan. 1, 1979, as provided by section 1–102 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under section 1101 of this title.

[§ 1308. Repealed. Pub. L. 105–362, title XIII, § 1302(b)(1), Nov. 10, 1998, 112 Stat. 3293]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 402; Pub. L. 91–93, title I, § 104, Oct. 20, 1969, 83 Stat. 138; Pub. L. 93–156, Nov. 21, 1973, 87 Stat. 623; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(3), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–470, title I, § 121, Oct. 19, 1980, 94 Stat. 2241, required annual reports on operation of subchapter III of chapter 83 of this title and chapters 87 and 89 of this title.

CHAPTER 14—AGENCY CHIEF HUMAN CAPITAL OFFICERS

Sec.

1401.Establishment of agency Chief Human Capital Officers.

1402.Authority and functions of agency Chief Human Capital Officers.

§ 1401. Establishment of agency Chief Human Capital Officers
The head of each agency referred to under paragraphs (1) and (2) of section 901(b) of title 31 shall appoint or designate a Chief Human Capital Officer, who shall—(1) advise and assist the head of the agency and other agency officials in carrying out the agency’s responsibilities for selecting, developing, training, and managing a high-quality, productive workforce in accordance with merit system principles;

(2) implement the rules and regulations of the President and the Office of Personnel Management and the laws governing the civil service within the agency; and

(3) carry out such functions as the primary duty of the Chief Human Capital Officer.

(Added Pub. L. 107–296, title XIII, § 1302(a), Nov. 25, 2002, 116 Stat. 2287.)

Statutory Notes and Related Subsidiaries
Effective DateChapter effective 180 days after Nov. 25, 2002, see section 1305 of Pub. L. 107–296, set out as an Effective Date of 2002 Amendment note under section 1103 of this title.

Chief Human Capital Officers CouncilPub. L. 107–296, title XIII, § 1303, Nov. 25, 2002, 116 Stat. 2288, provided that:
“(a) Establishment.—There is established a Chief Human Capital Officers Council, consisting of—“(1) the Director of the Office of Personnel Management, who shall act as chairperson of the Council;

“(2) the Deputy Director for Management of the Office of Management and Budget, who shall act as vice chairperson of the Council; and

“(3) the Chief Human Capital Officers of Executive departments and any other members who are designated by the Director of the Office of Personnel Management.

“(b) Functions.—The Chief Human Capital Officers Council shall meet periodically to advise and coordinate the activities of the agencies of its members on such matters as modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations.

“(c) Employee Labor Organizations at Meetings.—The Chief Human Capital Officers Council shall ensure that representatives of Federal employee labor organizations are present at a minimum of 1 meeting of the Council each year. Such representatives shall not be members of the Council.

“(d) Annual Report.—Each year the Chief Human Capital Officers Council shall submit a report to Congress on the activities of the Council.”

§ 1402. Authority and functions of agency Chief Human Capital Officers(a) The functions of each Chief Human Capital Officer shall include—(1) setting the workforce development strategy of the agency;

(2) assessing workforce characteristics and future needs based on the agency’s mission and strategic plan;

(3) aligning the agency’s human resources policies and programs with organization mission, strategic goals, and performance outcomes;

(4) developing and advocating a culture of continuous learning to attract and retain employees with superior abilities;

(5) identifying best practices and benchmarking studies,11 So in original. The comma probably should be a semicolon. and

(6) applying methods for measuring intellectual capital and identifying links of that capital to organizational performance and growth.

(b) In addition to the authority otherwise provided by this section, each agency Chief Human Capital Officer—(1) shall have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material that—(A) are the property of the agency or are available to the agency; and

(B) relate to programs and operations with respect to which that agency Chief Human Capital Officer has responsibilities under this chapter; and

(2) may request such information or assistance as may be necessary for carrying out the duties and responsibilities provided by this chapter from any Federal, State, or local governmental entity.

(Added Pub. L. 107–296, title XIII, § 1302(a), Nov. 25, 2002, 116 Stat. 2288.)

CHAPTER 15—POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES

Sec.

1501.Definitions.

1502.Influencing elections; taking part in political campaigns; prohibitions; exceptions.

1503.Nonpartisan candidacies permitted.

1504.Investigations; notice of hearing.

1505.Hearings; adjudications; notice of determinations.

1506.Orders; withholding loans or grants; limitations.

1507.Subpenas and depositions.

1508.Judicial review.

Editorial Notes
Amendments1974—Pub. L. 93–443, title IV, § 401(b)(2), Oct. 15, 1974, 88 Stat. 1290, substituted “candidacies” for “political activity” in item 1503.

§ 1501. Definitions
For the purpose of this chapter—(1) “State” means a State or territory or possession of the United States;

(2) “State or local agency” means the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof, or the executive branch of the District of Columbia, or an agency or department thereof;

(3) “Federal agency” means an Executive agency or other agency of the United States, but does not include a member bank of the Federal Reserve System; and

(4) “State or local officer or employee” means an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, but does not include—(A) an individual who exercises no functions in connection with that activity; or

(B) an individual employed by an educational or research institution, establishment, agency, or system which is supported in whole or in part by—(i) a State or political subdivision thereof;

(ii) the District of Columbia; or

(iii) a recognized religious, philanthropic, or cultural organization.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 403; Pub. L. 93–443, title IV, § 401(c), Oct. 15, 1974, 88 Stat. 1290; Pub. L. 112–230, § 3(a), (b), Dec. 28, 2012, 126 Stat. 1616.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(1)5 U.S.C. 118k–2.July 19, 1940, ch. 640, § 4 “Sec. 19”, 54 Stat. 772.
(2), (3)5 U.S.C. 118k(f).July 19, 1940, ch. 640, § 4 “Sec. 12(f)”, 54 Stat. 770.
(4)5 U.S.C. 118k(a) (1st 41 words), (e).July 19, 1940, ch. 640, § 4 “Sec 12(a) (1st 41 words), (e)”, 54 Stat. 767, 770.
 5 U.S.C. 118k–1 (as applicable to 5 U.S.C. 118k).Oct. 24, 1942, ch. 620 “Sec. 21 (as applicable to § 12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, § 4, 54 Stat. 767)”, 56 Stat. 986.
(5)5 U.S.C. 118l (as applicable to 5 U.S.C. 118k).July 19, 1940, ch. 640, § 4 “Sec. 15 (as applicable to § 12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, § 4, 54 Stat. 767)”, 54 Stat. 771.

In paragraph (4)(B), the words “or by any Territory or Territorial possession of the United States” are omitted in view of the definition of “State” in paragraph (1).
In paragraph (5), the words “July 19, 1940” are substituted for “at the time this section takes effect”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2012—Par. (2). Pub. L. 112–230, § 3(a), inserted “, or the executive branch of the District of Columbia, or an agency or department thereof” before semicolon at end.
Par. (4)(B). Pub. L. 112–230, § 3(b), added subpar. (B) and struck out former subpar. (B) which read as follows: “an individual employed by an educational or research institution, establishment, agency, or system which is supported in whole or in part by a State or political subdivision thereof, or by a recognized religious, philanthropic, or cultural organization.”
1974—Par. (5). Pub. L. 93–443 struck out par. (5) which defined “an active part in political management or in political campaigns”.

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentPub. L. 112–230, § 5(a), Dec. 28, 2012, 126 Stat. 1617, provided that: This Act [see Short Title of 2012 Amendment note set out under section 101 of this title] and the amendments made by this Act shall take effect 30 days after the date of enactment of this Act [Dec. 28, 2012].”

Effective Date of 1974 AmendmentAmendment by Pub. L. 93–443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 30101 of Title 52, Voting and Elections.

§ 1502. Influencing elections; taking part in political campaigns; prohibitions; exceptions(a) A State or local officer or employee may not—(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;

(2) directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or

(3) if the salary of the employee is paid completely, directly or indirectly, by loans or grants made by the United States or a Federal agency, be a candidate for elective office.

(b) A State or local officer or employee retains the right to vote as he chooses and to express his opinions on political subjects and candidates.

(c) Subsection (a)(3) of this section does not apply to—(1) the Governor or Lieutenant Governor of a State or an individual authorized by law to act as Governor;

(2) the mayor of a city;

(3) a duly elected head of an executive department of a State, municipality, or the District of Columbia who is not classified under a State, municipal, or the District of Columbia merit or civil-service system; or

(4) an individual holding elective office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 404; Pub. L. 93–443, title IV, § 401(a), Oct. 15, 1974, 88 Stat. 1290; Pub. L. 112–230, §§ 2, 3(c), Dec. 28, 2012, 126 Stat. 1616.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118k(a) (less 1st 41 words).July 19, 1940, ch. 640, § 4 “Sec. 12(a) (less 1st 41 words)”, 54 Stat. 767.

In subsection (a), the term “State or local officer or employee”, defined in section 1501, is substituted for the first 41 words of former section 118k(a). The words “any part of his salary or compensation” are omitted as included in “anything of value”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2012—Subsec. (a)(3). Pub. L. 112–230, § 2, amended par. (3) generally. Prior to amendment, par. (3) read as follows: “be a candidate for elective office.”
Subsec. (c)(3). Pub. L. 112–230, § 3(c), which directed the substitution of “, municipality, or the District of Columbia’ ” for “ ‘or municipality” and “, municipal, or the District of Columbia’ ” for “ ‘or municipal”, was executed by substituting “, municipality, or the District of Columbia” for “or municipality” and “, municipal, or the District of Columbia” for “or municipal”, to reflect the probable intent of Congress.
1974—Subsec. (a)(3). Pub. L. 93–443 substituted “be a candidate for elective office” for “take an active part in political management or in political campaigns”.

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentAmendment by Pub. L. 112–230 effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as a note under section 1501 of this title.

Effective Date of 1974 AmendmentAmendment by Pub. L. 93–443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 30101 of Title 52, Voting and Elections.

§ 1503. Nonpartisan candidacies permitted
Section 1502(a)(3) of this title does not prohibit any State or local officer or employee from being a candidate in any election if none of the candidates is to be nominated or elected at such election as representing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 404; Pub. L. 93–443, title IV, § 401(b)(1), Oct. 15, 1974, 88 Stat. 1290.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118n (as applicable to 5 U.S.C. 118k(a)).July 19, 1940, ch. 640, § 4 “Sec. 18 (as applicable to § 12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, § 4, 54 Stat. 767)”, 54 Stat. 772.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1974—Pub. L. 93–443 substituted “candidacies” for “political activity” in section catchline and provision permitting nonpartisan candidacies for prior provision permitting political activity in connection with (1) an election and the preceding campaign if none of the candidates was to be nominated or elected at that election as representing a party any of whose candidates for presidential elector received votes in the last preceding election at which presidential electors were selected, or (2) a question which was not specifically identified with a National or State political party and deeming questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character as not specifically identified with a National or State political party.

Statutory Notes and Related Subsidiaries
Effective Date of 1974 AmendmentAmendment by Pub. L. 93–443 effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as a note under section 30101 of Title 52, Voting and Elections.

§ 1504. Investigations; notice of hearing
When a Federal agency charged with the duty of making a loan or grant of funds of the United States for use in an activity by a State or local officer or employee has reason to believe that the officer or employee has violated section 1502 of this title, it shall report the matter to the Special Counsel. On receipt of the report or on receipt of other information which seems to the Special Counsel to warrant an investigation, the Special Counsel shall investigate the report and such other information and present his findings and any charges based on such findings to the Merit Systems Protection Board, which shall—(1) fix a time and place for a hearing; and

(2) send, by registered or certified mail, to the officer or employee charged with the violation and to the State or local agency employing him a notice setting forth a summary of the alleged violation and giving the time and place of the hearing.

The hearing may not be held earlier than 10 days after the mailing of the notice.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, § 906(a)(7), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118k(b) (1st and 2d sentences, and 4th through 17th words of 3d sentence).July 19, 1940, ch. 640 § 4 “Sec. 12(b) (1st and 2d sentences, and 4th through 17th words of 3d sentence)”, 54 Stat. 768.June 11, 1960, Pub. L. 86–507, § 1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted provisions respecting the functions of the Special Counsel and the Merit Systems Protection Board for provisions respecting the functions of the Civil Service Commission.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1505. Hearings; adjudications; notice of determinations
Either the State or local officer or employee or the State or local agency employing him, or both, are entitled to appear with counsel at the hearing under section 1504 of this title, and be heard. After this hearing, the Merit Systems Protection Board shall—(1) determine whether a violation of section 1502 of this title has occurred;

(2) determine whether the violation warrants the removal of the officer or employee from his office or employment; and

(3) notify the officer or employee and the agency of the determination by registered or certified mail.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, § 906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118k(b) (3d sentence, less 4th, through 17th words, and 4th sentence).July 19, 1940, ch. 640, § 4 “Sec. 12(b) (3d sentence, less 4th through 17th words, and 4th sentence)”, 54 Stat. 768.June 11, 1960, Pub. L. 86–507, § 1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Merit Systems Protection Board” for “Civil Service Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1506. Orders; withholding loans or grants; limitations(a) When the Merit Systems Protection Board finds—(1) that a State or local officer or employee has not been removed from his office or employment within 30 days after notice of a determination by the Board that he has violated section 1502 of this title and that the violation warrants removal; or

(2) that the State or local officer or employee has been removed and has been appointed within 18 months after his removal to an office or employment in the same State (or in the case of the District of Columbia, in the District of Columbia) in a State or local agency which does not receive loans or grants from a Federal agency;

the Board shall make and certify to the appropriate Federal agency an order requiring that agency to withhold from its loans or grants to the State or local agency to which notice was given an amount equal to 2 years’ pay at the rate the officer or employee was receiving at the time of the violation. When the State or local agency to which appointment within 18 months after removal has been made is one that receives loans or grants from a Federal agency, the Board order shall direct that the withholding be made from that State or local agency.

(b) Notice of the order shall be sent by registered or certified mail to the State or local agency from which the amount is ordered to be withheld. After the order becomes final, the Federal agency to which the order is certified shall withhold the amount in accordance with the terms of the order. Except as provided by section 1508 of this title, a determination or order of the Board becomes final at the end of 30 days after mailing the notice of the determination or order.

(c) The Board may not require an amount to be withheld from a loan or grant pledged by a State or local agency as security for its bonds or notes if the withholding of that amount would jeopardize the payment of the principal or interest on the bonds or notes.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 405; Pub. L. 95–454, title IX, § 906(a)(6), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 112–230, § 3(d), Dec. 28, 2012, 126 Stat. 1616.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118k(b) (less 1st 4 sentences).July 19, 1940, ch. 640, § 4 “Sec. 12(b) (less 1st 4 sentences)”, 54 Stat. 768.June 11, 1960, Pub. L. 86–507, § 1(1), 74 Stat. 200.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2012—Subsec. (a)(2). Pub. L. 112–230 inserted “(or in the case of the District of Columbia, in the District of Columbia)” after “the same State”.
1978—Subsec. (a). Pub. L. 95–454 substituted “Merit Systems Protection Board” for “Civil Service Commission” and “Board” for “Commission”, respectively, wherever appearing.
Subsecs. (b), (c). Pub. L. 95–454 substituted “Board” for “Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 2012 AmendmentAmendment by Pub. L. 112–230 effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as a note under section 1501 of this title.

Effective Date of 1978 AmendmentAmendment 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.

§ 1507. Subpenas and depositions(a) The Merit Systems Protection Board may require by subpena the attendance and testimony of witnesses and the production of documentary evidence relating to any matter before it as a result of this chapter. Any member of the Board may sign subpenas, and members of the Board and its examiners when authorized by the Board may administer oaths, examine witnesses, and receive evidence. The attendance of witnesses and the production of documentary evidence may be required from any place in the United States at the designated place of hearing. In case of disobedience to a subpena, the Board may invoke the aid of a court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. In case of contumacy or refusal to obey a subpena issued to a person, the United States District Court within whose jurisdiction the inquiry is carried on may issue an order requiring him to appear before the Board, or to produce documentary evidence if so ordered, or to give evidence concerning the matter in question; and any failure to obey the order of the court may be punished by the court as a contempt thereof.

(b) The Board may order testimony to be taken by deposition at any stage of a proceeding or investigation before it as a result of this chapter. Depositions may be taken before an individual designated by the Board and having the power to administer oaths. Testimony shall be reduced to writing by the individual taking the deposition, or under his direction, and shall be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence before the Board as provided by this section.

(c) A person may not be excused from attending and testifying or from producing documentary evidence or in obedience to a subpena on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify, or produce evidence, documentary or otherwise, before the Board in obedience to a subpena issued by it. A person so testifying is not exempt from prosecution and punishment for perjury committed in so testifying.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 406; Pub. L. 95–454, title IX, § 906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118k(d) (less 1st sentence).July 19, 1940, ch. 640, § 4 “Sec. 12(d) (less 1st sentence)”, 54 Stat. 769.

In subsection (a), the word “affirmation” is omitted as included in “oath” on authority of section 1 of title 1, United States Code. The title of the court is changed to conform to title 28.
In subsection (c), the prohibition is restated in positive form.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Subsec. (a). Pub. L. 95–454 substituted “Merit Systems Protection Board” and “Board” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.
Subsecs. (b), (c). Pub. L. 95–454 substituted “Board” for “Commission” wherever appearing.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 1508. Judicial review
A party aggrieved by a determination or order of the Merit Systems Protection Board under section 1504, 1505, or 1506 of this title may, within 30 days after the mailing of notice of the determination or order, institute proceedings for review thereof by filing a petition in the United States District Court for the district in which the State or local officer or employee resides. The institution of the proceedings does not operate as a stay of the determination or order unless—(1) the court specifically orders a stay; and

(2) the officer or employee is suspended from his office or employment while the proceedings are pending.

A copy of the petition shall immediately be served on the Board, and thereupon the Board shall certify and file in the court a transcript of the record on which the determination or order was made. The court shall review the entire record including questions of fact and questions of law. If application is made to the court for leave to adduce additional evidence, and it is shown to the satisfaction of the court that the additional evidence may materially affect the result of the proceedings and that there were reasonable grounds for failure to adduce this evidence in the hearing before the Board, the court may direct that the additional evidence be taken before the Board in the manner and on the terms and conditions fixed by the court. The Board may modify its findings of fact or its determination or order in view of the additional evidence and shall file with the court the modified findings, determination, or order; and the modified findings of fact, if supported by substantial evidence, are conclusive. The court shall affirm the determination or order, or the modified determination or order, if the court determines that it is in accordance with law. If the court determines that the determination or order, or the modified determination or order, is not in accordance with law, the court shall remand the proceeding to the Board with directions either to make a determination or order determined by the court to be lawful or to take such further proceedings as, in the opinion of the court, the law requires. The judgment and decree of the court are final, subject to review by the appropriate United States Court of Appeals as in other cases, and the judgment and decree of the court of appeals are final, subject to review by the Supreme Court of the United States on certiorari or certification as provided by section 1254 of title 28. If a provision of this section is held to be invalid as applied to a party by a determination or order of the Board, the determination or order becomes final and effective as to that party as if the provision had not been enacted.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 406; Pub. L. 95–454, title IX, § 906(a)(6), Oct. 13, 1978, 92 Stat. 1225.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118k(c).July 19, 1940, ch. 640, § 4 “Sec. 12(c)”, 54 Stat. 768.

Sections 346 and 347 of title 28 referred to in former section 118k(c) were repealed by the Act of June 25, 1948, ch. 646, § 39, 62 Stat. 862, and are now covered by section 1254 of title 28. The titles of the courts are changed to conform to title 28.
In the reference to filing a written petition, “written” is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Merit Systems Protection Board” and “Board” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

PART III—EMPLOYEES

Subpart A—General Provisions

Chap.

Sec.

21.Definitions2101

23.Merit System Principles2301

29.Commissions, Oaths, Records, and Reports2901

Subpart B—Employment and Retention

31.Authority for Employment3101

33.Examination, Selection, and Placement3301

34.Part-Time Career Employment Opportunities3401

35.Retention Preference, Restoration, and Reemployment 11 Chapter heading amended by Pub. L. 107–296 without corresponding amendment of part analysis.3501

37.Information Technology Exchange Program3701

Subpart C—Employee Performance

41.Training4101

43.Performance Appraisal4301

45.Incentive Awards4501

47.Personnel Research Programs and Demonstration Projects4701

48.Agency Personnel Demonstration Project4801

Subpart D—Pay and Allowances

51.Classification5101

53.Pay Rates and Systems5301

54.Human Capital Performance Fund5401

55.Pay Administration5501

57.Travel, Transportation, and Subsistence5701

59.Allowances5901

Subpart E—Attendance and Leave

61.Hours of Work6101

63.Leave6301

65.Telework6501

Subpart F—Labor-Management and Employee Relations

71.Labor-Management Relations7101

72.Antidiscrimination; Right to Petition Congress7201

73.Suitability, Security, and Conduct7301

75.Adverse Actions7501

77.Appeals7701

79.Services to Employees7901

Subpart G—Insurance and Annuities

81.Compensation for Work Injuries8101

83.Retirement8301

84.Federal Employees’ Retirement System8401

85.Unemployment Compensation8501

87.Life Insurance8701

89.Health Insurance8901

89A.Enhanced Dental Benefits8951

89B.Enhanced Vision Benefits8981

90.Long-Term Care Insurance9001

Subpart H—Access to Criminal History Record Information

91.Access to Criminal History Records for National Security and Other Purposes9101

92.Prohibition on criminal 22 So in original. Probably should be capitalized. history 2 inquiries 2 prior 2 to conditional 2 offer 29201

Subpart I—Miscellaneous

95.Personnel flexibilities 2 relating 2 to the Internal Revenue Service9501

96.Personnel flexibilities 2 relating 2 to land 2 management 2 agencies 29601

97.Department of Homeland Security9701

98.National Aeronautics and Space Administration9801

99.Department of Defense Personnel Authorities9901

101.Federal Emergency Management Agency Personnel10101

102.United States Secret Service Uniformed Division Personnel10201

Subpart J—Enhanced Personnel Security Programs

110.Enhanced personnel 2 security 2 programs 211001

Editorial Notes
Amendments2019—Pub. L. 116–92, div. A, title XI, § 1122(c), Dec. 20, 2019, 133 Stat. 1608, added item for chapter 92.
2015—Pub. L. 114–113, div. M, title III, § 306(a)(2), Dec. 18, 2015, 129 Stat. 2916, added items for subpart J and chapter 110.
Pub. L. 114–47, § 2(b), Aug. 7, 2015, 129 Stat. 487, added item for chapter 96.
2011—Pub. L. 112–81, div. A, title XI, § 1101(d)(2), Dec. 31, 2011, 125 Stat. 1610, added item for chapter 99 and struck out former item for chapter 99 “Department of Defense National Security Personnel System”.
2010—Pub. L. 111–292, § 2(b)(1), Dec. 9, 2010, 124 Stat. 3170, added item for chapter 65.
Pub. L. 111–282, § 4(c)(3), Oct. 15, 2010, 124 Stat. 3044, added item for chapter 102.
2006—Pub. L. 109–295, title VI, § 621(b), Oct. 4, 2006, 120 Stat. 1416, added item for chapter 101.
2004—Pub. L. 108–496, § 4, Dec. 23, 2004, 118 Stat. 4010, added items for chapters 89A and 89B.
Pub. L. 108–201, § 3(b), Feb. 24, 2004, 118 Stat. 477, added item for chapter 98.
2003—Pub. L. 108–136, div. A, title XI, §§ 1101(a)(2), 1129(b), Nov. 24, 2003, 117 Stat. 1633, 1645, added items for chapters 54 and 99.
2002—Pub. L. 107–347, title II, § 209(c)(3), Dec. 17, 2002, 116 Stat. 2930, added item for chapter 37.
Pub. L. 107–296, title VIII, § 841(a)(3), Nov. 25, 2002, 116 Stat. 2233, added item for chapter 97.
Pub. L. 107–123, § 8(d)(1)(A), Jan. 16, 2002, 115 Stat. 2399, added item for chapter 48.
2000—Pub. L. 106–398, § 1 [[div. A], title X, § 1076(f)(1)(B)], Oct. 30, 2000, 114 Stat. 1654, 1654A–282, substituted “and Other Purposes” for “Purposes” in item for chapter 91.
Pub. L. 106–265, title I, § 1002(b), Sept. 19, 2000, 114 Stat. 769, added item for chapter 90.
1998—Pub. L. 105–206, title I, § 1201(b), July 22, 1998, 112 Stat. 719, added items for subpart I and chapter 95.
1993—Pub. L. 103–89, § 3(a)(2), Sept. 30, 1993, 107 Stat. 981, struck out item for chapter 54 “Performance Management and Recognition System”.
1986—Pub. L. 99–335, title I, § 101(b), June 6, 1986, 100 Stat. 588, added item for chapter 84.
1985—Pub. L. 99–169, title VIII, § 801(b), Dec. 4, 1985, 99 Stat. 1010, added items for subpart H and chapter 91.
1984—Pub. L. 98–615, title II, § 201(b), Nov. 8, 1984, 98 Stat. 3214, substituted “Performance Management and Recognition System” for “Merit Pay and Cash Awards” in item for chapter 54.
1978—Pub. L. 95–454, title I, § 101(b)(1), title II, § 203(b), title V, § 503(i), title VI, § 601(b), title VII, § 703(b), title IX, § 906(c)(5), Oct. 13, 1978, 92 Stat. 1118, 1134, 1184, 1188, 1217, 1227, added items for chapters 23, 34, 47, 54, and 72, substituted in item for chapter 43 “Appraisal” for “Rating” and in item for chapter 71 “Labor-Management Relations” for “Policies”, and inserted in heading of subpart F “Labor-Management and” before “Employee”.

Subpart A—General Provisions
CHAPTER 21—DEFINITIONS

Sec.

2101.Civil service; armed forces; uniformed services.

2101a.The Senior Executive Service.

2102.The competitive service.

2103.The excepted service.

2104.Officer.

2105.Employee.

2106.Member of Congress.

2107.Congressional employee.

2108.Veteran; disabled veteran; preference eligible.

2108a.Treatment of certain individuals as veterans, disabled veterans, and preference eligibles.

2109.Air traffic controller; Secretary.

Editorial Notes
Amendments2011—Pub. L. 112–56, title II, § 235(a)(2)(B), Nov. 21, 2011, 125 Stat. 723, added item 2108a.
1980—Pub. L. 96–347, § 1(d), Sept. 12, 1980, 94 Stat. 1150, substituted “controller; Secretary” for “controller” in item 2109.
1978—Pub. L. 95–454, title IV, § 401(e), Oct. 13, 1978, 92 Stat. 1154, added item 2101a.
1972—Pub. L. 92–297, § 1(b), May 16, 1972, 86 Stat. 141, added item 2109.

§ 2101. Civil service; armed forces; uniformed services
For the purpose of this title—(1) the “civil service” consists of all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services;

(2) “armed forces” means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard; and

(3) “uniformed services” means the armed forces, the commissioned corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 90–83, § 1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 96–54, § 2(a)(4), Aug. 14, 1979, 93 Stat. 381; Pub. L. 116–283, div. A, title IX, § 927(a), Jan. 1, 2021, 134 Stat. 3831.)

Historical and Revision Notes
1966 ActThe section is supplied to establish basis of reference to employees in this title.

1967 ActThis section amends various sections [§§ 2101, 4102, 4109, 5541, 8101] of title 5, United States Code, to reflect 1965 Reorganization Plan No. 2 (79 Stat. 1318), effective July 13, 1965, which consolidated the Coast and Geodetic Survey and the Weather Bureau to form a new agency in the Department of Commerce to be known as the Environmental Science Services Administration.

Editorial Notes
Amendments2021—Par. (2). Pub. L. 116–283 inserted “Space Force,” after “Marine Corps”.
1979—Par. (3). Pub. L. 96–54 substituted “National Oceanic and Atmospheric” for “Environmental Science Services”.

Statutory Notes and Related Subsidiaries
Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Short Title of 1998 AmendmentPub. L. 105–339, § 1, Oct. 31, 1998, 112 Stat. 3182, provided that: “This Act [enacting sections 3330a to 3330c of this title, section 1316a of Title 2, The Congress, section 115 of Title 3, The President, and section 1354 of Title 31, Money and Finance, amending sections 2108, 2302, and 3304 of this title and section 4212 of Title 38, Veterans’ Benefits, repealing section 1599c of Title 10, Armed Forces, enacting provisions set out as notes under section 2302 of this title and section 601 of Title 28, Judiciary and Judicial Procedure, and amending provisions set out as a note under section 106 of Title 49, Transportation] may be cited as the ‘Veterans Employment Opportunities Act of 1998’.”

Short Title of 1994 AmendmentPub. L. 103–226, § 1, Mar. 30, 1994, 108 Stat. 111, provided that: “This Act [amending sections 3381, 4101, 4103, 4105, 4107, 4108, 4113, 4118, 5597, 8351, 8433 to 8435, 8437, 8440a to 8440d of this title and section 1206 of Title 45, Railroads, repealing sections 4106 and 4114 of this title, enacting provisions set out as notes under sections 3101, 3381, 5597, 8331, and 8351 of this title, and amending provisions set out as a note under section 403–4 of Title 50, War and National Defense] may be cited as the ‘Federal Workforce Restructuring Act of 1994’.”

Short Title of 1990 AmendmentPub. L. 101–508, title VII, § 7202(a), Nov. 5, 1990, 104 Stat. 1388–335, provided that: “This section [amending sections 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under section 2105 of this title] may be cited as the ‘Portability of Benefits for Nonappropriated Fund Employees Act of 1990’.”

Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Coordination of Title VII of Pub. L. 101–508 With Section 909 of Title 2Pub. L. 101–508, title VII, § 7301, Nov. 5, 1990, 104 Stat. 1388–341, provided that: “For purposes of section 202 of the Balanced Budget and Emergency Deficit Reaffirmation Act of 1987 [probably means section 202 of the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. 100–119, which was formerly classified to section 909 of Title 2, The Congress], this title and the amendments made by this title [amending sections 552a, 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8334, 8339, 8342, 8343a, 8347, 8348, 8401, 8420a, 8461, 8901, 8902, 8904, 8906, 8909, and 8910 of this title, enacting provisions set out as notes under this section and sections 552a, 2105, 8334, 8343a, 8348, 8902, 8904, and 8906 of this title, amending provisions set out as notes under sections 8343a and 8906 of this title, and repealing provisions set out as notes under sections 8343a and 8348 of this title] shall be considered an exception under subsection (b) of such section.”

§ 2101a. The Senior Executive Service
The “Senior Executive Service” consists of Senior Executive Service positions (as defined in section 3132(a)(2) of this title).
(Added Pub. L. 95–454, title IV, § 401(a), Oct. 13, 1978, 92 Stat. 1154.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title.

§ 2102. The competitive service(a) The “competitive service” consists of—(1) all civil service positions in the executive branch, except—(A) positions which are specifically excepted from the competitive service by or under statute;

(B) positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate otherwise directs; and

(C) positions in the Senior Executive Service;

(2) civil service positions not in the executive branch which are specifically included in the competitive service by statute; and

(3) positions in the government of the District of Columbia which are specifically included in the competitive service by statute.

(b) Notwithstanding subsection (a)(1)(B) of this section, the “competitive service” includes positions to which appointments are made by nomination for confirmation by the Senate when specifically included therein by statute.

(c) As used in other Acts of Congress, “classified civil service” or “classified service” means the “competitive service”.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 95–454, title IV, § 401(b), Oct. 13, 1978, 92 Stat. 1154.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 638 (less applicability to appointment and promotion).Jan. 16, 1883, ch. 27, § 7 (less applicability to appointment and promotion), 22 Stat. 406.

Subsection (a) is restated in the form of a definition.
Subsection (a)(1) is based on former section 638, which placed positions in the executive branch of the Government generally in the competitive service by the requirement that employment be predicated on passing an examination or being exempted from examination, and section 1 of the Act of Nov. 26, 1940, ch. 919, title I, 54 Stat. 1211 (see table III), which authorized the President, subject to certain exceptions, to place in the classified civil service positions in the Executive departments, independent establishments, and other agencies of the Government. In that Act the word “executive” has been construed to modify “departments”, “independent establishments”; and “other agency”. This construction is supported by the language of the Act of Jan. 16, 1883, and is embodied in Civil Service Rule I. Acting under this statute, the President has placed all but a comparatively few of the positions covered by the Act of Nov. 26, 1940, in the competitive service. The remainder are covered by the exceptions contained in the Civil Service Rules and Regulations. The authority of the President conferred by the Act of Nov. 26, 1940, has been superseded in part by exceptions created by statutes enacted after that date. The effect of these exceptions and the power conferred on the President by former section 633(2)8 (last sentence) to make exceptions to the Civil Service Rules are preserved by the words “positions which are specifically excepted from the competitive service by or under statute”.
In subsection (a)(1)(B), the words “or to pass an examination” are omitted as covered by the exclusion from the “competitive service”.
Subsection (a)(2) preserves the exception stated in former section 638 modified to recognize the several statutory exceptions to this exception that have been enacted. The language of former section 638 relative to examination is codified in sections 3304(b) and 3361. The reference to veterans’ preference is omitted because the statute referred to, R.S. § 1754, was superseded by sections 3 and 21 of the Act of June 18, 1929, ch. 28, 46 Stat. 21. Section 3 of the Act of June 18, 1929, was superseded by the Act of June 27, 1944, ch. 287, 58 Stat. 387, as amended, which is carried into this title. Rights preserved by section 18 of the Act of June 27, 1944, are further preserved by technical section 8. The exception for laborers and workmen was superseded by the Act of Nov. 26, 1940.
Subsection (b) is added because of the provisions in section 3311 of title 39.
Subsection (c) is supplied for conformity inasmuch as the terms are coextensive by definition.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Subsec. (a)(1)(C). Pub. L. 95–454 added cl. (C).

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§ 2103. The excepted service(a) For the purpose of this title, the “excepted service” consists of those civil service positions which are not in the competitive service or the Senior Executive Service.

(b) As used in other Acts of Congress, “unclassified civil service” or “unclassified service” means the “excepted service”.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 95–454, title IV, § 401(c), Oct. 13, 1978, 92 Stat. 1154.)

Historical and Revision NotesThe section is supplied for convenience. The “excepted service” has come to mean all employees not in the competitive service, for whatever reason.

Editorial Notes
Amendments1978—Subsec. (a). Pub. L. 95–454 inserted reference to Senior Executive Service.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

§ 2104. Officer(a) For the purpose of this title, “officer”, except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is—(1) required by law to be appointed in the civil service by one of the following acting in an official capacity—(A) the President;

(B) a court of the United States;

(C) the head of an Executive agency; or

(D) the Secretary of a military department;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office.

(b) Except as otherwise provided by law, an officer of the United States Postal Service or of the Postal Regulatory Commission is deemed not an officer for purposes of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 91–375, § 6(c)(3), Aug. 12, 1970, 84 Stat. 775; Pub. L. 109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat. 3241.)

Historical and Revision NotesThe section is supplied for convenience.

Editorial Notes
Amendments2006—Subsec. (b). Pub. L. 109–435 substituted “Postal Regulatory Commission” for “Postal Rate Commission”.
1970—Subsec. (a). Pub. L. 91–375, § 6(c)(3)(A), (B), designated existing provisions as subsec. (a) and inserted in introductory text “as otherwise provided by this section or” after “except”.
Subsec. (b). Pub. L. 91–375, § 6(c)(3)(C), added subsec. (b).

Statutory Notes and Related Subsidiaries
Effective Date of 1970 AmendmentAmendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

§ 2105. Employee(a) For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—(1) appointed in the civil service by one of the following acting in an official capacity—(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

(b) An individual who is employed at the United States Naval Academy in the midshipmen’s laundry, the midshipmen’s tailor shop, the midshipmen’s cobbler and barber shops, and the midshipmen’s store, except an individual employed by the Academy dairy (if any), and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date is deemed an employee.

(c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Navy Ships Stores Program, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of—(1) laws administered by the Office of Personnel Management, except—(A) section 7204;

(B) as otherwise specifically provided in this title;

(C) the Fair Labor Standards Act of 1938;

(D) for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or

(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or

(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title.

This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.

(e) Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Regulatory Commission is deemed not an employee for purposes of this title.

(f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90–486, § 4, Aug. 13, 1968, 82 Stat. 757; Pub. L. 91–375, § 6(c)(4), Aug. 12, 1970, 84 Stat. 775; Pub. L. 92–392, § 2, Aug. 19, 1972, 86 Stat. 573; Pub. L. 95–454, title VII, § 703(c)(2), title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1217, 1224; Pub. L. 96–54, § 2(a)(5), (6), Aug. 14, 1979, 93 Stat. 381; Pub. L. 99–335, title II, § 207(a), June 6, 1986, 100 Stat. 594; Pub. L. 99–638, § 2(b)(1), Nov. 10, 1986, 100 Stat. 3536; Pub. L. 101–508, title VII, § 7202(b), Nov. 5, 1990, 104 Stat. 1388–335; Pub. L. 103–3, title II, § 201(b), Feb. 5, 1993, 107 Stat. 23; Pub. L. 103–424, § 7, Oct. 29, 1994, 108 Stat. 4364; Pub. L. 104–201, div. A, title III, § 370(b), Sept. 23, 1996, 110 Stat. 2499; Pub. L. 105–85, div. B, title XXVIII, § 2871(c)(2), Nov. 18, 1997, 111 Stat. 2015; Pub. L. 109–435, title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 113–66, div. A, title VI, § 642, Dec. 26, 2013, 127 Stat. 787.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(b)[Uncodified].Aug. 5, 1939, ch. 448, § 2, 53 Stat. 1210.
 [Uncodified].Dec. 3, 1945, ch. 510, § 2, 59 Stat. 590.
 [Uncodified].Dec. 28, 1945, ch. 593, § 2, 59 Stat. 660.
 [Uncodified].Dec. 28, 1945, ch. 594, § 2, 59 Stat. 660.
 [Uncodified].July 26, 1946, ch. 675, § 2 (last proviso), 60 Stat. 704.
(c)5 U.S.C. 150k.June 19, 1952, ch. 444, § 1, 66 Stat. 138.
(d)5 U.S.C. 30r(d).Aug. 10, 1956, ch. 1041, § 29(d), 70A Stat. 632.

Subsection (a) is supplied to avoid the necessity of defining “employee” each time it appears in this title. The subsection is based on a definition worked out independently by the Civil Service Commission and the Department of Labor and in use by both for more than a decade.
In subsection (b), the provisions of the source statutes which relate to credit for prior service and diminution of pay are executed, or, insofar as to be executed preserved by technical section 8.
In subsection (d), the words “officer or” are omitted as included within “employee”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextThe Fair Labor Standards Act of 1938, referred to in subsec. (c)(1)(C), is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

Amendments2013—Subsec. (c). Pub. L. 113–66 substituted “Navy Ships Stores Program” for “Army and Air Force Motion Picture Service, Navy Ship’s Stores Ashore” in introductory provisions.
2006—Subsec. (e). Pub. L. 109–435 substituted “Postal Regulatory Commission” for “Postal Rate Commission”.
1997—Subsec. (b). Pub. L. 105–85 inserted “(if any)” after “Academy dairy”.
1996—Subsec. (b). Pub. L. 104–201 inserted “who is” after “An individual” and “and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date” after “Academy dairy,”.
1994—Subsec. (f). Pub. L. 103–424 added subsec. (f).
1993—Subsec. (c)(1)(E). Pub. L. 103–3 added subpar. (E).
1990—Subsec. (c)(1). Pub. L. 101–508, § 7202(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “laws (other than subchapter IV of chapter 53 of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title, and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or”.
Subsec. (c)(2). Pub. L. 101–508, § 7202(b)(2), inserted “(except to the extent specifically provided therein)” after “chapter 84”.
1986—Subsec. (c)(1). Pub. L. 99–638 inserted “of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title,”.
Subsec. (c)(2). Pub. L. 99–335 substituted “chapter 81, chapter 84,” for “chapter 81”.
1979—Subsec. (a)(1)(F). Pub. L. 96–54, § 2(a)(5), substituted “an adjutant” for “the adjutants” and struck out “, United States Code” after “32”.
Subsec. (c)(1). Pub. L. 96–54, § 2(a)(6), amended subsec. (c)(1) in same manner as amendment by section 703(c)(2) of Pub. L. 95–454. See 1978 Amendment note set out below.
1978—Subsec. (c)(1). Pub. L. 95–454 substituted “7204” for “7154”, and “Office of Personnel Management” for “Civil Service Commission”. Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of this section, and subsec. (c)(2) purported to amend section 3302(2) of this title. However, the amendments specified by Pub. L. 95–454, § 703(c)(1) and (2), were impossible to execute literally. Thus, the amendment by Pub. L. 95–454, § 703(c)(2) was executed to this section, and the amendment by section 703(c)(1) was executed to section 3302(2) of this title as the probable intent of Congress.
1972—Subsec. (c)(1). Pub. L. 92–392 substituted “laws (other than subchapter IV of chapter 53 and sections 5550 and 7154 of this title)” for “laws”.
1970—Subsec. (e). Pub. L. 91–375 added subsec. (e).
1968—Subsec. (a)(1)(F). Pub. L. 90–486 added subpar. (F).

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentPub. L. 104–201, div. A, title III, § 370(e), Sept. 23, 1996, 110 Stat. 2499, provided that: “The amendments made by this section [amending this section and section 6971 of Title 10, Armed Forces, and repealing section 6970 of Title 10] shall take effect on October 1, 1996.”

Effective Date of 1993 AmendmentAmendment by Pub. L. 103–3 effective 6 months after Feb. 5, 1993, see section 405(b)(1) of Pub. L. 103–3, set out as an Effective Date note under section 2601 of Title 29, Labor.

Effective Date of 1990 AmendmentPub. L. 101–508, title VII, § 7202(m), Nov. 5, 1990, 104 Stat. 1388–339, provided that:
“(1) The amendments made by this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title] shall apply with respect to any individual who, on or after January 1, 1987—“(A) moves without a break in service of more than 3 days from employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard that is described in section 2105(c) of title 5, United States Code, to employment in the Department of Defense or the Coast Guard, respectively, that is not described in such section 2105(c); or

“(B) moves without a break in service from employment in the Department of Defense or the Coast Guard that is not described in such section 2105(c) to employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, respectively, that is described in such section 2105(c).

“(2) The Secretary of Defense, the Secretary of Transportation, the Director of the Office of Personnel Management, and the Executive Director of the Federal Retirement Thrift Investment Board, as applicable, shall take such actions as may be practicable to ensure that each individual who has moved as described under paragraph (1) on or after January 1, 1987, and before the date of enactment of this Act [Nov. 5, 1990], receives the benefit of the amendments made by this section as if such amendments had been in effect at the time such individual so moved. Each such individual who wishes to make an election of retirement coverage under the amendments made by subsection (j) or (k) of this section [amending sections 8331, 8347, 8401, and 8461 of this title] shall complete such election within 180 days after the date of enactment of this Act.”

Effective Date of 1986 AmendmentAmendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effective Date note under section 8401 of this title.

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 AmendmentAmendment 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.

Effective Date of 1972 AmendmentAmendment by Pub. L. 92–392 effective on first day of first applicable pay period beginning on or after 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92–392, set out as an Effective Date note under section 5341 of this title.

Effective Date of 1970 AmendmentAmendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective Date of 1968 AmendmentAmendment by Pub. L. 90–486 effective Jan. 1, 1968, except that no deductions or withholding from salary which result therefrom shall commence before the first day of the first pay period that begins on or after Jan. 1, 1968, see section 11 of Pub. L. 90–486, set out as a note under section 709 of Title 32, National Guard.

Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Treatment of Individuals Electing To Remain Subject to Their Former Retirement SystemPub. L. 101–508, title VII, § 7202(n), Nov. 5, 1990, 104 Stat. 1388–340, as amended by Pub. L. 102–378, § 5(a)(2), Oct. 2, 1992, 106 Stat. 1358, provided that:
“(1) For the purpose of this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under this section and section 2101 of this title], the term ‘nonappropriated fund instrumentality’ means a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in section 2105(c) of title 5, United States Code.

“(2)(A) If an individual makes an election under section 8347(q)(1) of title 5, United States Code, to remain covered by subchapter III of chapter 83 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual’s pay and contribute to the Thrift Savings Fund such sums as are required for such individual in accordance with section 8351 of such title.

“(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act [Nov. 5, 1990], becomes eligible to make an election under section 8347(q)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2) [set out as a note above], make any election described in section 8432(b)(1)(A) of such title.

“(3)(A) If an individual makes an election under section 8461(n)(1) of title 5, United States Code, to remain covered by chapter 84 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual’s pay and shall contribute to the Thrift Savings Fund the funds deducted, together with such other sums as are required for such individual under subchapter III of such chapter.

“(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act, becomes eligible to make an election under section 8461(n)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2), make any election described in section 8432(b)(1)(A) of such title.

“(4) If an individual makes an election under section 8347(q)(2) or 8461(n)(2) of title 5, United States Code, to remain covered by a retirement system established for employees described in section 2105(c) of such title, any Government agency thereafter employing such individual shall, in lieu of any deductions or contributions for which it would otherwise be responsible with respect to such individual under chapter 83 or 84 of such title, make such deductions from pay and such contributions as would be required (under the retirement system for nonappropriated fund employees involved) if it were a nonappropriated fund instrumentality. Any such deductions and contributions shall be remitted to the Department of Defense or the Coast Guard, as applicable, for transmission to the appropriate retirement system.”

[Amendment by Pub. L. 102–378 to section 7202(n) of Pub. L. 101–508, set out above, effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 102–378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.]

Prohibition of Decrease in Basic Pay Rate of Employees of Nonappropriated Fund InstrumentalitiesAmendments by Pub. L. 92–392 not to decrease basic pay rate of subsec. (c) employees in service before effective date of the amendments as to such employees, see section 9(a)(2) of Pub. L. 92–392, set out as a note under section 5343 of this title.

§ 2106. Member of Congress
For the purpose of this title, “Member of Congress” means the Vice President, a member of the Senate or the House of Representatives, a Delegate to the House of Representatives, and the Resident Commissioner from Puerto Rico.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 91–405, title II, § 204(b), Sept. 22, 1970, 84 Stat. 852; Pub. L. 96–54, § 2(a)(7), Aug. 14, 1979, 93 Stat. 381.)

Historical and Revision NotesThe section is supplied to avoid the necessity of defining “Member of Congress” each time the term is used in this title.

Editorial Notes
Amendments1979—Pub. L. 96–54 substituted “to the House of Representatives” for “from the District of Columbia”.
1970—Pub. L. 91–405 included Delegate from District of Columbia.

Statutory Notes and Related Subsidiaries
Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1970 AmendmentAmendment by Pub. L. 91–405 effective Sept. 22, 1970, see section 206(b) of Pub. L. 91–405, set out as an Effective Date note under section 25a of Title 2, The Congress.

§ 2107. Congressional employee
For the purpose of this title, “Congressional employee” means—(1) an employee of either House of Congress, of a committee of either House, or of a joint committee of the two Houses;

(2) an elected officer of either House who is not a Member of Congress;

(3) the Legislative Counsel of either House and an employee of his office;

(4) a member or employee of the Capitol Police;

(5) an employee of a Member of Congress if the pay of the employee is paid by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives;

[(6) Repealed. Pub. L. 90–83, § 1(5)(A), Sept. 11, 1967, 81 Stat. 196.]

(7) the Architect of the Capitol and an employee of the Architect of the Capitol;

(8) an employee of the Botanic Garden; and

(9) an employee of the Office of Congressional Accessibility Services.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90–83, § 1(5), Sept. 11, 1967, 81 Stat. 196; Pub. L. 91–510, title IV, § 442(a), Oct. 26, 1970, 84 Stat. 1191; Pub. L. 104–186, title II, § 215(1), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 110–437, title IV, § 422(c), Oct. 20, 2008, 122 Stat. 4997; Pub. L. 111–145, § 7(a), Mar. 4, 2010, 124 Stat. 55.)

Historical and Revision Notes
1966 ActThe section is supplied to avoid the necessity of defining “Congressional employee” each time the term is used in this title.

1967 Act

Section of title 5Source (U.S. Code)Source (Statutes at Large)

2107(6)2:126–1.July 27, 1965, Pub. L. 89–90, § 101 (proviso on p. 265), 79 Stat. 265.
2107(8)5 App.: 2251(c).Sept. 26, 1966, Pub. L. 89–604, § 1(a), 80 Stat. 846.

Paragraph (6), relating to Official Reporters of Debates of the Senate and their employees, is eliminated as unnecessary on authority of the act of July 27, 1965 (2 U.S.C. 126–1). Pursuant to that act, the Official Reporters and their employees became employees of the Senate; accordingly, they are now included within the definition of “Congressional employee” under paragraph (1).
In paragraph (8), based on the act of September 26, 1966 (5 App. U.S.C. 2251(c)), the word “officers” is omitted as included in “employees,” and the words “United States” preceding the words “Botanic Garden” are omitted as unnecessary.

Editorial Notes
Amendments2010—Par. (4). Pub. L. 111–145, inserted “or employee” after “member”.
2008—Par. (9). Pub. L. 110–437 amended par. (9) generally. Prior to amendment, par. (9) read as follows: “an employee of the Capitol Guide Service.”
1996—Par. (5). Pub. L. 104–186 substituted “Chief Administrative Officer” for “Clerk”.
1970—Par. (9). Pub. L. 91—510 added par. (9).

Statutory Notes and Related Subsidiaries
Effective Date of 2010 AmendmentPub. L. 111–145, § 7(d), Mar. 4, 2010, 124 Stat. 56, provided that: “The amendments made by this section [amending this section and sections 5515, 5531, 5533, and 5537 of this title] shall take effect as though enacted as part of section 1018 of the Legislative Branch Appropriations Act, 2003 (2 U.S.C. 1907).”

Effective Date of 2008 AmendmentAmendment by Pub. L. 110–437 effective first day of first pay period (applicable to employees transferred under section 2241 of Title 2, The Congress) on or after 30 days after Oct. 20, 2008, see section 422(d) of Pub. L. 110–437, set out as a note under section 1301 of Title 2.

Effective Date of 1970 AmendmentAmendment by Pub. L. 91–510 effective immediately prior to noon on June. 3, 1971, see section 601(1) of Pub. L. 91–510, set out as a note under section 4301 of Title 2, The Congress.

§ 2108. Veteran; disabled veteran; preference eligible
For the purpose of this title—(1) “veteran” means an individual who—(A) served on active duty in the armed forces during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955;

(B) served on active duty as defined by section 101(21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred after January 31, 1955, and before October 15, 1976, not including service under section 12103(d) of title 10 pursuant to an enlistment in the Army National Guard or the Air National Guard or as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve;

(C) served on active duty as defined by section 101(21) of title 38 in the armed forces during the period beginning on August 2, 1990, and ending on January 2, 1992; or

(D) served on active duty as defined by section 101(21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred during the period beginning on September 11, 2001, and ending on the date prescribed by Presidential proclamation or by law as the last date of Operation Iraqi Freedom;

and, except as provided under section 2108a, who has been discharged or released from active duty in the armed forces under honorable conditions;

(2) “disabled veteran” means an individual who has served on active duty in the armed forces, (except as provided under section 2108a) has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department;

(3) “preference eligible” means, except as provided in paragraph (4) of this section or section 2108a(c)—(A) a veteran as defined by paragraph (1)(A) of this section;

(B) a veteran as defined by paragraph (1)(B), (C), or (D) of this section;

(C) a disabled veteran;

(D) the unmarried widow or widower of a veteran as defined by paragraph (1)(A) of this section;

(E) the wife or husband of a service-connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia;

(F) the parent of an individual who lost his or her life under honorable conditions while serving in the armed forces during a period named by paragraph (1)(A) of this section, if—(i) the spouse of that parent is totally and permanently disabled; or

(ii) that parent, when preference is claimed, is unmarried or, if married, legally separated from his or her spouse;

(G) the parent of a service-connected permanently and totally disabled veteran, if—(i) the spouse of that parent is totally and permanently disabled; or

(ii) that parent, when preference is claimed, is unmarried or, if married, legally separated from his or her spouse; and

(H) a veteran who was discharged or released from a period of active duty by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10);

but does not include applicants for, or members of, the Senior Executive Service, the Defense Intelligence Senior Executive Service, the Senior Cryptologic Executive Service, or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;

(4) except for the purposes of chapters 43 and 75 of this title, “preference eligible” does not include a retired member of the armed forces unless—(A) the individual is a disabled veteran; or

(B) the individual retired below the rank of major or its equivalent; and

(5) “retired member of the armed forces” means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 410; Pub. L. 90–83, § 1(6), Sept. 11, 1967, 81 Stat. 196; Pub. L. 90–623, § 1(2), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 92–187, § 1, Dec. 15, 1971, 85 Stat. 644; Pub. L. 94–502, title VII, § 702, Oct. 15, 1976, 90 Stat. 2405; Pub. L. 95–454, title III, § 307(a), title IV, § 401(d), Oct. 13, 1978, 92 Stat. 1147, 1154; Pub. L. 96–54, § 2(a)(8), (9)(A), Aug. 14, 1979, 93 Stat. 381; Pub. L. 96–191, § 8(a), Feb. 15, 1980, 94 Stat. 33; Pub. L. 97–89, title VIII, § 801, Dec. 4, 1981, 95 Stat. 1161; Pub. L. 100–325, § 2(a), May 30, 1988, 102 Stat. 581; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 105–85, div. A, title XI, § 1102(a), (c), Nov. 18, 1997, 111 Stat. 1922; Pub. L. 105–339, § 4(a), Oct. 31, 1998, 112 Stat. 3185; Pub. L. 109–163, div. A, title V, § 515(f)(1), title XI, §§ 1111, 1112(a), Jan. 6, 2006, 119 Stat. 3236, 3451; Pub. L. 110–317, § 8, Aug. 29, 2008, 122 Stat. 3529; Pub. L. 112–56, title II, § 235(a)(2)(A), Nov. 21, 2011, 125 Stat. 723; Pub. L. 114–62, § 2, Oct. 7, 2015, 129 Stat. 547.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 851 (less 1st 76 words).June 27, 1944, ch. 287, § 2 (less 1st 76 words), 58 Stat. 387.
  Jan. 19, 1948, ch. 1, § 1, 62 Stat. 3.
  July 2, 1948, ch. 816, 62 Stat. 1233.
  Aug. 26, 1949, ch. 513, 63 Stat. 666.
  Dec. 27, 1950, ch. 1151, § 1, 64 Stat. 1117.
  July 14, 1952, ch. 728, § 1, 66 Stat. 626.

In paragraph (2), the words “a military department” are substituted for “the War Department or Navy Department” (appearing in section 2 of the Act of June 27, 1944) because of the definition of “military department” in section 102. The Department of War was designated the Department of the Army by the Act of July 26, 1947, ch. 343, § 205, 61 Stat. 501. “Department of the Air Force” is included on authority of the Act of July 26, 1947, ch. 343, § 207 (a), (f), 61 Stat. 502.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5Source (U.S. Code)Source (Statutes at Large)

21085 App.: 851.Mar. 3, 1966, Pub. L. 89–358, § 11, 80 Stat. 28.

Editorial Notes
Amendments2015—Par. (3)(F), (G). Pub. L. 114–62 added subpars. (F) and (G) and struck out former subpars. (F) and (G) which included in the definition of “preference eligible” certain mothers of individuals who lost their lives under honorable conditions in the armed forces and certain mothers of service-connected permanently and totally disabled veterans.
2011—Par. (1). Pub. L. 112–56, § 235(a)(2)(A)(i), in concluding provisions, inserted “, except as provided under section 2108a,” before “who has been”.
Par. (2). Pub. L. 112–56, § 235(a)(2)(A)(ii), inserted “(except as provided under section 2108a)” before “has been separated”.
Par. (3). Pub. L. 112–56, § 235(a)(2)(A)(iii), in introductory provisions, inserted “or section 2108a(c)” after “paragraph (4) of this section”.
2008—Par. (3)(H). Pub. L. 110–317 added subpar. (H).
2006—Par. (1). Pub. L. 109–163, § 1112(a), in concluding provisions, substituted “discharged or released from active duty in” for “separated from”.
Par. (1)(B). Pub. L. 109–163, § 515(f)(1), substituted “Navy Reserve” for “Naval Reserve”.
Par. (1)(D). Pub. L. 109–163, § 1111(a), added subpar. (D).
Par. (3)(B). Pub. L. 109–163, § 1111(b), substituted “paragraph (1)(B), (C), or (D)” for “paragraph (1)(B) or (C)”.
1998—Par. (3). Pub. L. 105–339, in concluding provisions, substituted “or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;” for “the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, or the General Accounting Office;”.
1997—Par. (1)(B). Pub. L. 105–85, § 1102(c), substituted “October 15, 1976,” for “the date of enactment of the Veterans’ Education and Employment Assistance Act of 1976,” and “12103(d) of title 10” for “511(d) of title 10”.
Par. (1)(C). Pub. L. 105–85, § 1102(a)(1), added subpar. (C).
Par. (3)(B). Pub. L. 105–85, § 1102(a)(2), inserted “or (C)” after “paragraph (1)(B)”.
1991—Par. (2). Pub. L. 102–54 substituted “Department of Veterans Affairs” for “Veterans’ Administration”.
1988—Par. (3). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service in concluding provisions.
1981—Par. (3). Pub. L. 97–89 inserted reference to Defense Intelligence Senior Executive Service and Senior Cryptologic Executive Service in concluding provisions.
1980—Par. (3). Pub. L. 96–191 inserted reference to General Accounting Office in concluding provisions.
1979—Par. (3). Pub. L. 96–54, § 2(a)(8), inserted provision excepting applicants for, or members of, Senior Executive Service.
Par. (5). Pub. L. 96–54, § 2(a)(9)(A), struck out provision excepting applicants for, or members of, Senior Executive Service.
1978—Par. (2). Pub. L. 95–454, § 307(a)(1), struck out “and” at end.
Par. (3). Pub. L. 95–454, § 307(a)(2), (3), inserted “, except as provided in paragraph (4) of this section” after “means”, and substituted a semicolon for the period at end.
Pars. (4), (5). Pub. L. 95–454, § 307(a)(4), added pars. (4) and (5) relating to retired members of the armed forces.
Par. (5). Pub. L. 95–454, § 401(d), inserted “; but does not include applicants for, or members of, the Senior Executive Service” before the period at end.
1976—Par. (1)(B). Pub. L. 94–502 substituted “any part of which occurred after January 31, 1955, and before the date of enactment of the Veterans’ Education and Employment Assistance Act of 1976,” for “after January 31, 1955,”.
1971—Par. (3)(D). Pub. L. 92–187 inserted “or widower” after “unmarried widow”.
Par. (3)(E). Pub. L. 92–187 inserted “or husband” after “the wife”.
1968—Par. (3)(D). Pub. L. 90–623 inserted “as defined by paragraph (1)(A) of this section” after “veteran”.

Statutory Notes and Related Subsidiaries
Effective Date of 2015 AmendmentPub. L. 114–62, § 3, Oct. 7, 2015, 129 Stat. 548, provided that: “The amendment made by this Act [amending this section] shall take effect 90 days after the date of enactment of this Act [Oct. 7, 2015].”

Effective Date of 2008 AmendmentPub. L. 110–317, § 10, Aug. 29, 2008, 122 Stat. 3530, provided that:
“(a) Retroactive Effective Date.—Except as provided in subsection (b) and section 9 [amending section 685 of Title 26, Internal Revenue Code, and enacting provisions set out as a note under section 685 of Title 26], this Act [amending this section, section 8521 of this title, sections 1145, 1146, and 1174 of Title 10, Armed Forces, section 685 of Title 26, section 303a of Title 37, Pay and Allowances of the Uniformed Services, and sections 3011, 3012, 3702, and 4211 of Title 38, Veterans’ Benefits, and enacting provisions set out as notes under section 101 of Title 10 and section 685 of Title 26] and the amendments made by this Act shall apply with respect to any sole survivorship discharge granted after September 11, 2001.

“(b) Date of Enactment Effective Date for Certain Amendments.—The amendments made by sections 4, 7, and 8 [amending this section and section 8521 of this title and section 1145 of Title 10] shall apply with respect to any sole survivorship discharge granted after the date of the enactment of this Act [Aug. 29, 2008].

“(c) Sole Survivorship Discharge Defined.—In this section, the term ‘sole survivorship discharge’ means the separation of a member from the Armed Forces, at the request of the member, pursuant to the Department of Defense policy permitting the early separation of a member who is the only surviving child in a family in which—“(1) the father or mother or one or more siblings—“(A) served in the Armed Forces; and

“(B) was killed, died as a result of wounds, accident, or disease, is in a captured or missing in action status, or is permanently 100 percent disabled or hospitalized on a continuing basis (and is not employed gainfully because of the disability or hospitalization); and

“(2) the death, status, or disability did not result from the intentional misconduct or willful neglect of the parent or sibling and was not incurred during a period of unauthorized absence.”

Effective Date of 1981 AmendmentAmendment by Pub. L. 97–89 effective Oct. 1, 1981, see section 806 of Pub. L. 97–89, set out as an Effective Date note under section 1621 of Title 10, Armed Forces.

Effective Date of 1980 AmendmentAmendment by Pub. L. 96–191 effective Oct. 1, 1980, see section 10(a) of Pub. L. 96–191.

Effective Date of 1979 AmendmentAmendment by section 2(a)(8) of Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.
Pub. L. 96–54, § 2(a)(9)(B), Aug. 14, 1979, 93 Stat. 381, provided that: “The amendment made by subparagraph (A) [amending this section] shall take effect October 1, 1980”.

Effective Date of 1978 AmendmentPub. L. 95–454, title III, § 307(a), Oct. 13, 1978, 92 Stat. 1147, provided that the amendment made by that section is effective Oct. 1, 1980.
Amendment by section 401(d) of Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1968 AmendmentAmendment by Pub. L. 90–623 effective Sept. 11, 1967, for all purposes, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

Savings ProvisionPub. L. 109–163, div. A, title XI, § 1112(b), Jan. 6, 2006, 119 Stat. 3451, provided that: “Nothing in the amendment made by subsection (a) [amending this section] may be construed to affect a determination made before the date of enactment of this Act [Jan. 6, 2006] that an individual is a preference eligible (as defined in section 2108(3) of title 5, United States Code).”

Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§ 2108a. Treatment of certain individuals as veterans, disabled veterans, and preference eligibles(a) Veteran.—(1) In general.—Except as provided under paragraph (3),11 So in original. Subsec. does not contain a par. (3). an individual shall be treated as a veteran defined under section 2108(1) for purposes of making an appointment in the competitive service, if the individual—(A) meets the definition of a veteran under section 2108(1), except for the requirement that the individual has been discharged or released from active duty in the armed forces under honorable conditions; and

(B) submits a certification described under paragraph (2) to the Federal officer making the appointment.

(2) Certification.—A certification referred to under paragraph (1) is a certification that the individual is expected to be discharged or released from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification.

(b) Disabled Veteran.—(1) In general.—Except as provided under paragraph (3),1 an individual shall be treated as a disabled veteran defined under section 2108(2) for purposes of making an appointment in the competitive service, if the individual—(A) meets the definition of a disabled veteran under section 2108(2), except for the requirement that the individual has been separated from active duty in the armed forces under honorable conditions; and

(B) submits a certification described under paragraph (2) to the Federal officer making the appointment.

(2) Certification.—A certification referred to under paragraph (1) is a certification that the individual is expected to be separated from active duty in the armed forces under honorable conditions not later than 120 days after the date of the submission of the certification.

(c) Preference Eligible.—Subsections (a) and (b) shall apply with respect to determining whether an individual is a preference eligible under section 2108(3) for purposes of making an appointment in the competitive service.

(Added Pub. L. 112–56, title II, § 235(a)(1), Nov. 21, 2011, 125 Stat. 722.)

§ 2109. Air traffic controller; Secretary
For the purpose of this title—(1) “air traffic controller” or “controller” means a civilian employee of the Department of Transportation or the Department of Defense who, in an air traffic control facility or flight service station facility—(A) is actively engaged—(i) in the separation and control of air traffic; or

(ii) in providing preflight, inflight, or airport advisory service to aircraft operators; or

(B) is the immediate supervisor of any employee described in subparagraph (A); and

(2) “Secretary”, when used in connection with “air traffic controller” or “controller”, means the Secretary of Transportation with respect to controllers in the Department of Transportation, and the Secretary of Defense with respect to controllers in the Department of Defense.

(Added Pub. L. 92–297, § 1(a), May 16, 1972, 86 Stat. 141; amended Pub. L. 96–347, § 1(a), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 99–335, title II, § 207(b), June 6, 1986, 100 Stat. 594.)

Editorial Notes
Amendments1986—Par. (1). Pub. L. 99–335 amended par. (1) generally including within term “air traffic controller” or “controller” references to a flight service station facility and to employment providing preflight, inflight, or airport advisory service to aircraft operators and striking out provision that regulations prescribed by the Secretary be used in determining who is an air traffic controller.
1980—Pub. L. 96–347 substituted “controller; Secretary” for “controller” in section catchline, and in text included employees of the Department of Defense within the meaning of air traffic controller or controller and defined “Secretary” to mean Secretary of Transportation with respect to controllers in the Department of Transportation and Secretary of Defense with respect to controllers in the Department of Defense.

Statutory Notes and Related Subsidiaries
Effective Date of 1986 AmendmentAmendment by Pub. L. 99–335 effective Jan. 1, 1987, see section 702(a) of Pub. L. 99–335, set out as an Effective Date note under section 8401 of this title.

Effective Date of 1980 AmendmentPub. L. 96–347, § 3, Sept. 12, 1980, 94 Stat. 1151, provided that:
“This Act [amending this section and sections 3307, 3381 to 3385, and 8335 of this title and enacting provisions set out as a note under section 8335 of this title] shall take effect on the later of—
“(1) October 1, 1980, or

“(2) the ninetieth day after the date of the enactment of this Act [Sept. 12, 1980].”

Effective DateSection effective on 90th day after May 16, 1972, see, section 10 of Pub. L. 92–297, set out as a note under section 3381 of this title.

CHAPTER 23—MERIT SYSTEM PRINCIPLES

Sec.

2301.Merit system principles.

2302.Prohibited personnel practices.

2303.Prohibited personnel practices in the Federal Bureau of Investigation.

2304.Prohibited personnel practices affecting the Transportation Security Administration.

2305.Responsibility of the Government Accountability Office.

2306.Coordination with certain other provisions of law.

[2307.Repealed.]

Editorial Notes
Amendments2017—Pub. L. 115–91, div. A, title X, § 1097(b)(1)(A), Dec. 12, 2017, 131 Stat. 1616, struck out item 2307 “Information on whistleblower protections”.
Pub. L. 115–73, title I, § 107(c), Oct. 26, 2017, 131 Stat. 1240, added item 2307.
2012—Pub. L. 112–199, § 109(b), Nov. 27, 2012, 126 Stat. 1471, added items 2304 to 2306 and struck out former items 2304 “Responsibility of the Government Accountability Office” and 2305 “Coordination with certain other provisions of law”.
2004—Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814, substituted “Government Accountability Office” for “General Accounting Office” in item 2304.

§ 2301. Merit system principles(a) This section shall apply to—(1) an Executive agency; and

(2) the Government Publishing Office.

(b) Federal personnel management should be implemented consistent with the following merit system principles:(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.

(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.

(5) The Federal work force should be used efficiently and effectively.

(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.

(8) Employees should be—(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and

(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.

(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences—(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(c) In administering the provisions of this chapter—(1) with respect to any agency (as defined in section 2302(a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.

(Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1113; amended Pub. L. 101–474, § 5(c), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.)

Editorial Notes
Amendments1990—Subsec. (a). Pub. L. 101–474 redesignated par. (3) as (2) and struck out former par. (2) which provided that this section is applicable to Administrative Office of United States Courts.

Statutory Notes and Related Subsidiaries

Change of Name
“Government Publishing Office” substituted for “Government Printing Office” in subsec. (a)(2) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective DateChapter effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

Training for SupervisorsPub. L. 115–73, title I, § 106, Oct. 26, 2017, 131 Stat. 1238, provided that:
“In consultation with the Special Counsel and the Inspector General of the agency (or senior ethics official of the agency for an agency without an Inspector General), the head of each agency shall provide training regarding how to respond to complaints alleging a violation of whistleblower protections (as defined in [former] section 2307 of title 5, United States Code, as added by section 107) available to employees of the agency—
“(1) to employees appointed to supervisory positions in the agency who have not previously served as a supervisor; and

“(2) on an annual basis, to all employees of the agency serving in a supervisory position.”

[For definitions of “agency” and “employee” as used in section 106 of Pub. L. 115–73, set out above, see section 101 of Pub. L. 115–73, set out as a note under section 1212 of this title.]

Notification and Federal Employee Antidiscrimination and RetaliationPub. L. 107–174, May 15, 2002, 116 Stat. 566, as amended by Pub. L. 109–435, title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 116–283, div. A, title XI, §§ 1132–1134(a)(1), (b), 1135–1137, Jan. 1, 2021, 134 Stat. 3900–3903, provided that:
“SECTION 1. SHORT TITLE; TABLE OF CONTENTS.“(a) Short Title.—This Act may be cited as the ‘Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002’.

“(b) Table of Contents.—
[Omitted.]

“TITLE I—GENERAL PROVISIONS“SEC. 101. FINDINGS.“Congress finds that—“(1) Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination;

“(2) Congress has heard testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, that point to chronic problems of discrimination and retaliation against Federal employees;

“(3) in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000;

“(4) in October 2000, an Occupational Safety and Health Administration investigation found that the Environmental Protection Agency had retaliated against a senior scientist for disagreeing with that agency on a matter of science and for helping Congress to carry out its oversight responsibilities;

“(5) there have been several recent class action suits based on discrimination brought against Federal agencies, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Administration, the Immigration and Naturalization Service, the United States Marshals Service, the Department of Agriculture, the United States Information Agency, and the Social Security Administration;

“(6) notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law;

“(7) requiring annual reports to Congress on the number and severity of discrimination and whistleblower cases brought against each Federal agency should enable Congress to improve its oversight over compliance by agencies with the law; and

“(8) requiring Federal agencies to pay for any discrimination or whistleblower judgment, award, or settlement should improve agency accountability with respect to discrimination and whistleblower laws.

“SEC. 102. SENSE OF CONGRESS.“It is the sense of Congress that—“(1) Federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits, or workforce to pay for such judgments or settlements;

“(2) the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised;

“(3) Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act;

“(4) accountability in the enforcement of the rights of Federal employees is furthered when Federal agencies agree to take appropriate disciplinary action against Federal employees who are found to have intentionally committed discriminatory (including retaliatory) acts;

“(5)(A) accountability is not furthered if Federal agencies react to the increased accountability under this Act for what, by law, the agency is responsible by taking unfounded disciplinary actions against managers or by violating the procedural rights of managers who have been accused of discrimination; and

“(B) Federal agencies should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution and other essential communication skills; and

“(6)(A) Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and

“(B) a Federal agency, particularly if the amount of reimbursement under this Act is large relative to annual appropriations for that agency, may need to extend reimbursement over several years in order to avoid—“(i) reductions in force;

“(ii) furloughs;

“(iii) other reductions in compensation or benefits for the workforce of the agency; or

“(iv) an adverse effect on the mission of the agency.

“SEC. 103. DEFINITIONS.“For purposes of this Act—“(1) the term ‘applicant for Federal employment’ means an individual applying for employment in or under a Federal agency;

“(2) the term ‘basis of alleged discrimination’ shall have the meaning given such term under section 303;

“(3) the term ‘Federal agency’ means an Executive agency (as defined in section 105 of title 5, United States Code), the United States Postal Service, or the Postal Regulatory Commission;

“(4) the term ‘Federal employee’ means an individual employed in or under a Federal agency;

“(5) the term ‘former Federal employee’ means an individual formerly employed in or under a Federal agency; and

“(6) the term ‘issue of alleged discrimination’ shall have the meaning given such term under section 303.

“SEC. 104. EFFECTIVE DATE.“This Act and the amendments made by this Act shall take effect on the 1st day of the 1st fiscal year beginning more than 180 days after the date of the enactment of this Act [May 15, 2002].

“TITLE II—FEDERAL EMPLOYEE DISCRIMINATION AND RETALIATION“SEC. 201. REIMBURSEMENT REQUIREMENT.“(a) Applicability.—This section applies with respect to any payment made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code (relating to judgments, awards, and compromise settlements) to any Federal employee, former Federal employee, or applicant for Federal employment, in connection with any proceeding brought by or on behalf of such employee, former employee, or applicant under—“(1) any provision of law cited in subsection (c); or

“(2) any other provision of law which prohibits any form of discrimination, as identified under rules issued under section 204.

“(b) Requirement.—An amount equal to the amount of each payment described in subsection (a) shall be reimbursed to the fund described in section 1304 of title 31, United States Code, out of any appropriation, fund, or other account (excluding any part of such appropriation, of such fund, or of such account available for the enforcement of any Federal law) available for operating expenses of the Federal agency to which the discriminatory conduct involved is attributable as determined under section 204.

“(c) Scope.—The provisions of law cited in this subsection are the following:“(1) Section 2302(b) of title 5, United States Code, as applied to discriminatory conduct described in paragraphs (1) and (8), or described in paragraph (9) of such section as applied to discriminatory conduct described in paragraphs (1) and (8), of such section.

“(2) The provisions of law specified in section 2302(d) of title 5, United States Code.

“SEC. 202. NOTIFICATION REQUIREMENT.“(a) In General.—Written notification of the rights and protections available to Federal employees, former Federal employees, and applicants for Federal employment (as the case may be) in connection with the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) shall be provided to such employees, former employees, and applicants—“(1) in accordance with otherwise applicable provisions of law; or

“(2) if, or to the extent that, no such notification would otherwise be required, in such time, form, and manner as shall under section 204 be required in order to carry out the requirements of this section.

“(b) Posting on the Internet.—Any written notification under this section shall include, but not be limited to, the posting of the information required under paragraph (1) or (2) (as applicable) of subsection (a) on the Internet site of the Federal agency involved.

“(c) Employee Training.—Each Federal agency shall provide to the employees of such agency training regarding the rights and remedies applicable to such employees under the laws cited in section 201(c).

“(d) Notification of Final Agency Action.—“(1) In general.—Not later than 90 days after the date on which an event described in paragraph (2) occurs with respect to a finding of discrimination (including retaliation), the head of the Federal agency subject to the finding shall provide notice—“(A) on the public internet website of the agency, in a clear and prominent location linked directly from the home page of that website;

“(B) stating that a finding of discrimination (including retaliation) has been made; and

“(C) which shall remain posted for not less than 1 year.

“(2) Events described.—An event described in this paragraph is any of the following:“(A) All appeals of a final action by a Federal agency involving a finding of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) have been exhausted.

“(B) All appeals of a final decision by the Equal Employment Opportunity Commission involving a finding of discrimination (including if the finding included a finding of retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a) have been exhausted.

“(C) A court of jurisdiction issues a final judgment involving a finding of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a).

“(3) Contents.—A notification provided under paragraph (1) with respect to a finding of discrimination (including retaliation) shall—“(A) identify the date on which the finding was made, the date on which each discriminatory act occurred, and the law violated by each such discriminatory act; and

“(B) advise Federal employees of the rights and protections available under the provisions of law covered by paragraphs (1) and (2) of section 201(a).

“SEC. 203. REPORTING REQUIREMENT.“(a) Annual Report.—Subject to subsection (b), not later than 180 days after the end of each fiscal year, each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Reform of the House of Representatives, each committee of Congress with jurisdiction relating to the agency, the Equal Employment Opportunity Commission, and the Attorney General an annual report which shall include, with respect to the fiscal year—“(1) the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged;

“(2) the status or disposition of cases described in paragraph (1);

“(3) the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggregate amount of such reimbursements attributable to the payment of attorneys’ fees, if any;

“(4) the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1);

“(5) the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2));

“(6) a detailed description of—“(A) the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who—“(i) discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or

“(ii) committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2); and

“(B) with respect to each of such laws, the number of employees who are disciplined in accordance with such policy and the specific nature of the disciplinary action taken;

“(7) an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity Commission in compliance with part 1614 of title 29 of the Code of Federal Regulations) including—“(A) an examination of trends;

“(B) causal analysis;

“(C) practical knowledge gained through experience; and

“(D) any actions planned or taken to improve complaint or civil rights programs of the agency; and

“(8) any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.

“(b) First Report.—The 1st report submitted under subsection (a) shall include for each item under subsection (a) data for each of the 5 immediately preceding fiscal years (or, if data are not available for all 5 fiscal years, for each of those 5 fiscal years for which data are available).

“(c) Disciplinary Action Report.—Not later than 120 days after the date on which a Federal agency takes final action, or a Federal agency receives a final decision issued by the Equal Employment Opportunity Commission, involving a finding of discrimination (including retaliation) in violation of a provision of law covered by paragraph (1) or (2) of section 201(a), as applicable, the applicable Federal agency shall submit to the Commission a report stating—“(1) whether disciplinary action has been proposed against a Federal employee as a result of the violation; and

“(2) the reasons for any disciplinary action proposed under paragraph (1).

“SEC. 204. RULES AND GUIDELINES.“(a) Issuance of Rules and Guidelines.—The President (or the designee of the President) shall issue—“(1) rules to carry out this title;

“(2) rules to require that a comprehensive study be conducted in the executive branch to determine the best practices relating to the appropriate disciplinary actions against Federal employees who commit the actions described under clauses (i) and (ii) of section 203(a)(6)(A); and

“(3) based on the results of such study, advisory guidelines incorporating best practices that Federal agencies may follow to take such actions against such employees.

“(b) Agency Notification Regarding Implementation of Guidelines.—Not later than 30 days after the issuance of guidelines under subsection (a), each Federal agency shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a written statement specifying in detail—“(1) whether such agency has adopted and will fully follow such guidelines;

“(2) if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and

“(3) if such agency will not fully follow such guidelines, the reasons for the decision not to fully follow such guidelines and an explanation of the extent to which such agency will not follow such guidelines.

“SEC. 205. CLARIFICATION OF REMEDIES.“Consistent with Federal law, nothing in this title shall prevent any Federal employee, former Federal employee, or applicant for Federal employment from exercising any right otherwise available under the laws of the United States.

“SEC. 206. STUDIES BY GENERAL ACCOUNTING OFFICE [now GOVERNMENT ACCOUNTABILITY OFFICE] ON EXHAUSTION OF ADMINISTRATIVE REMEDIES AND ON ASCERTAINMENT OF CERTAIN DEPARTMENT OF JUSTICE COSTS.“(a) Study on Exhaustion of Administrative Remedies.—“(1) Study.—“(A) In general.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study relating to the effects of eliminating the requirement that Federal employees aggrieved by violations of any of the laws specified under section 201(c) exhaust administrative remedies before filing complaints with the Equal Employment Opportunity Commission.

“(B) Contents.—The study shall include a detailed summary of matters investigated, information collected, and conclusions formulated that lead to determinations of how the elimination of such requirement will—“(i) expedite handling of allegations of such violations within Federal agencies and will streamline the complaint-filing process;

“(ii) affect the workload of the Commission;

“(iii) affect established alternative dispute resolution procedures in such agencies; and

“(iv) affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.

“(2) Report.—Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Equal Employment Opportunity Commission, and the Attorney General a report containing the information required to be included in such study.

“(b) Study on Ascertainment of Certain Costs of the Department of Justice in Defending Discrimination and Whistleblower Cases.—“(1) Study.—Not later than 180 days after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study of the methods that could be used for, and the extent of any administrative burden that would be imposed on, the Department of Justice to ascertain the personnel and administrative costs incurred in defending in each case arising from a proceeding identified under section 201(a)(1) and (2).

“(2) Report.—Not later than 90 days after completion of the study required by paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report containing the information required to be included in the study.

“(c) Studies on Statutory Effects on Agency Operations.—“(1) In general.—Not later than 18 months after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct—“(A) a study on the effects of section 201 on the operations of Federal agencies; and

“(B) a study on the effects of section 13 of the Contract Disputes Act of 1978 (41 U.S.C. 612) [now 41 U.S.C. 7108] on the operations of Federal agencies.

“(2) Contents.—Each study under paragraph (1) shall include, with respect to the applicable statutes of the study—“(A) a summary of the number of cases in which a payment was made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code;

“(B) a summary of the length of time Federal agencies used to complete reimbursements of payments described under subparagraph (A); and

“(C) conclusions that assist in making determinations on how the reimbursements of payments described under subparagraph (A) will affect—“(i) the operations of Federal agencies;

“(ii) funds appropriated on an annual basis;

“(iii) employee relations and other human capital matters;

“(iv) settlements; and

“(v) any other matter determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.

“(3) Reports.—Not later than 90 days after the completion of each study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on each study, respectively, to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Reform] of the House of Representatives, and the Attorney General.

“(d) Study on Administrative and Personnel Costs Incurred by the Department of the Treasury.—“(1) In general.—Not later than 1 year after the date of enactment of this Act [May 15, 2002], the General Accounting Office [now Government Accountability Office] shall conduct a study on the extent of any administrative and personnel costs incurred by the Department of the Treasury to account for payments made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code, as a result of—“(A) this Act; and

“(B) the Contracts Dispute [Contract Disputes] Act of 1978 (41 U.S.C. 601 note [see 41 U.S.C. 7101 et seq.]; Public Law 95–563).

“(2) Report.—Not later than 90 days after the completion of the study under paragraph (1), the General Accounting Office [now Government Accountability Office] shall submit a report on the study to the Speaker of the House of Representatives, the President pro tempore of the Senate, the Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate, the Committee on Government Reform [now Committee on Oversight and Reform] of the House of Representatives, and the Attorney General.

“SEC. 207. COMPLAINT TRACKING.“Not later than 1 year after the date of enactment of the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020 [Jan. 1, 2021], each Federal agency shall establish a system to track each complaint of discrimination arising under section 2302(b)(1) of title 5, United States Code, and adjudicated through the Equal Employment Opportunity process from the filing of a complaint with the Federal agency to resolution of the complaint, including whether a decision has been made regarding disciplinary action as the result of a finding of discrimination.

“SEC. 208. NOTATION IN PERSONNEL RECORD.“If a Federal agency takes an adverse action covered under section 7512 of title 5, United States Code, against a Federal employee for an act of discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a), the agency shall, after all appeals relating to that action have been exhausted, include a notation of the adverse action and the reason for the action in the personnel record of the employee.

“TITLE III—EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DATA DISCLOSURE“SEC. 301. DATA TO BE POSTED BY EMPLOYING FEDERAL AGENCIES.“(a) In General.—Each Federal agency shall post on its public Web site, in the time, form, and manner prescribed under section 303 (in conformance with the requirements of this section), summary statistical data relating to equal employment opportunity complaints filed with such agency by employees or former employees of, or applicants for employment with, such agency.

“(b) Content Requirements.—The data posted by a Federal agency under this section shall include, for the then current fiscal year, the following:“(1) The number of complaints filed with such agency in such fiscal year.

“(2) The number of individuals filing those complaints (including as the agent of a class).

“(3) The number of individuals who filed 2 or more of those complaints.

“(4) The number of complaints (described in paragraph (1)) in which each of the various bases of alleged discrimination is alleged.

“(5) The number of complaints (described in paragraph (1)) in which each of the various issues of alleged discrimination is alleged.

“(6) The average length of time, for each step of the process, it is taking such agency to process complaints (taking into account all complaints pending for any length of time in such fiscal year, whether first filed in such fiscal year or earlier). Average times under this paragraph shall be posted—“(A) for all such complaints,

“(B) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is not requested, and

“(C) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is requested.

“(7) The total number of final agency actions rendered in such fiscal year involving a finding of discrimination and, of that number—“(A) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

“(B) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

“(8) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination—“(A) the number and percentage involving a finding of discrimination based on each of the respective bases of alleged discrimination, and

“(B) of the number specified under subparagraph (A) for each of the respective bases of alleged discrimination—“(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

“(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.

“(9) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination—“(A) the number and percentage involving a finding of discrimination in connection with each of the respective issues of alleged discrimination,

“(B) of the number specified under subparagraph (A) for each of the respective issues of alleged discrimination—“(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

“(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission, and

“(C) with respect to each finding described in subparagraph (A)—“(i) the date of the finding,

“(ii) the affected Federal agency,

“(iii) the law violated, and

“(iv) whether a decision has been made regarding disciplinary action as a result of the finding.

“(10)(A) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the number that were first filed before the start of the then current fiscal year.

“(B) With respect to those pending complaints that were first filed before the start of the then current fiscal year—“(i) the number of individuals who filed those complaints, and

“(ii) the number of those complaints which are at the various steps of the complaint process.

“(C) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the total number of complaints with respect to which the agency violated the requirements of section 1614.106(e)(2) of title 29 of the Code of Federal Regulations (as in effect on July 1, 2000, and amended from time to time) by failing to conduct within 180 days of the filing of such complaints an impartial and appropriate investigation of such complaints.

“(11) Data regarding each class action complaint filed against the agency alleging discrimination (including retaliation), including—“(A) information regarding the date on which each complaint was filed,

“(B) a general summary of the allegations alleged in the complaint,

“(C) an estimate of the total number of plaintiffs joined in the complaint, if known,

“(D) the current status of the complaint, including whether the class has been certified, and

“(E) the case numbers for the civil actions in which discrimination (including retaliation) has been found.

“(c) Timing and Other Requirements.—“(1) Current year data.—Data posted under this section for the then current fiscal year shall include both—“(A) interim year-to-date data, updated quarterly, and

“(B) final year-end data.

“(2) Data for prior years.—The data posted by a Federal agency under this section for a fiscal year (both interim and final) shall include, for each item under subsection (b), such agency’s corresponding year-end data for each of the 5 immediately preceding fiscal years (or, if not available for all 5 fiscal years, for however many of those 5 fiscal years for which data are available).

“SEC. 302. DATA TO BE POSTED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.“(a) In General.—The Equal Employment Opportunity Commission shall post on its public Web site, in the time, form, and manner prescribed under section 303 for purposes of this section, summary statistical data relating to—“(1) hearings requested before an administrative judge of the Commission on complaints described in section 301, and

“(2) appeals filed with the Commission from final agency actions on complaints described in section 301.

“(b) Specific Requirements.—The data posted under this section shall, with respect to the hearings and appeals described in subsection (a), include summary statistical data corresponding to that described in paragraphs (1) through (11) of section 301(b), and shall be subject to the same timing and other requirements as set forth in section 301(c).

“(c) Coordination.—The data required under this section shall be in addition to the data the Commission is required to post under section 301 as an employing Federal agency.

“SEC. 303. RULES.“The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title.

“TITLE IV—PROCESSING AND REFERRAL“SEC. 401. PROCESSING AND RESOLUTION OF COMPLAINTS.“Each Federal agency shall—“(1) be responsible for the fair and impartial processing and resolution of complaints of employment discrimination (including retaliation) prohibited by a provision of law covered by paragraph (1) or (2) of section 201(a); and

“(2) establish a model Equal Employment Opportunity Program that—“(A) is not under the control, either structurally or practically, of the agency’s Office of Human Capital or Office of the General Counsel (or the equivalent);

“(B) is devoid of internal conflicts of interest and ensures fairness and inclusiveness within the agency; and

“(C) ensures the efficient and fair resolution of complaints alleging discrimination (including retaliation).

“SEC. 402. NO LIMITATION ON ADVICE OR COUNSEL.“Nothing in this title shall prevent a Federal agency or a subcomponent of a Federal agency, or the Department of Justice, from providing advice or counsel to employees of that agency (or subcomponent, as applicable) in the resolution of a complaint.

“SEC. 403. HEAD OF PROGRAM SUPERVISED BY HEAD OF AGENCY.“The head of each Federal agency’s Equal Employment Opportunity Program shall report directly to the head of the agency.

“SEC. 404. REFERRALS OF FINDINGS OF DISCRIMINATION.“(a) EEOC Findings of Discrimination.—“(1) In general.—Not later than 30 days after the date on which the Equal Employment Opportunity Commission (referred to in this section as the ‘Commission’) receives, or should have received, a Federal agency report required under section 203(c), the Commission may refer the matter to which the report relates to the Office of Special Counsel if the Commission determines that the Federal agency did not take appropriate action with respect to the finding that is the subject of the report.

“(2) Notifications.—The Commission shall—“(A) notify the applicable Federal agency if the Commission refers a matter to the Office of Special Counsel under paragraph (1); and

“(B) with respect to a fiscal year, include in the Annual Report of the Federal Workforce of the Commission covering that fiscal year—“(i) the number of referrals made under paragraph (1) during that fiscal year; and

“(ii) a brief summary of each referral described in clause (i).

“(b) Referrals to Special Counsel.—The Office of Special Counsel shall accept and review a referral from the Commission under subsection (a)(1) for purposes of pursuing disciplinary action under the authority of the Office against a Federal employee who commits an act of discrimination (including retaliation).

“(c) Notification.—The Office of Special Counsel shall notify the Commission and the applicable Federal agency in a case in which—“(1) the Office of Special Counsel pursues disciplinary action under subsection (b); and

“(2) the Federal agency imposes some form of disciplinary action against a Federal employee who commits an act of discrimination (including retaliation).

“(d) Special Counsel Approval.—A Federal agency may not take disciplinary action against a Federal employee for an alleged act of discrimination (including retaliation) referred by the Commission under this section, except in accordance with the requirements of section 1214(f) of title 5, United States Code.”

[Pub. L. 116–283, div. A, title XI, § 1134(a)(1)(C), (2), Jan. 1, 2021, 134 Stat. 3901, provided that, effective on the date that is 1 year after Jan. 1, 2021, the matter preceding paragraph (1) of section 203(a) of Pub. L. 107–174, set out above, is amended by inserting “(in an electronic format prescribed by the Director of the Office of Personnel Management),” after “an annual report”.]
[Pub. L. 116–283, div. A, title XI, § 1134(a)(2), Jan. 1, 2021, 134 Stat. 3901, provided that: “The amendment made by paragraph (1)(C) [amending section 203(a) of Pub. L. 107–174, set out above] shall take effect on the date that is 1 year after the date of enactment of this Act [Jan. 1, 2021].”
]
[For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.]
[For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security, and section 599A(c)(1) of Title 28, Judiciary and Judicial Procedure.]
[Pub. L. 116–283, div. A, title XI, § 1134(a)(3), Jan. 1, 2021, 134 Stat. 3901, provided that: “Notwithstanding the requirements of section 203(a) of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 [Pub. L. 107–174] (5 U.S.C. 2301 note) [set out above], the report required under such section 203(a) may be submitted in an electronic format, as prescribed by the Director of the Office of Personnel Management, during the period beginning on the date of enactment of this Act [Jan. 1, 2021] and ending on the effective date in paragraph (2) [1 year after the date of enactment of this Act].”
]
[Memorandum of President of the United States, July 8, 2003, 68 F.R. 45155, delegated to Director of Office of Personnel Management authority of President under section 204(a) of Public Law 107–174, set out above.]

§ 2302. Prohibited personnel practices(a)(1) For the purpose of this title, “prohibited personnel practice” means any action described in subsection (b).

(2) For the purpose of this section—(A) “personnel action” means—(i) an appointment;

(ii) a promotion;

(iii) an action under chapter 75 of this title or other disciplinary or corrective action;

(iv) a detail, transfer, or reassignment;

(v) a reinstatement;

(vi) a restoration;

(vii) a reemployment;

(viii) a performance evaluation under chapter 43 of this title or under title 38;

(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;

(x) a decision to order psychiatric testing or examination;

(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and

(xii) any other significant change in duties, responsibilities, or working conditions;

with respect to an employee in, or applicant for, a covered position in an agency, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31;

(B) “covered position” means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action—(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or

(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration;

(C) “agency” means an Executive agency and the Government Publishing Office, but does not include—(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D);

(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

(II) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or

(iii) the Government Accountability Office; and

(D) “disclosure” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—(i) any violation of any law, rule, or regulation; or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—(1) discriminate for or against any employee or applicant for employment—(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));

(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

(B) an evaluation of the character, loyalty, or suitability of such individual;

(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;

(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment;

(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of—(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—(i) any violation (other than a violation of this section) of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or

(C) any disclosure to Congress (including any committee of Congress) by any employee of an agency or applicant for employment at an agency of information described in subparagraph (B) that is—(i) not classified; or

(ii) if classified—(I) has been classified by the head of an agency that is not an element of the intelligence community (as defined by section 3 of the National Security Act of 1947 (50 U.S.C. 3003)); and

(II) does not reveal intelligence sources and methods.11 So in original. The period probably should be a semicolon.

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—(i) with regard to remedying a violation of paragraph (8); or

(ii) other than with regard to remedying a violation of paragraph (8);

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);

(C) cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(D) refusing to obey an order that would require the individual to violate a law, rule, or regulation;

(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;

(11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement;

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title;

(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement—(A) does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or

(B) prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or

(14) access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).

This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.

(c)(1) In this subsection—(A) the term “new employee” means an individual—(i) appointed to a position as an employee on or after the date of enactment of this subsection; and

(ii) who has not previously served as an employee; and

(B) the term “whistleblower protections” means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b).

(2) The head of each agency shall be responsible for—(A) preventing prohibited personnel practices;

(B) complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and

(C) ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including—(i) information with respect to whistleblower protections available to new employees during a probationary period;

(ii) the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and

(iii) the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to—(I) the Special Counsel;

(II) the Inspector General of an agency;

(III) Congress (including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods); or

(IV) another employee of the agency who is designated to receive such a disclosure.

(3) The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed.

(4) The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists.

(5) Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).

(d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under—(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;

(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;

(3) under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), prohibiting discrimination on the basis of sex;

(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or

(5) the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.

(e)(1) For the purpose of this section, the term “veterans’ preference requirement” means any of the following provisions of law:(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.

(B) Sections 943(c)(2) and 1784(c) of title 10.

(C) Section 1308(b) of the Alaska National Interest Lands Conservation Act.

(D) Section 301(c) of the Foreign Service Act of 1980.

(E) Sections 106(f),11 See References in Text note below. 7281(e), and 7802(5) 1 of title 38.

(F) Section 1005(a) of title 39.

(G) Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans’ preference requirement for the purposes of this subsection.

(H) Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

(2) Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).

(f)(1) A disclosure shall not be excluded from subsection (b)(8) because—(A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

(B) the disclosure revealed information that had been previously disclosed;

(C) of the employee’s or applicant’s motive for making the disclosure;

(D) the disclosure was not made in writing;

(E) the disclosure was made while the employee was off duty;

(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or

(G) of the amount of time which has passed since the occurrence of the events described in the disclosure.

(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.

(Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1114; amended Pub. L. 101–12, § 4, Apr. 10, 1989, 103 Stat. 32; Pub. L. 101–474, § 5(d), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 102–378, § 2(5), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 103–94, § 8(c), Oct. 6, 1993, 107 Stat. 1007; Pub. L. 103–359, title V, § 501(c), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103–424, § 5, Oct. 29, 1994, 108 Stat. 4363; Pub. L. 104–197, title III, § 315(b)(2), Sept. 16, 1996, 110 Stat. 2416, Pub. L. 104–201, div. A, title XI, § 1122(a)(1), title XVI, § 1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L. 105–339, § 6(a), (b), (c)(2), Oct. 31, 1998, 112 Stat. 3187, 3188; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 112–199, title I, §§ 101(a), (b)(1)(B), (2)(B), (C), 102–104(b)(1), 105, 112, Nov. 27, 2012, 126 Stat. 1465–1468, 1472; Pub. L. 112–277, title V, § 505(a), Jan. 14, 2013, 126 Stat. 2478; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 114–113, div. J, title II, § 238, Dec. 18, 2015, 129 Stat. 2700; Pub. L. 115–40, § 2, June 14, 2017, 131 Stat. 861; Pub. L. 115–73, title I, §§ 103, 107(a)(1), Oct. 26, 2017, 131 Stat. 1236, 1238; Pub. L. 115–91, div. A, title X, § 1097(b)(1)(B), (c)(1), Dec. 12, 2017, 131 Stat. 1616, 1618; Pub. L. 116–92, div. E, title LVII, § 5721, Dec. 20, 2019, 133 Stat. 2175; Pub. L. 116–283, div. A, title XI, § 1138, Jan. 1, 2021, 134 Stat. 3905.)

Editorial Notes

References in TextSection 1308(b) of the Alaska National Interest Lands Conservation Act, referred to in subsec. (e)(1)(C), is classified to section 3198(b) of Title 16, Conservation.
Section 301(c) of the Foreign Service Act of 1980, referred to in subsec. (e)(1)(D), is classified to section 3941(c) of Title 22, Foreign Relations and Intercourse.
Section 106(f) of title 38, referred to in subsec. (e)(1)(E), was enacted subsequent to the enactment of subsec. (e) of this section.
Section 7802(5) of title 38, referred to in subsec. (e)(1)(E), was redesignated section 7802(e) of title 38 by Pub. L. 108–170, title III, § 304(b)(3), Dec. 6, 2003, 117 Stat. 2059.

Amendments2021—Subsec. (b)(13). Pub. L. 116–283 substituted “agreement—” for “agreement”, designated remainder of existing provisions as subpar. (A), inserted “or the Office of Special Counsel” after “Inspector General”, and added subpar. (B).
2019—Subsec. (b)(8)(C). Pub. L. 116–92, § 5721(1), added subpar. (C).
Subsec. (c)(2)(C)(iii)(III). Pub. L. 116–92, § 5721(2), inserted “(including any committee of Congress with respect to information that is not classified or, if classified, has been classified by the head of an agency that is not an element of the intelligence community and does not reveal intelligence sources and methods)” after “Congress”.
2017—Subsec. (b)(9)(C). Pub. L. 115–91, § 1097(c)(1)(A), inserted “(or any other component responsible for internal investigation or review)” after “Inspector General”.
Subsec. (b)(9)(D). Pub. L. 115–40 struck out “for” after “(D)” and inserted “, rule, or regulation” after “a law”.
Subsec. (b)(14). Pub. L. 115–73, § 103, added par. (14).
Subsecs. (c) to (f). Pub. L. 115–91, § 1097(b)(1)(B), added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.
Pub. L. 115–73, § 107(a)(1), redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c) which read as follows: “The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.”
Subsec. (f)(1)(F), (G). Pub. L. 115–91, § 1097(c)(1)(B)(i), added subpar. (F) and redesignated former subpar. (F) as (G).
Subsec. (f)(2). Pub. L. 115–91, § 1097(c)(1)(B)(ii), added par. (2) and struck out former par. (2) which read as follows: “If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.”
2015—Subsec. (a)(2)(A)(viii). Pub. L. 114–113 inserted “or under title 38” after “chapter 43 of this title”.
2013—Subsec. (a)(2)(C)(ii). Pub. L. 112–277 added cl. (ii) and struck out former cl. (ii) which read as follows:
“(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and
“(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action; or”.
2012—Subsec. (a)(2)(A)(xi), (xii). Pub. L. 112–199, § 104(a), added cl. (xi) and redesignated former cl. (xi) as (xii).
Subsec. (a)(2)(C)(i). Pub. L. 112–199, § 101(b)(1)(B), inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “(b)(8)”.
Subsec. (a)(2)(C)(ii). Pub. L. 112–199, § 105, added cl. (ii) and struck out former cl. (ii) which read as follows: “the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or”.
Subsec. (a)(2)(D). Pub. L. 112–199, § 102, added subpar. (D).
Subsec. (b). Pub. L. 112–199, § 103, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: “This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.”
Subsec. (b)(8)(A)(i). Pub. L. 112–199, § 101(a)(1), substituted “any violation” for “a violation”.
Subsec. (b)(8)(B)(i). Pub. L. 112–199, § 101(a)(2), substituted “any violation (other than a violation of this section)” for “a violation”.
Subsec. (b)(9)(A). Pub. L. 112–199, § 101(b)(2)(B)(i), added subpar. (A) and struck out former subpar. (A) read as follows: “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;”.
Subsec. (b)(9)(B). Pub. L. 112–199, § 101(b)(2)(B)(ii), inserted “(i) or (ii)” after “subparagraph (A)”.
Subsec. (b)(13). Pub. L. 112–199, § 104(b)(1), added par. (13).
Subsec. (c). Pub. L. 112–199, § 112, inserted “, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures” after “chapter 12 of this title”.
Subsec. (f). Pub. L. 112–199, § 101(b)(2)(C), added subsec. (f).
2008—Subsec. (a)(2)(C)(ii). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.
2004—Subsec. (a)(2)(C)(iii). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.
1998—Subsec. (a)(1). Pub. L. 105–339, § 6(c)(2), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For purposes of this title, ‘prohibited personnel practice’ means the following:
“(A) Any action described in subsection (b) of this section.
“(B) Any action or failure to act that is designated as a prohibited personnel action under section 1599c(a) of title 10.”
Subsec. (b)(10) to (12). Pub. L. 105–339, § 6(a), struck out “or” at end of par. (10), added par. (11), and redesignated former par. (11) as (12).
Subsec. (e). Pub. L. 105–339, § 6(b), added subsec. (e).
1996—Subsec. (a)(1). Pub. L. 104–201, § 1615(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For the purpose of this title, ‘prohibited personnel practice’ means any action described in subsection (b) of this section.”
Subsec. (a)(2)(C)(ii). Pub. L. 104–201, § 1122(a)(1), substituted “National Imagery and Mapping Agency” for “Central Imagery Office”.
Subsec. (b)(2). Pub. L. 104–197 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f);”.
1994—Subsec. (a)(2)(A). Pub. L. 103–424, § 5(a)(3), in concluding provisions, inserted before semicolon “, and in the case of an alleged prohibited personnel practice described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in section 9101 of title 31”.
Subsec. (a)(2)(A)(x), (xi). Pub. L. 103–424, § 5(a)(1), (2), added cls. (x) and (xi) and struck out former cl. (x) which read as follows: “any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level;”.
Subsec. (a)(2)(B). Pub. L. 103–424, § 5(b), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “ ‘covered position’ means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—
“(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or
“(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.”
Subsec. (a)(2)(C)(i). Pub. L. 103–424, § 5(c), inserted before semicolon “, except in the case of an alleged prohibited personnel practice described under subsection (b)(8)”.
Subsec. (a)(2)(C)(ii). Pub. L. 103–359 inserted “the Central Imagery Office,” after “Defense Intelligence Agency,”.
Subsec. (c). Pub. L. 103–424, § 5(d), inserted before period at end of first sentence “, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title”.
1993—Subsec. (b)(2). Pub. L. 103–94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—
“(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or
“(B) an evaluation of the character, loyalty, or suitability of such individual;”.
1992—Subsec. (b)(8)(B). Pub. L. 102–378 substituted “Special Counsel” for “Special Counsel of the Merit Systems Protection Board”.
1990—Subsec. (a)(2)(C). Pub. L. 101–474 struck out “, the Administrative Office of the United States Courts,” after “means an Executive agency”.
1989—Subsec. (b)(8). Pub. L. 101–12, § 4(a), in introductory provision inserted “, or threaten to take or fail to take,” after “fail to” and substituted “because of” for “as a reprisal for”, in subpar. (A) substituted “any disclosure” for “a disclosure”, in subpar. (A)(ii) inserted “gross” before “mismanagement”, in subpar. (B) substituted “any disclosure” for “a disclosure”, and in subpar. (B)(ii) inserted “gross” before “mismanagement”.
Subsec. (b)(9). Pub. L. 101–12, § 4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: “take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;”.

Statutory Notes and Related Subsidiaries

Change of Name
“Government Publishing Office” substituted for “Government Printing Office” in subsec. (a)(2)(C) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 2012 AmendmentAmendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

Effective Date of 1996 AmendmentAmendment by section 1122(a)(1) of Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.
Pub. L. 104–197, title III, § 315(c), Sept. 16, 1996, 110 Stat. 2416, provided that: “This section [amending this section and section 3303 of this title] shall take effect 30 days after the date of the enactment of this Act [Sept. 16, 1996].”

Effective Date of 1993 Amendment; Savings ProvisionAmendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Savings ProvisionPub. L. 112–199, title II, § 201, Nov. 27, 2012, 126 Stat. 1475, provided that: “Nothing in this Act [see section 1 of Pub. L. 112–199, set out as a Short Title of 2012 Amendment note under section 101 of this title] shall be construed to imply any limitation on any protections afforded by any other provision of law to employees and applicants.”

Pub. L. 105–339, § 6(d), Oct. 31, 1998, 112 Stat. 3188, provided that: “This section [amending this section and repealing section 1599c of Title 10, Armed Forces] shall be treated as if it had never been enacted for purposes of any personnel action (within the meaning of section 2302 of title 5, United States Code) preceding the date of enactment of this Act [Oct. 31, 1998].”

Agency WebsitesPub. L. 112–199, title I, § 104(b)(2), Nov. 27, 2012, 126 Stat. 1467, provided that: “Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.”

Nondisclosure Policy, Form, or Agreement in Effect Before the Effective DatePub. L. 112–199, title I, § 104(b)(3), Nov. 27, 2012, 126 Stat. 1467, provided that:
“With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) for implementation or enforcement—
“(A) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

“(B) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection [set out as a note above].”

Disclosure of Censorship Related to Research, Analysis, or Technical InformationPub. L. 112–199, title I, § 110, Nov. 27, 2012, 126 Stat. 1471, as amended by Pub. L. 115–73, title I, § 107(a)(2)(C), Oct. 26, 2017, 131 Stat. 1239; Pub. L. 115–91, div. A, title X, § 1097(b)(3)(C), Dec. 12, 2017, 131 Stat. 1618, provided that:
“(a) Definitions.—In this subsection—“(1) the term ‘agency’ has the meaning given under section 2302(a)(2)(C) of title 5, United States Code;

“(2) the term ‘applicant’ means an applicant for a covered position;

“(3) the term ‘censorship related to research, analysis, or technical information’ means any effort to distort, misrepresent, or suppress research, analysis, or technical information;

“(4) the term ‘covered position’ has the meaning given under section 2302(a)(2)(B) of title 5, United States Code;

“(5) the term ‘employee’ means an employee in a covered position in an agency; and

“(6) the term ‘disclosure’ has the meaning given under section 2302(a)(2)(D) of title 5, United States Code.

“(b) Protected Disclosure.—“(1) In general.—Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—“(A) shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if—“(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—     “(I) any violation of law, rule, or regulation; or

     “(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

“(ii) such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and

“(B) shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if—“(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—     “(I) any violation of law, rule, or regulation; or

     “(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

“(ii) the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods.

“(2) Disclosures not excluded.—A disclosure shall not be excluded from paragraph (1) for any reason described under section 2302(f)(1) or (2) of title 5, United States Code.

“(3) Rule of construction.—Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.”

Nondisclosure Policies, Forms, and AgreementsPub. L. 112–199, title I, § 115, Nov. 27, 2012, 126 Stat. 1472, provided that:
“(a) In General.—“(1) Requirement.—Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’.

“(2) Agency websites.—Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.

“(3) Enforceability.—“(A) In general.—Any nondisclosure policy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

“(B) Nondisclosure policy, form, or agreement in effect before the effective date.—With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under paragraph (1) for implementation or enforcement—“(i) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

“(ii) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2).

“(b) Persons Other Than Government Employees.—Notwithstanding subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.”

Executive Documents

Federal Benefits and Non-Discrimination
Memorandum of President of the United States, June 17, 2009, 74 F.R. 29393, provided:
Memorandum for the Heads of Executive Departments and Agencies
Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners. Leading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex. Executive departments and agencies, however, may only provide benefits on that basis if they have legal authorization to do so. My Administration is not authorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Administration, in consultation with the Secretary of State, who oversees our Foreign Service employees, and the Director of the Office of Personnel Management, who oversees human resource management for our civil service employees, has identified areas in which statutory authority exists to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex. Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and the brightest employees.
I hereby request the following:
Section 1. Extension of Identified Benefits. The Secretary of State and the Director of the Office of Personnel Management shall, in consultation with the Department of Justice, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.
Sec. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the Office of Personnel Management, who, in consultation with the Department of Justice, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.
Sec. 3. Promoting Compliance with Existing Law Requiring Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The Office of Personnel Management shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.
Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) Authority granted by law or Executive Order to an agency, or the head thereof; or
(ii) Functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 5. Publication. The Director of the Office of Personnel Management is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Extension of Benefits to Same-Sex Domestic Partners of Federal Employees
Memorandum of President of the United States, June 2, 2010, 75 F.R. 32247, provided:
Memorandum for the Heads of Executive Departments and Agencies
For far too long, many of our Government’s hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. That is why, last June, I directed the heads of executive departments and agencies (agencies), in consultation with the Office of Personnel Management (OPM), to conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families. Although legislative action is necessary to provide full equality to LGBT Federal employees, the agencies have identified a number of benefits that can be extended under existing law. OPM, in consultation with the Department of Justice, has provided me with a report recommending that all of the identified benefits be extended.
Accordingly, I hereby direct the following:
Section 1. Immediate Actions To Extend Benefits. Agencies should immediately take the following actions, consistent with existing law, in order to extend benefits to the same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees:
(a) The Director of OPM should take appropriate action to:
(i) clarify that the children of employees’ same-sex domestic partners fall within the definition of “child” for purposes of Federal child-care subsidies, and, where appropriate, for child-care services;
(ii) clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as “family members”;
(iii) issue a proposed rule that would clarify that employees’ same-sex domestic partners qualify as “family members” for purposes of noncompetitive appointments made pursuant to Executive Order 12721 of July 30, 1990;
(iv) issue a proposed rule that would add a Federal retiree’s same-sex domestic partner to the list of individuals presumed to have an insurable interest in the employee pursuant to 5 U.S.C. 8339(k)(1), 8420;
(v) clarify that under appropriate circumstances, employees’ same-sex domestic partners and their children qualify as dependents for purposes of evacuation payments made under 5 U.S.C. 5522–5523; Folio: 1632 [sic]
(vi) amend its guidance on implementing President Clinton’s April 11, 1997, memorandum to heads of executive departments and agencies on “Expanded Family and Medical Leave Policies” to specify that the 24 hours of unpaid leave made available to Federal employees in connection with (i) school and early childhood educational activities; (ii) routine family medical purposes; and (iii) elderly relatives’ health or care needs, may be used to meet the needs of an employee’s same-sex domestic partner or the same-sex domestic partner’s children; and
(vii) clarify that employees’ same-sex domestic partners qualify as dependents for purposes of calculating the extra allowance payable under 5 U.S.C. 5942a to assist employees stationed on Johnston Island, subject to any limitations applicable to spouses.
(b) The Administrator of General Services should take appropriate action to amend the definitions of “immediate family” and “dependent” appearing in the Federal Travel Regulations, 41 C.F.R. Chs. 300–304, to include same-sex domestic partners and their children, so that employees and their domestic partners and children can obtain the full benefits available under applicable law, including certain travel, relocation, and subsistence payments.
(c) All agencies offering any of the benefits specified by OPM in implementing guidance under section 3 of this memorandum, including credit union membership, access to fitness facilities, and access to planning and counseling services, should take all appropriate action to provide the same level of benefits that is provided to employees’ spouses and their children to employees’ same-sex domestic partners and their children.
(d) All agencies with authority to provide benefits to employees outside of the context of title 5, United States Code should take all appropriate actions to ensure that the benefits being provided to employees’ spouses and their children are also being provided, at an equivalent level wherever permitted by law, to their employees’ same-sex domestic partners and their children.
Sec. 2. Continuing Obligation To Provide New Benefits. In the future, all agencies that provide new benefits to the spouses of Federal employees and their children should, to the extent permitted by law, also provide them to the same-sex domestic partners of their employees and those same-sex domestic partners’ children. This section applies to appropriated and nonappropriated fund instrumentalities of such agencies.
Sec. 3. Monitoring and Guidance. The Director of OPM shall monitor compliance with this memorandum, and may instruct agencies to provide the Director with reports on the status of their compliance, and prescribe the form Folio: 1633 [sic] and manner of such reports. The Director of OPM shall also issue guidance to ensure consistent and appropriate implementation.
Sec. 4. Reporting. By April 1, 2011, and annually thereafter, the Director of OPM shall provide the President with a report on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.
Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:
(i) authority granted by law or Executive Order to an agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 6. Publication. The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

§ 2303. Prohibited personnel practices in the Federal Bureau of Investigation(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—(1) made—(A) in the case of an employee, to a supervisor in the direct chain of command of the employee, up to and including the head of the employing agency;

(B) to the Inspector General;

(C) to the Office of Professional Responsibility of the Department of Justice;

(D) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

(E) to the Inspection Division of the Federal Bureau of Investigation;

(F) as described in section 7211;

(G) to the Office of Special Counsel; or

(H) to an employee designated by any officer, employee, office, or division described in subparagraphs (A) through (G) for the purpose of receiving such disclosures; and

(2) which the employee or applicant reasonably believes evidences—(A) any violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

For the purpose of this subsection, “personnel action” means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character).

(b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section.

(c) The President shall provide for the enforcement of this section in a manner consistent with applicable provisions of sections 1214 and 1221 of this title.

(Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1117; amended Pub. L. 101–12, § 9(a)(1), Apr. 10, 1989, 103 Stat. 34; Pub. L. 114–302, § 2, Dec. 16, 2016, 130 Stat. 1516.)

Editorial Notes
Amendments2016—Subsec. (a). Pub. L. 114–302 substituted “an employee in, or applicant for, a position in the Bureau as a reprisal for a disclosure of information—” for “any employee of the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose) which the employee or applicant reasonably believes evidences—” in introductory provisions, added pars. (1) and (2), and struck out former pars. (1) and (2) which read as follows:
“(1) a violation of any law, rule, or regulation, or
“(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety”.
1989—Subsec. (c). Pub. L. 101–12 substituted “applicable provisions of sections 1214 and 1221” for “the provisions of section 1206”.

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentAmendment by Pub. L. 101–12 effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title.

Whistleblower Protections for Federal Bureau of Investigation ContractorsPub. L. 115–118, title I, § 110(b), Jan. 19, 2018, 132 Stat. 16, provided that:
“(1) In general.—Any employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to a contractor employee as a reprisal for a disclosure of information—“(A) made—“(i) to a supervisor in the direct chain of command of the contractor employee;

“(ii) to the Inspector General;

“(iii) to the Office of Professional Responsibility of the Department of Justice;

“(iv) to the Office of Professional Responsibility of the Federal Bureau of Investigation;

“(v) to the Inspection Division of the Federal Bureau of Investigation;

“(vi) to the Office of Special Counsel; or

“(vii) to an employee designated by any officer, employee, office, or division described in clauses (i) through (vii) for the purpose of receiving such disclosures; and

“(B) which the contractor employee reasonably believes evidences—“(i) any violation of any law, rule, or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or

“(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

“(2) Actions by request.—A personnel action under paragraph (1) is prohibited even if the action is undertaken at the request of an official of the Federal Bureau of Investigation, unless the request takes the form of a nondiscretionary directive and is within the authority of the official making the request.

“(3) Regulations.—The Attorney General shall prescribe regulations to ensure that a personnel action described in paragraph (1) shall not be taken against a contractor employee of the Federal Bureau of Investigation as a reprisal for any disclosure of information described in subparagraph (A) of such paragraph.

“(4) Enforcement.—The President shall provide for the enforcement of this subsection.

“(5) Definitions.—In this subsection:“(A) The term ‘contractor employee’ means an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor, of the Federal Bureau of Investigation.

“(B) The term ‘personnel action’ means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of title 5, United States Code, with respect to a contractor employee.”

Executive Documents

Delegation of Responsibilities Concerning FBI Employees Under the Civil Service Reform Act of 1978
Memorandum of President of the United States, Apr. 14, 1997, 62 F.R. 23123, provided:
Memorandum for the Attorney General
By the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Attorney General the functions concerning employees of the Federal Bureau of Investigation vested in the President by section 101(a) of the Civil Service Reform Act of 1978 (Public Law 95–454), as amended by the Whistleblower Protection Act of 1989 (Public Law 101–12), and codified at section 2303(c) of title 5, United States Code, and direct the Attorney General to establish appropriate processes within the Department of Justice to carry out these functions. Not later than March 1 of each year, the Attorney General shall provide a report to the President stating the number of allegations of reprisal received during the preceding calendar year, the disposition of each allegation resolved during the preceding calendar year, and the number of unresolved allegations pending as of the end of the calendar year.
All of the functions vested in the President by section 2303(c) of title 5, United States Code, and delegated to the Attorney General, may be redelegated, as appropriate, provided that such functions may not be redelegated to the Federal Bureau of Investigation.
You are authorized and directed to publish this memorandum in the Federal Register.

William J. Clinton.

§ 2304. Prohibited personnel practices affecting the Transportation Security Administration(a) In General.—Notwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by—(1) the provisions of section 2302(b)(1), (8), and (9);

(2) any provision of law implementing section 2302(b)(1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and

(3) any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2).

(b) Rule of Construction.—Nothing in this section shall be construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might otherwise be entitled under law.

(Added Pub. L. 112–199, title I, § 109(a)(2), Nov. 27, 2012, 126 Stat. 1470.)

Editorial Notes
Prior ProvisionsA prior section 2304 was renumbered section 2305 of this title.

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 112–199, title I, § 109(c), Nov. 27, 2012, 126 Stat. 1471, provided that: “The amendments made by this section [enacting this section and renumbering sections 2304 and 2305 of this title as sections 2305 and 2306, respectively, of this title] shall take effect on the date of enactment of this section [Nov. 27, 2012].”

§ 2305. Responsibility of the Government Accountability Office
If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the Government Accountability Office shall conduct audits and reviews to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive service and to assess the effectiveness and soundness of Federal personnel management.
(Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1118, § 2304; amended Pub. L. 102–378, § 2(6), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 104–66, title II, § 2181(e), Dec. 21, 1995, 109 Stat. 732; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; renumbered § 2305, Pub. L. 112–199, title I, § 109(a)(1), Nov. 27, 2012, 126 Stat. 1470.)

Editorial Notes
Prior ProvisionsA prior section 2305 was renumbered section 2306 of this title.

Amendments2012—Pub. L. 112–199 renumbered section 2304 of this title as this section.
2004—Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in section catchline and text.
1995—Pub. L. 104–66 struck out subsec. (a) designation before “If requested by” and struck out subsec. (b) which read as follows: “The General Accounting Office shall prepare and submit an annual report to the President and the Congress on the activities of the Merit Systems Protection Board and the Office of Personnel Management. The report shall include a description of—
“(1) significant actions taken by the Board to carry out its functions under this title; and
“(2) significant actions of the Office of Personnel Management, including an analysis of whether or not the actions of the Office are in accord with merit system principles and free from prohibited personnel practices.”
1992—Subsec. (b). Pub. L. 102–378 substituted “The” for “the” at beginning of first sentence.

§ 2306. Coordination with certain other provisions of law
No provision of this chapter, or action taken under this chapter, shall be construed to impair the authorities and responsibilities set forth in section 102 of the National Security Act of 1947 (61 Stat. 495; 50 U.S.C. 403),11 See References in Text note below. the Central Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following),1 the Act entitled “An Act to provide certain administrative authorities for the National Security Agency, and for other purposes”, approved May 29, 1959 (73 Stat. 63; 50 U.S.C. 402 note),1 and the Act entitled “An Act to amend the Internal Security Act of 1950”, approved March 26, 1964 (78 Stat. 168; 50 U.S.C. 831–835).
(Added Pub. L. 95–454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1118, § 2305; renumbered § 2306, Pub. L. 112–199, title I, § 109(a)(1), Nov. 27, 2012, 126 Stat. 1470.)

Editorial Notes

References in TextThe National Security Act of 1947, referred to in text, is act July 26, 1947, ch. 343, 61 Stat. 495, which was formerly classified principally to chapter 15 (§ 401 et seq.) of Title 50, War and National Defense, prior to editorial reclassification in chapter 44 (§ 3001 et seq.) of Title 50. Section 102 of the Act was repealed by Pub. L. 104–293, title VIII, § 805(a), Oct. 11, 1996, 110 Stat. 3477, another section 102 was repealed by Pub. L. 108–458, title I, §§ 1011(a), 1097(a), Dec. 17, 2004, 118 Stat. 3643, 3698, and subsequently another section 102, as added by Pub. L. 108–458, title I, §1011(a), Dec. 17, 2004, 118 Stat. 3644, was classified to section 403 of Title 50 prior to editorial reclassification to section 3023 of Title 50. For complete classification of this Act to the Code, see Tables.
The Central Intelligence Agency Act of 1949, referred to in text, is act June 20, 1949, ch. 227, 63 Stat. 208, which was formerly classified generally to section 403a et seq. of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified generally to chapter 46 (§ 3501 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.
The Act entitled “An Act to provide certain administrative authorities for the National Security Agency, and for other purposes”, approved May 29, 1959, referred to in text, is Pub. L. 86–36, May 29, 1959, 73 Stat. 63, which was formerly set out as a note under section 402 of Title 50, War and National Defense, prior to editorial reclassification in Title 50, and is now classified generally to chapter 47 (§ 3601 et seq.) of Title 50. For complete classification of this Act to the Code, see Tables.
The Act entitled “An Act to amend the Internal Security Act of 1950”, approved March 26, 1964, referred to in text, is act Sept. 23, 1950, ch. 1024, title III, as added Mar. 26, 1964, Pub. L. 88–290, 78 Stat. 168, which is classified principally to subchapter III (§ 831 et seq.) of chapter 23 of Title 50. For complete classification of this Act to the Code, see Tables.

Amendments2012—Pub. L. 112–199 renumbered section 2305 of this title as this section.

[§ 2307. Repealed. Pub. L. 115–91, div. A, title X, § 1097(b)(1)(A), Dec. 12, 2017, 131 Stat. 1616]

Section, added Pub. L. 115–73, title I, § 107(b), Oct. 26, 2017, 131 Stat. 1239, related to information on whistleblower protections and agency responsibilities.

CHAPTER 29—COMMISSIONS, OATHS, RECORDS, AND REPORTS

SUBCHAPTER I—COMMISSIONS, OATHS, AND RECORDS

Sec.

2901.Commission of an officer.

2902.Commission; where recorded.

2903.Oath; authority to administer.

2904.Oath; administered without fees.

2905.Oath; renewal.

2906.Oath; custody.

SUBCHAPTER II—REPORTS

2951.Reports to the Office of Personnel Management.

2952.Time of making annual reports.

2953.Reports to Congress on additional employee requirements.

2954.Information to committees of Congress on request.

Editorial Notes
Amendments1978—Pub. L. 95–454, title IX, § 906(a)(16), Oct. 13, 1978, 92 Stat. 1226, substituted “Office of Personnel Management” for “Civil Service Commission” in item 2951.

SUBCHAPTER I—COMMISSIONS, OATHS, AND RECORDS
§ 2901. Commission of an officer
The President may make out and deliver, after adjournment of the Senate, the commission of an officer whose appointment has been confirmed by the Senate.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 411.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 10.R.S. § 1773.

The words “confirmed by” are substituted for “advised and consented to”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 2902. Commission; where recorded(a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President.

(b) The commission of an officer in the civil service or uniformed services under the control of the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Defense, the Secretary of a military department, the Secretary of the Interior, the Secretary of Homeland Security, or the Secretary of the Treasury shall be made out and recorded in the department in which he is to serve under the seal of that department. The departmental seal may not be affixed to the commission before the commission has been signed by the President.

(c) The commissions of judicial officers and United States attorneys and marshals, appointed by the President, by and with the advice and consent of the Senate, and other commissions which before August 8, 1888, were prepared at the Department of State on the requisition of the Attorney General, shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General. The departmental seal may not be affixed to the commission before the commission has been signed by the President.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 411; Pub. L. 94–183, § 2(3), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 109–241, title IX, § 902(a)(2), July 11, 2006, 120 Stat. 566.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)4 U.S.C. 42 (as applicable to civil commissions).[None.]
(b)5 U.S.C. 11.Mar. 3, 1875, ch. 131, § 14, 18 Stat. 420.
  Mar. 28, 1896, ch. 73, 29 Stat. 75.
  Mar. 3, 1905, ch. 1422, 33 Stat. 990.
(c)5 U.S.C. 12.Aug. 8, 1888, ch. 786, 25 Stat. 387.

In subsection (a), the words “Except as provided by subsections (b) and (c) of this section,” are added on authority of former sections 11 and 12, which are codified in subsections (b) and (c) of this section. The words “the commission of an officer” are substituted for “all civil commissions for officers of the United States” because of the definition of “officer” in section 2104. The words “by the President” are coextensive with and substituted for “by the President, by and with the advice and consent of the Senate, or by the President alone”.
In subsection (b), the words “officer in the civil service or uniformed services” are substituted for “officer” because of the definition of “officer” in section 2104. The words “direction and” are omitted as included within “the control”. The words “the Secretary of Defense” are added on authority of the Acts of July 26, 1947, ch. 343, § 305(a), 61 Stat. 508, and Aug. 10, 1949, ch. 412, § 12(g), 63 Stat. 591. The words “the Secretary of a military department” are substituted for “the Secretary of War, the Secretary of the Navy” (appearing in the Act of Mar. 28, 1896) because of the definition of “military department” in section 102. The title of the Secretary of War was changed to Secretary of the Army by the Act of July 26, 1947, ch. 343, § 205, 61 Stat. 501. “Secretary of the Air Force” is included on authority of the Act of July 26, 1947, ch. 343, § 207(a), (f), 61 Stat. 502. The words “Secretary of Commerce” are substituted for “Secretary of Commerce and Labor” on authority of the Act of Mar. 4, 1913, ch. 141, § 1, 37 Stat. 736. The words “under the departmental seal” are substituted for “and the departmental seal affixed thereto”. The words “any laws to the contrary notwithstanding” are omitted as unnecessary. The last sentence of section 14 of the Act of Mar. 3, 1875, is omitted as executed.
In subsection (c), the words “and shall be” and “any laws to the contrary notwithstanding” are omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2006—Subsec. (b). Pub. L. 109–241 inserted “the Secretary of Homeland Security,” after “the Secretary of the Interior,”.
1975—Subsec. (b). Pub. L. 94–183 struck out “the Postmaster General,” after “under the control of”.

§ 2903. Oath; authority to administer(a) The oath of office required by section 3331 of this title may be administered by an individual authorized by the laws of the United States or local law to administer oaths in the State, District, or territory or possession of the United States where the oath is administered.

(b) An employee of an Executive agency designated in writing by the head of the Executive agency, or the Secretary of a military department with respect to an employee of his department, may administer—(1) the oath of office required by section 3331 of this title, incident to entrance into the executive branch; or

(2) any other oath required by law in connection with employment in the executive branch.

(c) An oath authorized or required under the laws of the United States may be administered by—(1) the Vice President; or

(2) an individual authorized by local law to administer oaths in the State, District, or territory or possession of the United States where the oath is administered.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 411.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 18.R.S. § 1758.
(b)5 U.S.C. 16a(a) (less 1st 9 words after last comma).June 26, 1943, ch. 145, § 206 (less 1st 9 words after last comma), 57 Stat. 196.
(c)5 U.S.C. 16a(b).Sept. 30, 1961, Pub. L. 87–332 (par. under “General Provision”), 75 Stat. 743.
 5 U.S.C. 92a.July 3, 1926, ch. 752, 44 Stat. 830.

In subsection (b), the words “On and after June 26, 1943” are omitted as executed, and the word “officer” is omitted as included in “employee”. The words “Executive agency” are coextensive with and substituted for “executive departments or independent establishments, including any agency the majority of the stock of which is owned by the Government of the United States” because of the definition of “Executive agency” in section 105. The words “or the Secretary of a military department with respect to an employee of his department” are inserted to preserve the application of the source law. 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 law for this section, 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 “of the Federal Government” and “and to have the same force and effect as oaths administered by officers having seals” are omitted as unnecessary.
In subsection (c), the word “Constitution” is omitted because “laws”, as used in this title, encompasses the Constitution. In subsection (c)(1), the words “of the United States” are omitted as unnecessary. In subsection (c)(2), the words “an individual authorized by local law to administer oaths in the State, District, or territory, or possession of the United States where the oath is administered” are coextensive with and substituted for “notaries public duly appointed in any State, District, or Territory of the United States, by clerks and prothonotaries of courts of record of any such State, District, or Territory, by the deputies of such clerks and prothonotaries, and by all magistrates authorized by the laws of or pertaining to any such State, District, or Territory to administer oaths”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 2904. Oath; administered without fees
An employee of an Executive agency who is authorized to administer the oath of office required by section 3331 of this title, or any other oath required by law in connection with employment in the executive branch, may not charge or receive a fee or pay for administering the oath.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 16a(a) (1st 9 words after last comma).June 26, 1943, ch. 145, § 206 (1st 9 words after last comma), 57 Stat. 196.
  Sept. 30, 1961, Pub. L. 87–332 (so much of par. under “General Provision” as inserted “(a)”), 75 Stat. 743.
 5 U.S.C. 20.Aug. 29, 1890, ch. 820, § 1 (2d sentence under “Fourth Auditor’s Office”), 26 Stat. 371.

The section is restated to combine former sections 16a(a) (1st 9 words after last comma) and 20. The prohibition is restated in positive form. The words “officer” and “clerk” are omitted as included in “employee”. Reference to oaths taken on promotion is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 2905. Oath; renewal(a) An employee of an Executive agency or an individual employed by the government of the District of Columbia who, on original appointment, subscribed to the oath of office required by section 3331 of this title is not required to renew the oath because of a change in status so long as his service is continuous in the agency in which he is employed, unless, in the opinion of the head of the Executive agency, the Secretary of a military department with respect to an employee of his department, or the Commissioners of the District of Columbia, the public interest so requires.

(b) An individual who, on appointment as an employee of a House of Congress, subscribed to the oath of office required by section 3331 of this title is not required to renew the oath so long as his service as an employee of that House of Congress is continuous.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 17b.Aug. 14, 1937, ch. 624, 50 Stat. 640.Nov. 22, 1943, ch. 303, 57 Stat. 591.
(b)5 U.S.C. 17c.Mar. 28, 1955, ch. 17, 69 Stat. 14.

In subsection (a), the word “civilian” is omitted as unnecessary because of the definition of “employee” in section 2105. The words “Executive agency” are coextensive with and substituted for “executive departments and independent establishments of the United States” because of the definition of “Executive agency” in section 105. The words “the Secretary of a military department with respect to an employee of his department” are inserted to preserve the application of the source law. 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 law for this section, 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.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 2906. Oath; custody
The oath of office taken by an individual under section 3331 of this title shall be delivered by him to, and preserved by, the House of Congress, agency, or court to which the office pertains.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 21.R.S. § 1759.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER II—REPORTS
§ 2951. Reports to the Office of Personnel Management
The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, that—(1) the appointing authority notify the Office of Personnel Management in writing of the following actions and their dates as to each individual selected for appointment in the competitive service from among those who have been examined—(A) appointment and residence of appointee;

(B) separation during probation;

(C) transfer;

(D) resignation; and

(E) removal; and

(2) the Office keep records of these actions.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 412; Pub. L. 95–454, title IX, § 906(a)(2), (3), (16), Oct. 13, 1978, 92 Stat. 1224, 1226.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 633(2)8 (less last sentence).Jan. 16, 1883, ch. 27, § 2(2)8 (less last sentence), 22 Stat. 404.

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302.
In paragraph (1), the word “authority” is substituted for “power”. The words “or employment” are omitted as included within “appointment”.
In paragraph (1)(B), the words “separation during probation” are substituted for “of the rejection of any such person after probation”. The words “rejection . . . after probation” refer to a rejection, i.e., separation, after a portion of the probationary period has been served but before the end of the probationary period. This is so because an individual can be rejected only during the probationary period. After he has completed the probationary period, he can be removed only under procedures governing removals from the competitive service, and removals of this nature are covered by paragraph (E).
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454, § 906(a)(16), substituted “Office of Personnel Management” for “Civil Service Commission” in section catchline.
Pars. (1), (2). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 2952. Time of making annual reports
Except when a different time is specifically prescribed by statute, the head of each Executive department or military department shall make the annual reports, required to be submitted to Congress, at the beginning of each regular session of Congress. The reports shall cover the transactions of the preceding year.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 106.R.S. § 195.

The words “Executive department” are substituted for “department” as the definition of “department” applicable to this section is coextensive with the definition of “Executive department” in section 101.
The words “or military department” are inserted to preserve the application of the source law. 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 law for this section, 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.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, 201(d), as added Aug. 10, 1949, ch. 412, § 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.

§ 2953. Reports to Congress on additional employee requirements(a) Each report, recommendation, or other communication, of an official nature, of an Executive agency which—(1) relates to pending or proposed legislation which, if enacted, will entail an estimated annual expenditure of appropriated funds in excess of $1,000,000;

(2) is submitted or transmitted to Congress or a committee thereof in compliance with law or on the initiative of the appropriate authority of the executive branch; and

(3) officially proposes or recommends the creation or expansion, either by action of Congress or by administrative action, of a function, activity, or authority of the Executive agency to be in addition to those functions, activities, and authorities thereof existing when the report, recommendation, or other communication is so submitted or transmitted;

shall contain a statement, concerning the Executive agency, for each of the first 5 fiscal years during which each additional or expanded function, activity, or authority so proposed or recommended is to be in effect, setting forth the following information—
(A) the estimated maximum additional—(i) man-years of civilian employment, by general categories of positions;

(ii) expenditures for personal services; and

(iii) expenditures for all purposes other than personal services;

which are attributable to the function, activity, or authority and which will be required to be effected by the Executive agency in connection with the performance thereof; and

(B) such other statement, discussion, explanation, or other information as is considered advisable by the appropriate authority of the executive branch or that is required by Congress or a committee thereof.

(b) Subsection (a) of this section does not apply to—(1) the Central Intelligence Agency;

(2) a Government controlled corporation; or

(3) the Government Accountability Office.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 642a.Jan. 16, 1883, ch. 27, § 11; added July 25, 1956, ch. 730, § 1, 70 Stat. 652.

In subsection (a), the words, “Executive agency” are substituted for “department, agency, or independent establishment of the executive branch of the Federal Government (including any corporation wholly owned by the United States)” in view of the definition of “Executive agency” in section 105. The exception of “a Government controlled corporation” is subsection (b) (2) is added to preserve the application to corporations wholly owned by the United States.
The exception of “the General Accounting Office” in subsection (b)(3) is added to preserve application to the executive branch.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2004—Subsec. (b)(3). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

§ 2954. Information to committees of Congress on request
An Executive agency, on request of the Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 413; Pub. L. 103–437, § 3(b), Nov. 2, 1994, 108 Stat. 4581.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 105a.May 29, 1928, ch. 901, § 2, 45 Stat. 996.

The words “Executive agency” are substituted for “executive department and independent establishment” in view of the definition of “Executive agency” in section 105.
The words “Committee on Government Operations of the House of Representatives” are substituted for “Committee on Expenditures in the Executive Departments of the House of Representatives” on authority of H. Res. 647 of the 82d Congress, adopted July 3, 1952.
The words “Committee on Government Operations of the Senate” are substituted for “Committee on Expenditures in the Executive Departments of the Senate” on authority of S. Res. 280 of the 82d Congress, adopted Mar. 3, 1952.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1994—Pub. L. 103–437 substituted “Committee on Governmental Affairs of the Senate” for “Committee on Government Operations of the Senate”.

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Operations of House of Representatives treated as referring to Committee on Government Reform and Oversight of House of Representatives by section 1(a) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Subpart B—Employment and Retention
CHAPTER 31—AUTHORITY FOR EMPLOYMENT

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

Sec.

3101.General authority to employ.

3102.Employment of personal assistants for handicapped employees, including blind and deaf employees.

3103.Employment at seat of Government only for services rendered.

3104.Employment of specially qualified scientific and professional personnel.

3105.Appointment of administrative law judges.

3106.Employment of attorneys; restrictions.

3107.Employment of publicity experts; restrictions.

3108.Employment of detective agencies; restrictions.

3109.Employment of experts and consultants; temporary or intermittent.

3110.Employment of relatives; restrictions.

3111.Acceptance of volunteer service.

3111a.Federal internship programs.

3112.Disabled veterans; noncompetitive appointment.

3113.Restriction on reemployment after conviction of certain crimes.

3114.Appointment of candidates to positions in the competitive service by the Securities and Exchange Commission.11 So in original. Does not conform to section catchline.

3115.Expedited hiring authority for college graduates; competitive service 22 So in original. Probably should be followed by a period.

3116.Expedited hiring authority for post-secondary students; competitive service 2

SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE

3131.The Senior Executive Service.

3132.Definitions and exclusions.

3133.Authorization of positions; authority for appointment.

3134.Limitations on noncareer and limited appointments.

[3135.Repealed.]

3136.Regulations.

SUBCHAPTER III—THE FEDERAL BUREAU OF INVESTIGATION AND DRUG ENFORCEMENT ADMINISTRATION SENIOR EXECUTIVE SERVICE

3151.The Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

3152.Limitation on pay.

SUBCHAPTER IV—TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE ORDER

3161.Employment and compensation of employees.

SUBCHAPTER V—PRESIDENTIAL INNOVATION FELLOWS PROGRAM

3171.Presidential Innovation Fellows Program.

3172.Presidential Innovation Fellows Program Advisory Board.

Editorial Notes
Amendments2018—Pub. L. 115–232, div. A, title XI, § 1108(b), Aug. 13, 2018, 132 Stat. 2009, added items 3115 and 3116.
2017—Pub. L. 115–1, § 2(b), Jan. 20, 2017, 131 Stat. 5, added subchapter V heading and items 3171 and 3172.
2011—Pub. L. 112–81, div. A, title XI, § 1109(b), Dec. 31, 2011, 125 Stat. 1615, added item 3111a.
2010—Pub. L. 111–203, title IX, § 929G(b), July 21, 2010, 124 Stat. 1856, added item 3114 and struck out former item 3114 “Appointment of accountants, economists, and examiners by the Securities and Exchange Commission”.
2003—Pub. L. 108–44, § 2(b), July 3, 2003, 117 Stat. 843, added item 3114.
2000—Pub. L. 106–398, § 1 [[div. A], title XI, § 1101(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–310, added subchapter IV heading and item 3161.
1997—Pub. L. 105–61, title VI, § 638(b), Oct. 10, 1997, 111 Stat. 1317, added item 3113.
1995—Pub. L. 104–66, title II, § 2181(a)(2), Dec. 21, 1995, 109 Stat. 732, struck out item 3135 “Biennial report”.
1988—Pub. L. 100–325, § 1(b), May 30, 1988, 102 Stat. 581, added subchapter III heading and items 3151 and 3152.
1980—Pub. L. 96–523, § 1(b), Dec. 12, 1980, 94 Stat. 3040, substituted “personal assistants for handicapped employees, including blind and” for “reading assistants for blind employees and interpreting assistants for” in item 3102.
1978—Pub. L. 95–454, title III, §§ 301(b), 302(b)(1), 307(b)(3), title IV, § 402(c), Oct. 13, 1978, 92 Stat. 1145, 1146, 1148, 1160, added heading for subchapter I, substituted “reading assistants for blind employees and interpreting assistants for deaf employees” for “readers for blind employees” in item 3102, and added items 3111, 3112, heading for subchapter II, and items 3131 to 3136.
Pub. L. 95–251, § 2(c)(2), Mar. 27, 1978, 92 Stat. 184, substituted “administrative law judges” for “hearing examiners” in item 3105.
1967—Pub. L. 90–206, title II, § 221(b), Dec. 16, 1967, 81 Stat. 640, added item 3110.

SUBCHAPTER I—EMPLOYMENT AUTHORITIES

Editorial Notes
Amendments1979—Pub. L. 96–54, § 2(a)(10), Aug. 14, 1979, 93 Stat. 381, added heading for subchapter I.

§ 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

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 43.R.S. § 169.June 26, 1930, ch. 618, 46 Stat. 817.
 5 U.S.C. 514d (2d par.).Sept. 21, 1944, ch. 412, § 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, § 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, § 201(d), as added Aug. 10, 1949, ch. 412, § 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.

Statutory Notes and Related Subsidiaries
Reports on Political Appointees Appointed to Nonpolitical Permanent PositionsPub. L. 114–136, § 4, Mar. 18, 2016, 130 Stat. 305, provided that:
“(a) Definitions.—In this section—“(1) the term ‘agency’ has the meaning given the term ‘Executive agency’ in section 105 of title 5, United States Code;

“(2) the term ‘covered civil service position’ means a position in the civil service (as defined in section 2101 of title 5, United States Code) that is not—“(A) a temporary position; or

“(B) a political position;

“(3) the term ‘former political appointee’ means an individual who—“(A) is not serving in an appointment to a political position; and

“(B) served as a political appointee during the 5-year period ending on the date of the request for an appointment to a covered civil service position in any agency;

“(4) the term ‘political appointee’ means an individual serving in an appointment to a political position; and

“(5) the term ‘political position’ means—“(A) a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule);

“(B) a noncareer appointment in the Senior Executive Service, as defined under paragraph (7) of section 3132(a) of title 5, United States Code; or

“(C) a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations.

“(b) Reporting on Current or Recent Political Appointees Appointed to Covered Civil Service Positions.—“(1) Annual report.—Except as provided in paragraph (2), the Director of the Office of Personnel Management shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Reform] of the House of Representatives an annual report regarding requests by agencies to appoint political appointees or former political appointees to covered civil service positions. Each report shall cover one calendar year and shall—“(A) for each request by an agency that a political appointee be appointed to a covered civil service position during the period covered by the report, provide—“(i) the date on which the request was received by the Office of Personnel Management;

“(ii) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

“(iii) the date on which the individual was first appointed to a political position in the agency in which the individual is serving as a political appointee;

“(iv) the grade and rate of basic pay for the individual as a political appointee;

“(v) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

“(vi) whether the Office of Personnel Management approved or denied the request; and

“(vii) the date on which the individual was appointed to a covered civil service position, if applicable; and

“(B) for each request by an agency that a former political appointee be appointed to a covered civil service position during the period covered by the report, provide—“(i) the date on which the request was received by the Office of Personnel Management;

“(ii) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

“(iii) the date on which the individual was first appointed to any political position;

“(iv) the grade and rate of basic pay for the individual as a political appointee;

“(v) the date on which the individual ceased to serve in a political position;

“(vi) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

“(vii) whether the Office of Personnel Management approved or denied the request; and

“(viii) the date on which the individual was first appointed to a covered civil service position, if applicable.

“(2) Quarterly report in certain years.—In the last year of the term of a President, or, if applicable, the last year of the second consecutive term of a President, the report required under paragraph (1) shall be submitted quarterly and shall cover each quarter of the year, except that the last quarterly report shall also cover January 1 through 20 of the following year.

“(c) Names and Titles of Certain Appointees.—If determined appropriate by the Director of the Office of Personnel Management, a report submitted under subsection (b) may exclude the name or title of a political appointee or former political appointee—“(1) who—“(A) was requested to be appointed to a covered civil service position; and

“(B) was not appointed to a covered civil service position; or

“(2) relating to whom a request to be appointed to a covered civil service position is pending at the end of the period covered by that report.”

Reduction of Federal Full-Time Equivalent PositionsPub. L. 103–226, § 5, Mar. 30, 1994, 108 Stat. 115, as amended by Pub. L. 103–329, title VI, § 631, Sept. 30, 1994, 108 Stat. 2424; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814, 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 Government Accountability 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 BranchPub. L. 95–454, title III, § 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, § 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.

Citizenship Requirement for Employees Compensated From Appropriated FundsPub. L. 116–260, div. E, title VII, § 704, Dec. 27, 2020, 134 Stat. 1430, provided that: “Unless otherwise specified in law 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 who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); (3) is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; or (4) is a person who owes allegiance to the United States: Provided, That for purposes of this section, affidavits signed by any such person shall be considered prima facie evidence that the requirements of this section with respect to his or her status are being complied with: Provided further, That for purposes of subsections (2) and (3) such affidavits shall be submitted prior to employment and updated thereafter as necessary: 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: Provided further, That this section shall not apply to any person who is an officer or employee of the Government of the United States on the date of enactment of this Act [Dec. 27, 2020], or to international broadcasters employed by the Broadcasting Board of Governors [now the United States Agency for Global Media], or to temporary employment of translators, or to temporary employment in the field service (not to exceed 60 days) as a result of emergencies: Provided further, That this section does not apply to the employment as Wildland firefighters for not more than 120 days of nonresident aliens employed by the Department of the Interior or the USDA Forest Service pursuant to an agreement with another country.”

Similar provisions to those in the Citizenship Requirement for Employees Compensated From Appropriated Funds note above were contained in the following prior appropriation acts:
Pub. L. 116–93, div. C, title VII, § 704, Dec. 20, 2019, 133 Stat. 2484.
Pub. L. 116–6, div. D, title VII, § 704, Feb. 15, 2019, 133 Stat. 187.
Pub. L. 115–141, div. E, title VII, § 704, Mar. 23, 2018, 132 Stat. 588.
Pub. L. 115–31, div. E, title VII, § 704, May 5, 2017, 131 Stat. 377.
Pub. L. 114–113, div. E, title VII, § 704, Dec. 18, 2015, 129 Stat. 2473.
Pub. L. 113–235, div. E, title VII, §§ 704, 750, Dec. 16, 2014, 128 Stat. 2379, 2392.
Pub. L. 113–76, div. E, title VII, §§ 704, 744, Jan. 17, 2014, 128 Stat. 231, 243.
Pub. L. 112–74, div. C, title VII, § 704, Dec. 23, 2011, 125 Stat. 929.
Pub. L. 111–117, div. C, title VII, § 704, Dec. 16, 2009, 123 Stat. 3205.
Pub. L. 111–8, div. D, title VII, § 704, Mar. 11, 2009, 123 Stat. 680.
Pub. L. 110–161, div. D, title VII, § 705, Dec. 26, 2007, 121 Stat. 2019.
Pub. L. 109–115, div. A, title VIII, § 805, Nov. 30, 2005, 119 Stat. 2496.
Pub. L. 108–447, div. H, title VI, § 605, Dec. 8, 2004, 118 Stat. 3273.
Pub. L. 108–199, div. F, title VI, § 605, Jan. 23, 2004, 118 Stat. 350.
Pub. L. 108–7, div. J, title VI, § 605, Feb. 20, 2003, 117 Stat. 464.
Pub. L. 107–67, title VI, § 605, Nov. 12, 2001, 115 Stat. 545, as amended by Pub. L. 108–188, title I, § 110, Dec. 17, 2003, 117 Stat. 2757.
Pub. L. 106–554, § 1(a)(3) [title VI, § 605], Dec. 21, 2000, 114 Stat. 2763, 2763A–155.
Pub. L. 106–58, title VI, § 605, Sept. 29, 1999, 113 Stat. 466.
Pub. L. 105–277, div. A, § 101(h) [title VI, § 606], Oct. 21, 1998, 112 Stat. 2681–480, 2681–513.
Pub. L. 105–61, title VI, § 606, Oct. 10, 1997, 111 Stat. 1309.
Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 606], Sept. 30, 1996, 110 Stat. 3009–314, 3009–354.
Pub. L. 104–52, title VI, § 606, Nov. 19, 1995, 109 Stat. 497.
Pub. L. 103–329, title VI, § 606, Sept. 30, 1994, 108 Stat. 2416.
Pub. L. 103–123, title VI, § 606, Oct. 28, 1993, 107 Stat. 1259.
Pub. L. 102–393, title VI, § 607, Oct. 6, 1992, 106 Stat. 1766.
Pub. L. 102–141, title VI, § 607, Oct. 28, 1991, 105 Stat. 868.
Pub. L. 101–509, title VI, § 603, Nov. 5, 1990, 104 Stat. 1471.
Pub. L. 101–136, title VI, § 603, Nov. 3, 1989, 103 Stat. 816.
Pub. L. 100–440, title VI, § 603, Sept. 22, 1988, 102 Stat. 1751.
Pub. L. 100–202, § 101(m) [title VI, § 603], Dec. 22, 1987, 101 Stat. 1329–390, 1329–419.
Pub. L. 99–500, § 101(m) [title VI, § 603], Oct. 18, 1986, 100 Stat. 1783–308, 1783–328, and Pub. L. 99–591, § 101(m) [title VI, § 603], Oct. 30, 1986, 100 Stat. 3341–308, 3341–328.
Pub. L. 99–190, title I, § 101(h) [H.R. 3036, title VI, § 603], Dec. 19, 1985, 99 Stat. 1291.
Pub. L. 98–473, title I, § 101(j) [H.R. 5798, title VI, § 604], Oct. 12, 1984, 98 Stat. 1963.
Pub. L. 98–151, § 101(f) [H.R. 4139, title VI, § 603], Nov. 14, 1983, 97 Stat. 973.
Pub. L. 97–377, title I, § 101(a) [incorporating H.R. 4121, title VI, § 603, for FY 1982], Dec. 21, 1982, 96 Stat. 1830.
Pub. L. 97–92, § 101(a) [H.R. 4121, title VI, § 603], Dec. 15, 1981, 95 Stat. 1183.
Pub. L. 96–536, § 101(a) [incorporating Pub. L. 96–74, title VI, § 602], Dec. 16, 1980, 94 Stat. 3166.
Pub. L. 96–74, title VI, § 602, Sept. 29, 1979, 93 Stat. 574.
Pub. L. 95–429, title VI, § 602, Oct. 10, 1978, 92 Stat. 1015.
Pub. L. 95–81, title VI, § 602, July 31, 1977, 91 Stat. 354.
Pub. L. 94–419, title VII, § 750, Sept. 22, 1976, 90 Stat. 1299.
Pub. L. 94–363, title VI, § 602, July 14, 1976, 90 Stat. 977.
Pub. L. 94–212, title VII, § 753, Feb. 9, 1976, 90 Stat. 177.
Pub. L. 94–91, title VI, § 602, Aug. 9, 1975, 89 Stat. 458.
Pub. L. 93–381, title VI, § 602, Aug. 21, 1974, 88 Stat. 630.
Pub. L. 93–143, title VI, § 602, Oct. 30, 1973, 87 Stat. 524.
Pub. L. 92–351, title VI, § 602, July 13, 1972, 86 Stat. 487.
Pub. L. 92–49, title VI, § 602, July 9, 1971, 85 Stat. 122.
Pub. L. 91–439, title V, § 502, Oct. 7, 1970, 84 Stat. 902.
Pub. L. 91–144, title V, § 502, Dec. 11, 1969, 83 Stat. 336.
Pub. L. 90–479, title V, § 502, Aug. 12, 1968, 82 Stat. 717.
Pub. L. 90–147, title V, § 502, Nov. 20, 1967, 81 Stat. 483.
Pub. L. 89–689, title V, § 502, Oct. 15, 1966, 80 Stat. 1014.
Pub. L. 89–299, title V, § 502, Oct. 28, 1965, 79 Stat. 1108.
Pub. L. 88–511, title V, § 502, Aug. 30, 1964, 78 Stat. 693.
Pub. L. 88–257, title V, § 502, Dec. 31, 1963, 77 Stat. 855.
Pub. L. 87–880, title V, § 502, Oct. 24, 1962, 76 Stat. 1227.
Pub. L. 87–125, title V, § 502, Aug. 3, 1961, 75 Stat. 282.
Pub. L. 86–642, title II, § 202, July 12, 1960, 74 Stat. 476.
Pub. L. 86–79, title II, § 202, July 8, 1959, 73 Stat. 165.
Pub. L. 85–468, title II, § 202, June 25, 1958, 72 Stat. 224.
Pub. L. 85–48, title II, § 202, June 5, 1957, 71 Stat. 53.
June 13, 1956, ch. 385, title II, § 202, 70 Stat. 280.
June 29, 1955, ch. 226, title II, § 202, 69 Stat. 195.
Aug. 26, 1954, ch. 935, Ch. XIII, § 1302, 68 Stat. 828.
Aug. 7, 1953, ch. 340, Ch. XIII, § 1302, 67 Stat. 435.
July 15, 1952, ch. 758, Ch. XIV, § 1402, 66 Stat. 659.
Nov. 1, 1951, ch. 664, Ch. XIII, § 1302, 65 Stat. 755.
Sept. 6, 1950, ch. 897, Ch. XII, § 1202, 64 Stat. 763.
Aug. 24, 1949, ch. 506, title III, § 302, 63 Stat. 661.
Apr. 20, 1948, ch. 219, title II, § 202, 62 Stat. 193.
July 30, 1947, ch. 359, title II, § 202, 61 Stat. 608.
Mar. 28, 1946, ch. 113, title II, § 206, 60 Stat. 80.
May 3, 1945, ch. 106, title II, § 206, 59 Stat. 132.
June 27, 1944, ch. 286, title II, § 205, 58 Stat. 385.
June 26, 1943, ch. 145, title II, § 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 20113 of Title 51, National and Commercial Space Programs.

Employment of Personnel During National Emergency Proclaimed on Dec. 16, 1950Section 1310 of act Nov. 1, 1951, ch. 664, Ch. XIII, 65 Stat. 757, as amended June 5, 1952, ch. 369, Ch. XIII, § 1302, 66 Stat. 122; Sept. 1, 1954, ch. 1208, title VI, § 602, 68 Stat. 1115; Oct. 11, 1962, Pub. L. 87–793, § 717(b), 76 Stat. 858; Aug. 6, 1965, Pub. L. 89–114, 79 Stat. 448; Oct. 11, 1967, Pub. L. 90–105, § 3, 81 Stat. 274; Apr. 21, 1976, Pub. L. 94–273, § 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, § 101, Sept. 14, 1976, 90 Stat. 1255 (50 U.S.C. 1601).

Executive Documents

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.

Freeze on Hiring of Federal Civilian EmployeesMemorandum 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.

§ 3102. Employment of personal assistants for handicapped employees, including blind and deaf employees(a) For the purpose of this section—(1) “agency” means—(A) an Executive agency;

(B) the Library of Congress; and

(C) an office, agency, or other establishment in the judicial branch;

(2) “handicapped employee” means an individual employed by an agency who is blind or deaf or who otherwise qualifies as a handicapped individual within the meaning of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 794); and

(3) “nonprofit organization” means an organization determined by the Secretary of the Treasury to be an organization described in section 501(c) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)) which is exempt from taxation under section 501(a) of such Code.

(b)(1) The head of each agency may employ one or more personal assistants who the head of the agency determines are necessary to enable a handicapped employee of that agency to perform the employee’s official duties and who shall serve without pay from the agency, without regard to—(A) the provisions of this title governing appointment in the competitive service;

(B) chapter 51 and subchapter III of chapter 53 of this title; and

(C) section 1342 of title 31.

Such employment may include the employing of a reading assistant or assistants for a blind employee or an interpreting assistant or assistants for a deaf employee.

(2) A personal assistant, including a reading or interpreting assistant, employed under this subsection may receive pay for services performed by the assistant from the handicapped employee or a nonprofit organization, without regard to section 209 of title 18.

(c) The head of each agency may also employ or assign one or more personal assistants who the head of the agency determines are necessary to enable a handicapped employee of that agency to perform the employee’s official duties. Such employment may include the employing of a reading assistant or assistants for a blind employee or an interpreting assistant or assistants for a deaf employee.

(d)(1) In the case of any handicapped employee (including a blind or deaf employee) traveling on official business, the head of the agency may authorize the payment to an individual to accompany or assist (or both) the handicapped employee for all or a portion of the travel period involved. Any payment under this subsection to such an individual may be made either directly to that individual or by advancement or reimbursement to the handicapped employee.

(2) With respect to any individual paid to accompany or assist a handicapped employee under paragraph (1) of this subsection—(A) the amount paid to that individual shall not exceed the limit or limits which the Office of Personnel Management shall prescribe by regulation to ensure that the payment does not exceed amounts (including pay and, if appropriate, travel expenses and per diem allowances) which could be paid to an employee assigned to accompany or assist the handicapped employee; and

(B) that individual shall be considered an employee, but only for purposes of chapter 81 of this title (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).

(e) This section may not be held or considered to prevent or limit in any way the assignment to a handicapped employee (including a blind or deaf employee) by an agency of clerical or secretarial assistance, at the expense of the agency under statutes and regulations currently applicable at the time, if that assistance normally is provided, or authorized to be provided, in that manner under currently applicable statutes and regulations.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 414; Pub. L. 90–623, § 1(3), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 95–454, title III, § 302(a), (b)(2), Oct. 13, 1978, 92 Stat. 1145, 1146; Pub. L. 96–54, § 2(a)(11), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–523, § 1(a), Dec. 12, 1980, 94 Stat. 3039; Pub. L. 97–258, § 3(a)(3), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 106–518, title III, § 311, Nov. 13, 2000, 114 Stat. 2421; Pub. L. 106–553, § 1(a)(2) [title III, § 307], Dec. 21, 2000, 114 Stat. 2762, 2762A–86.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 43a.Aug. 29, 1962, Pub. L. 87–614, 76 Stat. 408.

In subsection (a)(1), the word “agency” is substituted for “department”. The words “Executive agency” are coextensive with and substituted for “each executive department of the Federal Government, each agency or independent establishment in the executive branch of such Government, each corporation wholly owned or controlled by such Government, and the General Accounting Office” in view of the definition of “Executive agency” in section 105.
In subsection (a)(3), the words “individual employed” are substituted for “employee” so as to include individuals employed by the government of the District of Columbia who are not employees as defined by section 2105.
In subsection (b), the word “may” is substituted for “is authorized” and the words “in his discretion” are omitted as unnecessary in view of the permissive nature of the authority. The words “in the provisions of this title governing appointment in the competitive service” are substituted for “the civil service rules”. The words “section 209 of title 18” are substituted for “section 1914 of title 18” on authority of the Act of Oct. 24, 1962, Pub. L. 87–849, § 2, 76 Stat. 1126.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextSection 501 of the Rehabilitation Act of 1973, referred to in subsec. (a)(2), is classified to section 791 of Title 29, Labor, rather than to section 794 of Title 29 as shown in text.

Amendments2000—Subsec. (a)(1)(C). Pub. L. 106–518 and Pub. L. 106–553 amended par. (1) identically, adding subpar. (C).
1986—Subsec. (a)(3). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.
1982—Subsec. (b)(1)(C). Pub. L. 97–258 substituted “section 1342 of title 31” for “section 3679(b) of the Revised Statutes (31 U.S.C. 665(b))”.
1980—Pub. L. 96–523 amended section generally and, among other changes, in section catchline substituted “personal assistants for handicapped employees, including blind and” for “reading assistants for blind employees and interpreting assistants for”, in subsec. (a) substituted applicability to handicapped employees for applicability to blind and deaf employees omitted applicability to the government of the District of Columbia, in subsec. (b) substituted applicability to personal assistants for applicability to reading and interpreting assistants for blind and deaf employees, respectively, redesignated former subsec. (d) as (c) and made changes in phraseology, added subsec. (d), and redesignated former subsec. (c) as (e) and made changes in phraseology.
1979—Subsec. (a)(2). Pub. L. 96–54 substituted “Mayor” for “Commissioner”.
1978—Pub. L. 95–454, § 302(b)(2), substituted “reading assistants for blind employees and interpreting assistants for deaf employees” for “readers for blind employees” in section catchline.
Subsec. (a)(4), (5). Pub. L. 95–454, § 302(a)(1), added par. (4) and redesignated former par. (4) as (5).
Subsec. (b). Pub. L. 95–454, § 302(a)(2), inserted provisions respecting applicability to employment and compensation for interpreting assistant or assistants for deaf employees.
Subsec. (c). Pub. L. 95–454, § 302(a)(3), inserted “or deaf” after “blind”.
Subsec. (d). Pub. L. 95–454, § 302(a)(4), added subsec. (d).
1968—Subsec. (a)(2). Pub. L. 90–623 substituted “Commissioner” for “Board of Commissioners”.

Statutory Notes and Related Subsidiaries
Effective Date of 1980 AmendmentPub. L. 96–523, § 3, Dec. 12, 1980, 94 Stat. 3040, provided that: “The amendments made by this Act [amending this section, section 7 of the Federal Advisory Committee Act, set out in the Appendix to this title, section 604 of Title 28, Judiciary and Judicial Procedure, and section 410 of Title 39, Postal Service] shall take effect sixty days after the date of the enactment of this Act [Dec. 12, 1980].”

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 AmendmentAmendment 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.

Effective Date of 1968 AmendmentAmendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

§ 3103. Employment at seat of Government only for services rendered
An individual may be employed in the civil service in an Executive department at the seat of Government only for services actually rendered in connection with and for the purposes of the appropriation from which he is paid. An individual who violates this section shall be removed from the service.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 46.Aug. 5, 1882, ch. 389, § 4 (less 255th through 316th words), 22 Stat. 255.Sept. 23, 1950, ch. 1010, § 7, 64 Stat. 986.
 5 U.S.C. 47 (so much as relates to removal).Aug. 23, 1912, ch. 350, § 5 (so much as relates to removal), 37 Stat. 414.

The words “civil officer, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee” are omitted as obsolete language and “individual” is substituted therefor. The words “in the civil service” are added to preserve the application of former section 46 to civilian employees. The words “or subordinate bureaus or offices thereof” are omitted as surplusage. The words “and at the rate of pay usual and proper for the services” are omitted as surplusage since all pay rates are governed by statute.
All after the 75th words of section 4 of the Act of Aug. 5, 1882, as amended by section 7(b) of the Act of Sept. 23, 1950, except the 255th through 316th words, are omitted as executed. The 255th through 296th words are scheduled for repeal as superseded (see Table II–b), and the 297th through 316th words are codified in section 5501. The Act of Aug. 15, 1876, ch. 287, § 5, 19 Stat. 169, cited as authority for former section 46 was repealed by section 7(a) of the Act of Sept. 23, 1950.
In the last sentence, the word “removed” is substituted for “summarily removed” because of the provisions of the Lloyd-LaFollette Act, 37 Stat. 555, as amended, and the Veterans’ Preference Act of 1944, 58 Stat. 387, as amended, which are carried into this title.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3104. Employment of specially qualified scientific and professional personnel(a) The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum number of scientific or professional positions for carrying out research and development functions which require the services of specially qualified personnel which may be established outside of the General Schedule. Any such position may be established by action of the Director or, under such standards and procedures as the Office prescribes and publishes in such form as the Director may determine (including procedures under which the prior approval of the Director may be required), by agency action.

(b) The provisions of subsection (a) of this section shall not apply to any Senior Executive Service position (as defined in section 3132(a) of this title).

(c) In addition to the number of positions authorized by subsection (a) of this section, the Librarian of Congress may establish, without regard to the second sentence of subsection (a) of this section, not more than 8 scientific or professional positions to carry out the research and development functions of the Library of Congress which require the services of specially qualified personnel.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415; Pub. L. 90–83, § 1(7), Sept. 11, 1967, 81 Stat. 196; Pub. L. 91–375, § 6(c)(5), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–454, title IV, § 414(a)(2)(B), (C), title VIII, § 801(a)(3)(C), Oct. 13, 1978, 92 Stat. 1178, 1221; Pub. L. 99–386, title I, § 101(b), Aug. 22, 1986, 100 Stat. 821; Pub. L. 102–378, § 2(7), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 110–372, § 2(c)(1), Oct. 8, 2008, 122 Stat. 4044.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 1161 (less 2d sentence of (g)).Oct. 4, 1961, Pub. L. 87–367, § 202 “Sec. 1”, 75 Stat. 789.Oct. 11, 1962, Pub. L. 87–793, § 1001(a)(2) “(g) (less 2d sentence)”, 76 Stat. 863.
(b)5 U.S.C. 1162(c).Oct. 4, 1961, Pub. L. 87–367, § 202 “Sec. 2(c)”, 75 Stat. 790.
(c)5 U.S.C. 1163.Oct. 4, 1961, Pub. L. 87–367, § 202 “Sec. 3”, 75 Stat. 790.

In subsection (a), the authority to fix pay is omitted and carried into section 5361.
In subsection (b), the words “subsequent to February 1, 1958” appearing in former section 1162(c) are omitted as obsolete.
The Act of Aug. 1, 1947, ch. 433, 61 Stat. 715, as amended by the following Acts is omitted from the derivation and repealed (see Table II) as superseded by the Act of Oct. 4, 1961, Pub. L. 87–367, § 202, 75 Stat. 789, which is carried into this section and sections 3325 and 5361:
June 24, 1948, ch. 624, 62 Stat. 604.
July 13, 1949, ch. 332, 63 Stat. 410.
July 31, 1956, ch. 804 § 501(a), 70 Stat. 761.
Aug. 10, 1956, ch. 1041, § 28, 70A Stat. 631.
June 20, 1958, Pub. L. 85–462, § 12(a)–(d), 72 Stat. 213A.
Sept. 23, 1959, Pub. L. 86–370, § 4, 73 Stat. 651.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5Source (U.S. Code)Source (Statutes at Large)

3104(a)(5)5 App.: 1161(e).July 5, 1966, Pub. L. 89–492 § 5, 80 Stat. 262.

The amendment to 5 U.S.C. 3104(a)(5) reflects Public Law 89–492, section 5.
The other amendments to 5 U.S.C. 3104 are based on section 302 of the act of July 20, 1958, Public Law 85–568 (72 Stat. 433), 42 U.S.C. 2453, and transfer plan, effective March 15, 1960, 25 Federal Register 2151, section (2)(a)(2), (b) of which in effect transferred from the Department of Defense to the National Aeronautics and Space Administration 12 of the 450 scientific and professional positions authorized by section 2 of Public Law 86–377 (10 U.S.C. 1581). Provisions relating to the date for reporting to Congress are based on 10 U.S.C. 1582.

Editorial Notes

References in TextThe General Schedule, referred to in subsec. (a), is set out under section 5332 of this title.

Amendments2008—Subsec. (a). Pub. L. 110–372 substituted “prescribes and publishes in such form as the Director may determine” for “prescribes”.
1992—Subsec. (a). Pub. L. 102–378 struck out “(not to exceed 517)” after “positions” in first sentence and amended second sentence generally, substituting provisions authorizing establishment of positions by Director and by agency action for provisions specifying that only Director may establish positions.
1986—Pub. L. 99–386 struck out subsec. (b) relating to reports to Congress, redesignated pars. (1), (2), and (3) of subsec. (a) as subsecs. (a), (b), and (c), respectively, and substituted “subsection (a) of this section” for “paragraph (1) of this subsection” wherever appearing in subsecs. (b) and (c) as redesignated.
1978—Subsec. (a). Pub. L. 95–454, § 414(a)(2)(B), substituted provisions authorizing the Director to establish the maximum number of scientific or professional positions, excepting Senior Executive Service positions, and authorizing the Librarian to establish not more than 8 such positions for provisions authorizing the head of certain named agencies to establish a specified number of scientific or professional positions.
Subsec. (b). Pub. L. 95–454, § 414(a)(2)(B), (C), struck out subsec. (b), redesignated subsec. (c) as (b), and substituted in subsec. (b), as redesignated, “to fix under section 5361 of this title the pay for positions established under this section” for “to establish and fix the pay of positions under this section and section 5361 of this title”.
Pub. L. 95–454, § 801(a)(3)(C), substituted in subsec. (b), as redesignated, “section 5371 of this title” for “section 5361 of this title”.
Subsec. (c). Pub. L. 95–454, § 414(a)(2)(C)(i), redesignated subsec. (c) as (b).
1970—Subsec. (a)(5). Pub. L. 91–375 repealed provision for employment in Post Office Department in scientific or professional positions of not more than 6 qualified individuals.

Statutory Notes and Related Subsidiaries
Effective Date of 2008 AmendmentAmendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1978 AmendmentAmendment by section 801(a)(3)(C) of Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.
Amendment by section 414(a)(2)(B), (C) of Pub. L. 95–454 effective 180 days after Oct. 13, 1978, see section 415(a)(3) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1970 AmendmentAmendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Retention Pay for Employees Subject to a Reduction in Pay Upon Termination of Bureau’s Personnel Management Demonstration ProjectPub. L. 114–113, div. B, title II, § 206, Dec. 18, 2015, 129 Stat. 2312, provided that: “Funds appropriated by this or any other Act, with respect to any fiscal year, under the heading ‘Bureau of Alcohol, Tobacco, Firearms and Explosives, Salaries and Expenses’ shall be available for retention pay for any employee who would otherwise be subject to a reduction in pay upon termination of the Bureau’s Personnel Management Demonstration Project (as transferred to the Attorney General by section 1115 of the Homeland Security Act of 2002, Public Law 107–296 (28 U.S.C. 599B)): Provided, That such retention pay shall comply with section 5363 of title 5, United States Code, and related Office of Personnel Management regulations, except as provided in this section: Provided further, That such retention pay shall be paid at the employee’s rate of pay immediately prior to the termination of the demonstration project and shall not be subject to the limitation set forth in section 5304(g)(1) of title 5, United States Code, and related regulations.”

Experimental Personnel Program for Scientific and Technical PersonnelPub. L. 105–261, div. A, title XI, § 1101, Oct. 17, 1998, 112 Stat. 2139, as amended by Pub. L. 106–65, div. A, title X, § 1067(3), Oct. 5, 1999, 113 Stat. 774; Pub. L. 106–398, § 1 [[div. A] title X, § 1087(d)(6), title XI, § 1113], Oct. 30, 2000, 114 Stat. 1654, 1654A–293, 1654A–314; Pub. L. 108–136, div. A, title IX, § 921(g), title XI, § 1116, Nov. 24, 2003, 117 Stat. 1570, 1636; Pub. L. 109–364, div. A, title XI, § 1103, Oct. 17, 2006, 120 Stat. 2408; Pub. L. 110–181, div. A, title XI, § 1108, Jan. 28, 2008, 122 Stat. 358; Pub. L. 111–84, div. A, title XI, § 1104, Oct. 28, 2009, 123 Stat. 2485; Pub. L. 112–81, div. A, title XI, § 1110, Dec. 31, 2011, 125 Stat. 1615; Pub. L. 112–239, div. A, title X, § 1076(c)(2)(A)(vi), title XI, § 1102(a), Jan. 2, 2013, 126 Stat. 1950, 1973; Pub. L. 113–291, div. A, title XI, § 1104, Dec. 19, 2014, 128 Stat. 3525; Pub. L. 114–92, div. A, title X, §§ 1075(b), 1081(b)(5), Nov. 25, 2015, 129 Stat. 997, 1001, allowed Secretary of Defense, from Oct. 17, 1998, to Sept. 30, 2019, to carry out a program of experimental use of special personnel management authority to facilitate recruitment of eminent experts in science or engineering for certain research and development projects, prior to repeal by Pub. L. 114–328, div. A, title XI, § 1121(b), Dec. 23, 2016, 130 Stat. 2452. See section 1599h of Title 10, Armed Forces.

FBI Personnel Management System for Non-Special Agent Employees; Secretary of the TreasuryPub. L. 113–235, div. B, title II, § 206, Dec. 16, 2014, 128 Stat. 2197, provided that: “The Attorney General is authorized to extend through September 30, 2015, the Personnel Management Demonstration Project transferred to the Attorney General pursuant to [former] section 1115 of the Homeland Security Act of 2002 (Public Law 107–296; 28 U.S.C. 599B) without limitation on the number of employees or the positions covered.”

Similar provisions were contained in the following prior appropriation acts:
Pub. L. 113–76, div. B, title II, § 206, Jan. 17, 2014, 128 Stat. 67.
Pub. L. 113–6, div. B, title II, § 206, Mar. 26, 2013, 127 Stat. 257.
Pub. L. 112–55, div. B, title II, § 206, Nov. 18, 2011, 125 Stat. 619.
Pub. L. 111–117, div. B, title II, § 206, Dec. 16, 2009, 123 Stat. 3139.
Pub. L. 111–8, div. B, title II, § 206, Mar. 11, 2009, 123 Stat. 585.
Pub. L. 110–161, div. B, title II, § 206, Dec. 26, 2007, 121 Stat. 1913.
Pub. L. 109–108, title I, § 106, Nov. 22, 2005, 119 Stat. 2304.
Pub. L. 108–447, div. B, title I, § 109, Dec. 8, 2004, 118 Stat. 2868.
Pub. L. 105–119, title I, § 122, Nov. 26, 1997, 111 Stat. 2469, as amended by Pub. L. 105–277, div. C, title I, § 102, Oct. 21, 1998, 112 Stat. 2681–585; Pub. L. 107–67, title I, § 120, Nov. 12, 2001, 115 Stat. 525; Pub. L. 108–7, div. J, title I, § 119, Feb. 20, 2003, 117 Stat. 439; Pub. L. 108–199, div. F, title II, § 216, Jan. 23, 2004, 118 Stat. 320; Pub. L. 108–447, div. H, title II, § 216, Dec. 8, 2004, 118 Stat. 3241; Pub. L. 109–115, div. A, title II, § 216, Nov. 30, 2005, 119 Stat. 2439; Pub. L. 110–161, div. D, title I, § 115, Dec. 26, 2007, 121 Stat. 1978; Pub. L. 111–8, div. D, title I, § 113, Mar. 11, 2009, 123 Stat. 637; Pub. L. 111–117, div. C, title I, § 113, Dec. 16, 2009, 123 Stat. 3166; Pub. L. 112–74, div. C, title I, § 111, Dec. 23, 2011, 125 Stat. 890, provided that during 3-year period beginning on Nov. 26, 1997, Director of the Federal Bureau of Investigation could, with approval of Attorney General, establish personnel management system providing for compensation and performance management of not more than 3,000 non-Special Agent employees to fill critical scientific, technical, engineering, intelligence analyst, language translator, and medical positions in Federal Bureau of Investigation, further authorized Secretary of the Treasury to establish, for period of 14 years from Oct. 21, 1998, personnel management demonstration project providing for compensation and performance management of not more than combined total of 950 employees who fill critical scientific, technical, engineering, intelligence analyst, language translator, and medical positions in Bureau of Alcohol, Tobacco and Firearms, and further provided for submittal of reports to Congress and termination of authority to establish demonstration project on Nov. 26, 2000.
[Personnel management demonstration project transferred to Attorney General for continued use by Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and Secretary of the Treasury for continued use by Tax and Trade Bureau, see section 599B of Title 28, Judiciary and Judicial Procedure.]

Termination of Authority To Establish Scientific or Professional Positions Outside the General SchedulePub. L. 95–454, title IV, § 414(a)(2)(A), Oct. 13, 1978, 92 Stat. 1177, provided that: “Notwithstanding any other provision of law (other than section 3104 of title 5, United States Code), the authority granted to an agency (as defined in section 5102(a)(1) of such title 5) to establish scientific or professional positions outside of the General Schedule is hereby terminated.”

Pub. L. 95–454, title IV, § 415(a)(3), Oct. 13, 1978, 92 Stat. 1179, provided that the provisions of section 414(a)(2)(A) take effect 180 days after Oct. 13, 1978.

Limitations on Executive Positions Not To Apply to Individuals Occupying Those Positions on October 12, 1978Pub. L. 95–454, title IV, § 414(a)(3), Oct. 13, 1978, 92 Stat. 1178, provided that:
“(A) The provisions of paragraphs (1) and (2) of this subsection [amending sections 3104 and 5108 of this title] shall not apply with respect to any position so long as the individual occupying such position on the day before the date of the enactment of this Act [Oct. 13, 1978] continues to occupy such position.

“(B) The Director—“(i) in establishing under section 5108 of title 5, United States Code, the maximum number of positions which may be placed in GS–16, 17, and 18 of the General Schedule, and

“(ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established,

shall take into account positions to which subparagraph (A) of this paragraph applies.”

[Pub. L. 95–454, title IV, § 415(a)(3), Oct. 13, 1978, 92 Stat. 1179, provided that the provisions of section 414(a)(3) are effective 180 days after Oct. 13, 1978.]
[References in laws to rates of pay for GS–16, 17, or 18, or to maximum rates of pay under General Schedule, to be considered references to rates payable under specified sections of this title, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of this title.]

§ 3105. Appointment of administrative law judges
Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title. Administrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415; Pub. L. 95–251, § 2(a)(1), (b)(2), (d)(1), Mar. 27, 1978, 92 Stat. 183, 184.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1010 (1st sentence).June 11, 1946, ch. 324, § 11 (1st sentence), 60 Stat. 244.

The words “Subject to the civil service” are omitted as unnecessary inasmuch as appointments are made subject to the civil service laws unless specifically excepted. The words “and other laws not inconsistent with this chapter” are omitted as unnecessary because of the organization of this title.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–251 substituted references to administrative law judges for references to hearing examiners in section catchline and wherever appearing in text.

Statutory Notes and Related Subsidiaries
Hearing Examiners Appointed for Indian Probate WorkHearing examiners appointed for Indian probate work pursuant to former section 372–1 of Title 25, Indians, having met qualifications required for appointment pursuant to this section, deemed to have been appointed pursuant to this section, see section 12(b) of Pub. L. 101–301, set out as a Savings Provision note under former section 372–1 of Title 25.

References to Hearing Examiner Deemed References to Administrative Law JudgePub. L. 95–251, § 3, Mar. 27, 1978, 92 Stat. 184, provided that: “Any reference in any law, regulation, or order to a hearing examiner appointed under section 3105 of title 5, United States Code, shall be deemed to be a reference to an administrative law judge.”

Executive Documents
Hearing Examiners Employed by Department of AgricultureFunctions vested by section 551 et seq. of this title in hearing examiners employed by Department of Agriculture not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Agriculture by 1953 Reorg. Plan No. 2, § 1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this title.

Hearing Examiners Employed by Department of CommerceFunctions vested by section 551 et seq. of this title in hearing examiners employed by Department of Commerce not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Commerce by 1950 Reorg. Plan No. 5, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the InteriorFunctions vested by section 551 et seq. of this title in hearing examiners employed by Department of the Interior not included in functions of officers, agencies, and employees of that Department transferred to Secretary of the Interior by 1950 Reorg. Plan No. 3, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, transferred set out in the Appendix to this title.

Hearing Examiners Employed by Department of JusticeFunctions vested by section 551 et seq. of this title in hearing examiners employed by Department of Justice not included in functions of officers, agencies, and employees of that Department transferred to Attorney General by 1950 Reorg. Plan No. 2, § 1, eff. May 24, 1950, 15 F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.

Hearing Examiners Employed by Department of LaborFunctions vested by section 551 et seq. of this title in hearing examiners employed by Department of Labor not included in functions of officers, agencies, and employees of Department transferred to Secretary of Labor by 1950 Reorg. Plan No. 6, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.

Hearing Examiners Employed by Department of the TreasuryFunctions vested by section 551 et seq. of this title in hearing examiners employed by Department of the Treasury not included in functions of officers, agencies, and employees of Department transferred to Secretary of the Treasury by 1950 Reorg. Plan No. 26, § 1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title.

§ 3106. Employment of attorneys; restrictions
Except as otherwise authorized by law, the head of an Executive department or military department may not employ an attorney or counsel for the conduct of litigation in which the United States, an agency, or employee thereof is a party, or is interested, or for the securing of evidence therefor, but shall refer the matter to the Department of Justice. This section does not apply to the employment and payment of counsel under section 1037 of title 10.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 49.R.S. § 189.Sept. 2, 1958, Pub. L. 85–861, § 7(a), 72 Stat. 1555.
 5 U.S.C. 314.R.S. § 365.Sept. 2, 1958, Pub. L. 85–861, § 7(b), 72 Stat. 1555.

Sections 189 and 365 of the Revised Statutes, as amended, are combined and the section is revised to express the effect of the law since department heads have long employed, with the approval of Congress, attorneys to advise them in the conduct of their official duties. The law which concentrates the authority for the conduct of litigation in the Department of Justice is codified in section 516 of title 28 by this bill.
The words “Executive department” are substituted for “department” as the definition of “department” applicable to R.S. § 189 is coextensive with the definition of “Executive department” in section 101. The words “or military department” are inserted to preserve the application of the source law. 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 law for this section, 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.
R.S. § 189 was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 1, 1949, ch. 412, § 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.

§ 3107. Employment of publicity experts; restrictions
Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 416.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 54.Oct. 22, 1913, ch. 32, § 1 (last par. under “Interstate Commerce Commission”), 38 Stat. 212.

The prohibition is restated in positive form.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3108. Employment of detective agencies; restrictions
An individual employed by the Pinkerton Detective Agency, or similar organization, may not be employed by the Government of the United States or the government of the District of Columbia.
(Pub. L. 89– 554, Sept. 6, 1966, 80 Stat. 416.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 53.Mar. 3, 1893, ch. 208 (5th par. under “Public Buildings”), 27 Stat. 591.

The prohibition is restated in positive form.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3109. Employment of experts and consultants; temporary or intermittent(a) For the purpose of this section—(1) “agency” has the meaning given it by section 5721 of this title; and

(2) “appropriation” includes funds made available by statute under section 9104 of title 31.

(b) When authorized by an appropriation or other statute, the head of an agency may procure by contract the temporary (not in excess of 1 year) or intermittent services of experts or consultants or an organization thereof, including stenographic reporting services. Services procured under this section are without regard to—(1) the provisions of this title governing appointment in the competitive service;

(2) chapter 51 and subchapter III of chapter 53 of this title; and

(3) section 6101(b) to (d) of title 41, except in the case of stenographic reporting services by an organization.

However, an agency subject to chapter 51 and subchapter III of chapter 53 of this title may pay a rate for services under this section in excess of the daily equivalent of the highest rate payable under section 5332 of this title only when specifically authorized by the appropriation or other statute authorizing the procurement of the services.

(c) Positions in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service may not be filled under the authority of subsection (b) of this section.

(d) The Office of Personnel Management shall prescribe regulations necessary for the administration of this section. Such regulations shall include—(1) criteria governing the circumstances in which it is appropriate to employ an expert or consultant under the provisions of this section;

(2) criteria for setting the pay of experts and consultants under this section; and

(3) provisions to ensure compliance with such regulations.

(e) Each agency shall report to the Office of Personnel Management on an annual basis with respect to—(1) the number of days each expert or consultant employed by the agency during the period was so employed; and

(2) the total amount paid by the agency to each expert and consultant for such work during the period.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 416; Pub. L. 95–454, title IV, § 402(b), Oct. 13, 1978, 92 Stat. 1160; Pub. L. 97–258, § 3(a)(4), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 100–325, § 2(b), May 30, 1988, 102 Stat. 581; Pub. L. 102–378, § 2(8), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 111–350, § 5(a)(4), Jan. 4, 2011, 124 Stat. 3841.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 55a.Aug. 2, 1946, ch. 744, § 15, 60 Stat. 810.

In subsection (a), the definitions of “agency” and “appropriation” are added on authority of the Act of Aug. 2, 1946, ch. 744, § 18, 60 Stat. 811.
In subsection (b), the words “the provisions of this title governing appointment in the competitive service” are substituted for “the civil-service laws”. The words “chapter 51 and subchapter III of chapter 53 of this title” are substituted for the reference to the classification laws which originally meant the Classification Act of 1923, as amended. Exception from the Classification Act of 1949 is based on sections 202(27) and 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 956, 972.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2011—Subsec. (b)(3). Pub. L. 111–350 substituted “section 6101(b) to (d) of title 41” for “section 5 of title 41”.
1992—Subsecs. (d), (e). Pub. L. 102–378 added subsecs. (d) and (e).
1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.
1982—Subsec. (a)(2). Pub. L. 97–258 substituted “section 9104” for “section 849”.
1978—Subsec. (c). Pub. L. 95–454 added subsec. (c).

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment by Pub. L. 95–454 effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Limitation on Consulting ServicesPub. L. 113–76, div. G, title IV, § 401, Jan. 17, 2014, 128 Stat. 337, provided that: “In fiscal year 2014 and thereafter, the expenditure of any appropriation under this Act [div. G of Pub. L. 113–76, see Tables for classification] or any subsequent Act appropriating funds for departments and agencies funded in this Act, for any consulting service through procurement contract, pursuant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order issued pursuant to existing law.”

Appropriations Relating to Labor, Health and Human Services, and Education; Public Disclosure of Consulting Service Through Procurement ContractPub. L. 102–394, title V, § 501, Oct. 6, 1992, 106 Stat. 1825, provided that: “The expenditure of any appropriation under this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts for any consulting service through procurement contract, pursuant to 5 U.S.C. 3109, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order issued pursuant to existing law.”

Similar provisions were contained in the following prior appropriation acts:
Pub. L. 102–170, title V, § 501, Nov. 26, 1991, 105 Stat. 1140.
Pub. L. 101–517, title V, § 501, Nov. 5, 1990, 104 Stat. 2220.
Pub. L. 101–166, title V, § 501, Nov. 21, 1989, 103 Stat. 1189.
Pub. L. 100–202, § 101(h) [title V, § 501], Dec. 22, 1987, 101 Stat. 1329–256, 1329–287.
Pub. L. 99–500, § 101(i) [H.R. 5233, title V, § 501], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, § 101(i) [H.R. 5233, title V, § 501], Oct. 30, 1986, 100 Stat. 3341–287.
Pub. L. 99–178, title V, § 501, Dec. 12, 1985, 99 Stat. 1132.
Pub. L. 98–619, title V, § 501, Nov. 8, 1984, 98 Stat. 3332.
Pub. L. 98–139, title V, § 501, Oct. 31, 1983, 97 Stat. 898.
Pub. L. 97–377, title I, § 101(e)(1) [title V, § 501], Dec. 21, 1982, 96 Stat. 1878, 1904.

Availability of Appropriations for ServicesPub. L. 102–394, title V, § 503, Oct. 6, 1992, 106 Stat. 1825, provided that: “Appropriations contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts, available for salaries and expenses, shall be available for services as authorized by 5 U.S.C. 3109 but at rates for individuals not to exceed the per diem rate equivalent to the maximum rate payable for senior-level positions under 5 U.S.C. 5376.”

[For reference to maximum rate under section 5376 of this title, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under section 5376 of this title.]
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 102–170, title V, § 503, Nov. 26, 1991, 105 Stat. 1140.
Pub. L. 101–517, title V, § 503, Nov. 5, 1990, 104 Stat. 2221.
Pub. L. 101–166, title V, § 503, Nov. 21, 1989, 103 Stat. 1189.
Pub. L. 100–202, § 101(h) [title V, § 503], Dec. 22, 1987, 101 Stat. 1329–256, 1329–287.
Pub. L. 99–500, § 101(i) [H.R. 5233, title V, § 503], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, § 101(i) [H.R. 5233, title V, § 503], Oct. 30, 1986, 100 Stat. 3341–287.
Pub. L. 99–178, title V, § 503, Dec. 12, 1985, 99 Stat. 1132.
Pub. L. 98–619, title V, § 503, Nov. 8, 1984, 98 Stat. 3333.
Pub. L. 98–139, title V, § 503, Oct. 31, 1983, 97 Stat. 899.
Pub. L. 97–377, title I, § 101(e)(1) [title V, § 503], Dec. 21, 1982, 96 Stat. 1878, 1904.

Appropriations Relating to Energy and Water Development; Public Disclosure of Consulting Service Through Procurement ContractPub. L. 102–377, title V, § 504, Oct. 2, 1992, 106 Stat. 1342, provided that: “The expenditure of any appropriation under this Act or subsequent Energy and Water Development Appropriations Acts for any consulting service through procurement contract, pursuant to section 3109 of title 5, United States Code, hereafter shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law.”

Executive Documents

Ex. Ord. No. 13433. Protecting American Taxpayers From Payment of Contingency Fees
Ex. Ord. No. 13433, May 16, 2007, 72 F.R. 28441, 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, it is hereby ordered as follows:
Section 1. Policy. To help ensure the integrity and effective supervision of the legal and expert witness services provided to or on behalf of the United States, it is the policy of the United States that organizations or individuals that provide such services to or on behalf of the United States shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance of performance of the services, except when otherwise required by law.
Sec. 2. Duties of Agency Heads. (a) Heads of agencies shall implement within their respective agencies the policy set forth in section 1, consistent with such instructions as the Attorney General may prescribe.
(b) After the date of this order, no agency shall enter into a contingency fee agreement for legal or expert witness services addressed by section 1 of this order, unless the Attorney General has determined that the agency’s entry into the agreement is required by law.
(c) Within 90 days after the date of this order, the head of each agency shall notify the Attorney General and the Director of the Office of Management and Budget of any contingency fee agreements for services addressed by section 1 of this order that are in effect as of the date of this order.
Sec. 3. Definitions. For purposes of this order:
(a) The term “agency” means an executive agency as defined in section 105 of title 5, United States Code, and the United States Postal Service and the Postal Regulatory Commission, but shall exclude the Government Accountability Office and elements of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 as amended (50 U.S.C. 401a(4)) [now 50 U.S.C. 3003(4)][)].
(b) The term “contingency fee agreement” means a contract or other agreement to provide services under which the amount or the payment of the fee for the services is contingent in whole or in part on the outcome of the matter for which the services were obtained. The term does not include:
(i) qualified tax collection contracts defined in section 6306 of title 26, United States Code, and
(ii) contracts described in sections 3711 and 3718 of title 31, United States Code.
Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(c) This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person.

George W. Bush.

§ 3110. Employment of relatives; restrictions(a) For the purpose of this section—(1) “agency” means—(A) an Executive agency;

(B) an office, agency, or other establishment in the legislative branch;

(C) an office, agency, or other establishment in the judicial branch; and

(D) the government of the District of Columbia;

(2) “public official” means an officer (including the President and a Member of Congress), a member of the uniformed service, an employee and any other individual, in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals, or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency; and

(3) “relative” means, with respect to a public official, an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

(b) A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.

(d) The Office of Personnel Management may prescribe regulations authorizing the temporary employment, in the event of emergencies resulting from natural disasters or similar unforeseen events or circumstances, of individuals whose employment would otherwise be prohibited by this section.

(e) This section shall not be construed to prohibit the appointment of an individual who is a preference eligible in any case in which the passing over of that individual on a certificate of eligibles furnished under section 3317(a) of this title will result in the selection for appointment of an individual who is not a preference eligible.

(Added Pub. L. 90–206, title II, § 221(a), Dec. 16, 1967, 81 Stat. 640; amended Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Editorial Notes
Amendments1978—Subsec. (d). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

Effective DatePub. L. 90–206, title II, § 220(a)(1), Dec. 16, 1967, 81 Stat. 639, provided, except as otherwise expressly provided, that: “This section [enacting provisions set out as a note under section 8704 of this title] and sections 201 [enacting provisions set out as Short Title note under section 5332 of this title], 207 [amending section 5303 of this title], 212 [enacting provisions set out as a note under section 5303 of this title], 218 [enacting provisions set out as a note under section 5332 of this title], 221 [enacting this section and provisions set out as a note under this section], 224(a) and (b) [amending sections 4101 and 8339 of this title], and 225 [enacting sections 351–361 of Title 2, The Congress] shall become effective on the date of enactment of this title [Dec. 16, 1967].”

Retroactive EffectPub. L. 90–206, title II, § 221(c), Dec. 16, 1967, 81 Stat. 641, provided that: “The amendments made by this section [enacting this section] do not apply to an appointment, employment, advancement, or promotion made or advocated by a public official of any individual who is a relative of the public official if, prior to the effective date of this section [see Effective Date note above], the individual was appointed by the public official, or received an appointment advocated by the public official, and is serving under the appointment on such effective date.”

[Section 221(c) of Pub. L. 90–206 effective Dec. 16, 1967, see section 220(a)(1) of Pub. L. 90–206, set out as an Effective Date note above.]

§ 3111. Acceptance of volunteer service(a) For the purpose of this section, “student” means an individual who is enrolled, not less than half-time, in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. An individual who is a student is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 5 months and if such individual shows to the satisfaction of the Office of Personnel Management that the individual has a bona fide intention of continuing to pursue a course of study or training in the same or different educational institution during the school semester (or other period into which the school year is divided) immediately after the interim.

(b) Notwithstanding section 1342 of title 31, the head of an agency may accept, subject to regulations issued by the Office, voluntary service for the United States if the service—(1) is performed by a student, with the permission of the institution at which the student is enrolled, as part of an agency program established for the purpose of providing educational experiences for the student;

(2) is to be uncompensated; and

(3) will not be used to displace any employee.

(c)(1) Except as provided in paragraph (2), any student who provides voluntary service under subsection (b) of this section shall not be considered a Federal employee for any purpose other than for purposes of section 7905 (relating to commuting by means other than single-occupancy motor vehicles), chapter 81 (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).

(2) In addition to being considered a Federal employee for the purposes specified in paragraph (1), any student who provides voluntary service as part of a program established under subsection (b) of this section in the Internal Revenue Service, Department of the Treasury, shall be considered an employee of the Department of the Treasury for purposes of—(A) section 552a of this title (relating to disclosure of records);

(B) subsections (a)(1), (h)(1), (k)(6), and (l)(4) of section 6103 of title 26 (relating to confidentiality and disclosure of returns and return information);

(C) sections 7213(a)(1) and 7431 of title 26 (relating to unauthorized disclosures of returns and return information by Federal employees and other persons); and

(D) section 7423 of title 26 (relating to suits against employees of the United States);

except that returns and return information (as defined in section 6103(b) of title 26) shall be made available to students under such program only to the extent that the Secretary of the Treasury or his designee determines that the duties assigned to such students so require.

(d) Notwithstanding section 1342 of title 31, the head of an agency may accept voluntary service for the United States under chapter 37 of this title and regulations of the Office of Personnel Management.

(e)(1) For purposes of this section the term “agency” shall include the Architect of the Capitol. With respect to the Architect of the Capitol, the authority granted to the Office of Personnel Management under this section shall be exercised by the Architect of the Capitol.

(2) In this section, the term “agency” includes the Congressional Budget Office, except that in the case of the Congressional Budget Office—(A) any student who provides voluntary service in accordance with this section shall be considered an employee of the Congressional Budget Office for purposes of section 203 of the Congressional Budget Act of 1974 (relating to the level of confidentiality of budget data); and

(B) the authority granted to the Office of Personnel Management under this section shall be exercised by the Director of the Congressional Budget Office.

(Added Pub. L. 95–454, title III, § 301(a), Oct. 13, 1978, 92 Stat. 1144; amended Pub. L. 97–258, § 3(a)(5), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 97–437, Jan. 8, 1983, 96 Stat. 2285; Pub. L. 107–296, title XIII, § 1314(b), Nov. 25, 2002, 116 Stat. 2296; Pub. L. 107–347, title II, § 209(g)(1)(A), Dec. 17, 2002, 116 Stat. 2931; Pub. L. 111–68, div. A, title I, § 1303(a), Oct. 1, 2009, 123 Stat. 2034; Pub. L. 113–76, div. I, title I, § 1201(a), Jan. 17, 2014, 128 Stat. 426.)

Editorial Notes

References in TextSection 203 of the Congressional Budget Act of 1974, referred to in subsec. (e)(2)(A), is classified to section 603 of Title 2, The Congress.

Amendments2014—Subsec. (e). Pub. L. 113–76 designated existing provisions as par. (1) and added par. (2).
2009—Subsec. (e). Pub. L. 111–68 added subsec. (e).
2002—Subsec. (c)(1). Pub. L. 107–296 substituted “section 7905 (relating to commuting by means other than single-occupancy motor vehicles), chapter 81” for “chapter 81 of this title”.
Subsec. (d). Pub. L. 107–347 added subsec. (d).
1983—Subsec. (c)(1). Pub. L. 97–437, § 1(1), substituted “(c)(1) Except as provided in par. (2), any” for “(c) Any”.
Subsec. (c)(2). Pub. L. 97–437, § 1(2), added par. (2).
1982—Subsec. (b). Pub. L. 97–258 substituted “section 1342 of title 31” for “section 3679(b) of the Revised Statutes (31 U.S.C. 665(b))”.

Statutory Notes and Related Subsidiaries
Effective Date of 2014 AmendmentPub. L. 113–76, div. I, title I, § 1201(b), Jan. 17, 2014, 128 Stat. 426, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to fiscal year 2014 and each succeeding fiscal year.”

Effective Date of 2002 AmendmentsAmendment by Pub. L. 107–347 effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as an Effective Date note under section 3601 of Title 44, Public Printing and Documents.
Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective DateSection effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§ 3111a. Federal internship programs(a) Internship Coordinator.—The head of each agency operating an internship program shall appoint an individual within such agency to serve as an internship coordinator.

(b) Online Information.—(1) Agencies.—The Office of Personnel Management shall make publicly available on the Internet—(A) the name and contact information of the internship coordinator for each agency; and

(B) information regarding application procedures and deadlines for each internship program.

(2) Office of personnel management.—The Office of Personnel Management shall make publicly available on the Internet links to the websites where the information described in paragraph (1) is displayed.

(c) Definitions.—For purposes of this section—(1) the term “internship program” means—(A) a volunteer service program under section 3111(b);

(B) an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585);

(C) a program operated by a nongovernment organization for the purpose of providing paid internships in agencies under a written agreement that is similar to an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585); or

(D) a program that—(i) is similar to an internship program established under Executive Order 13562, dated December 27, 2010 (75 Federal Register 82585); and

(ii) is authorized under another statutory provision of law;

(2) the term “intern” means an individual participating in an internship program; and

(3) the term “agency” means an Executive agency.

(Added Pub. L. 112–81, div. A, title XI, § 1109(a), Dec. 31, 2011, 125 Stat. 1614.)

Editorial Notes

References in TextExecutive Order 13562, referred to in subsec. (c)(1), is set out as a note under section 3301 of this title.

Statutory Notes and Related Subsidiaries
RegulationsPub. L. 112–81, div. A, title XI, § 1109(c), Dec. 31, 2011, 125 Stat. 1615, provided that: “The Office of Personnel Management may prescribe regulations to carry out the amendment made by subsection (a) [enacting this section].”

§ 3112. Disabled veterans; noncompetitive appointment
Under such regulations as the Office of Personnel Management shall prescribe, an agency may make a noncompetitive appointment leading to conversion to career or career-conditional employment of a disabled veteran who has a compensable service-connected disability of 30 percent or more.
(Added Pub. L. 95–454, title III, § 307(b)(1), Oct. 13, 1978, 92 Stat. 1147.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§ 3113. Restriction on reemployment after conviction of certain crimes
An employee shall be separated from service and barred from reemployment in the Federal service, if—(1) the employee is convicted of a violation of section 201(b) of title 18; and

(2) such violation related to conduct prohibited under section 1010(a) of the Controlled Substances Import and Export Act (21 U.S.C. 960(a)).

(Added Pub. L. 105–61, title VI, § 638(a), Oct. 10, 1997, 111 Stat. 1316.)

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 105–61, title VI, § 638(c), Oct. 10, 1997, 111 Stat. 1317, provided that: “This section [enacting this section] shall apply during fiscal year 1998 and each fiscal year thereafter.”

§ 3114. Appointment of candidates to certain positions in the competitive service by the Securities and Exchange Commission(a) Applicability.—This section applies with respect to any position of accountant, economist, and securities compliance examiner at the Commission that is in the competitive service, and any position at the Commission in the competitive service that requires specialized knowledge of financial and capital market formation or regulation, financial market structures or surveillance, or information technology.

(b) Appointment Authority.—(1) In general.—The Commission may appoint candidates to any position described in subsection (a)—(A) in accordance with the statutes, rules, and regulations governing appointments in the excepted service; and

(B) notwithstanding any statutes, rules, and regulations governing appointments in the competitive service.

(2) Rule of construction.—The appointment of a candidate to a position under authority of this subsection shall not be considered to cause such position to be converted from the competitive service to the excepted service.

(c) Reports.—No later than 90 days after the end of fiscal year 2003 (for fiscal year 2003) and 90 days after the end of fiscal year 2005 (for fiscal years 2004 and 2005), the Commission shall submit a report with respect to its exercise of the authority granted by subsection (b) during such fiscal years to the Committee on Government Reform and the Committee on Financial Services of the House of Representatives and the Committee on Governmental Affairs and the Committee on Banking, Housing, and Urban Affairs of the Senate. Such reports shall describe the changes in the hiring process authorized by such subsection, including relevant information related to—(1) the quality of candidates;

(2) the procedures used by the Commission to select candidates through the streamlined hiring process;

(3) the numbers, types, and grades of employees hired under the authority;

(4) any benefits or shortcomings associated with the use of the authority;

(5) the effect of the exercise of the authority on the hiring of veterans and other demographic groups; and

(6) the way in which managers were trained in the administration of the streamlined hiring system.

(d) Commission Defined.—For purposes of this section, the term “Commission” means the Securities and Exchange Commission.

(Added Pub. L. 108–44, § 2(a), July 3, 2003, 117 Stat. 842; amended Pub. L. 111–203, title IX, § 929G(a), July 21, 2010, 124 Stat. 1855.)

Editorial Notes
Amendments2010—Pub. L. 111–203 substituted “Appointment of candidates to certain positions in the competitive service by the Securities and Exchange Commission” for “Appointment of accountants, economists, and examiners by the Securities and Exchange Commission” in section catchline, added subsec. (a), and struck out former subsec. (a). Prior to amendment, text read as follows: “This section applies with respect to any position of accountant, economist, and securities compliance examiner at the Commission that is in the competitive service.”

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Effective Date of 2010 AmendmentAmendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

§ 3115. Expedited hiring authority for college graduates; competitive service(a) Definitions.—In this section:(1) Director.—The term “Director” means the Director of the Office of Personnel Management.

(2) Institution of higher education.—The term “institution of higher education” has the meaning given the term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(b) Appointment.—(1) In general.—The head of an agency may appoint, without regard to any provision of sections 3309 through 3319 and 3330, a qualified individual to a position in the competitive service classified in a professional or administrative occupational category at the GS–11 level, or an equivalent level, or below.

(2) Restrictions.—An appointment under paragraph (1) shall be made in accordance with regulations prescribed by the Director.

(c) Qualifications for Appointment.—The head of an agency may make an appointment under subsection (b) only if the individual being appointed—(1) has received a baccalaureate or graduate degree from an institution of higher education;

(2) applies for the position—(A) not later than 2 years after the date on which the individual being appointed received the degree described in paragraph (1); or

(B) in the case of an individual who has completed a period of not less than 4 years of obligated service in a uniformed service, not later than 2 years after the date of the discharge or release of the individual from that service; and

(3) meets each minimum qualification standard prescribed by the Director for the position to which the individual is being appointed.

(d) Public Notice and Advertising.—(1) In general.—The head of an agency making an appointment under subsection (b) shall publicly advertise positions under this section.

(2) Requirements.—In carrying out paragraph (1), the head of an agency shall—(A) adhere to merit system principles;

(B) advertise positions in a manner that provides for diverse and qualified applicants; and

(C) ensure potential applicants have appropriate information relevant to the positions available.

(e) Limitation on Appointments.—(1) In general.—Except as provided in paragraph (2), the total number of employees that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of individuals that the agency head appointed during the previous fiscal year to a position in the competitive service classified in a professional or administrative occupational category, at the GS–11 level, or an equivalent level, or below, under a competitive examining procedure.

(2) Exceptions.—Under a regulation prescribed under subsection (f), the Director may establish a lower limit on the number of individuals that may be appointed under paragraph (1) of this subsection during a fiscal year based on any factor the Director considers appropriate.

(f) Regulations.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administration of this section.

(g) Reporting.—(1) In general.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to—(A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and

(B) the Director that contains data that the Director considers necessary for the Director to assess the impact and effectiveness of the authority described in subparagraph (A).

(2) Content.—The head of an agency shall include in each report under paragraph (1)—(A) the total number of individuals appointed by the agency under this section, as well as the number of such individuals who are—(i) minorities or members of other underrepresented groups; or

(ii) veterans;

(B) recruitment sources;

(C) the total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service classified in a professional or administrative occupational category at the GS–11 level, or an equivalent level, or below; and

(D) any additional data specified by the Director.

(h) Special Provision Regarding the Department of Defense.—(1) Authority.—Nothing in this section shall preclude the Secretary of Defense from exercising any authority to appoint a recent graduate under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute.

(2) Regulations.—Any regulations prescribed by the Director for the administration of this section shall not apply to the Department of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates.

(Added Pub. L. 115–232, div. A, title XI, § 1108(a), Aug. 13, 2018, 132 Stat. 2006.)

Editorial Notes

References in TextGS–11, referred to in subsecs. (b)(1), (e)(1), and (g)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title.
The date of enactment of this section, referred to in subsecs. (f) and (g)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018.
Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (h), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces.

§ 3116. Expedited hiring authority for post-secondary students; competitive service(a) Definitions.—In this section:(1) Director.—The term “Director” means the Director of the Office of Personnel Management.

(2) Institution of higher education.—The term “institution of higher education” has the meaning given the term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)).

(3) Student.—The term “student” means an individual enrolled or accepted for enrollment in an institution of higher education who is pursuing a baccalaureate or graduate degree on at least a part-time basis as determined by the institution of higher education.

(b) Appointment.—(1) In general.—The head of an agency may make a time-limited appointment of a student, without regard to any provision of sections 3309 through 3319 and 3330, to a position in the competitive service at the GS–11 level, or an equivalent level, or below for which the student is qualified.

(2) Restrictions.—An appointment under paragraph (1) shall be made in accordance with regulations prescribed by the Director.

(c) Public Notice.—(1) In general.—The head of an agency making an appointment under subsection (b) shall publicly advertise positions available under this section.

(2) Requirements.—In carrying out paragraph (1), the head of an agency shall—(A) adhere to merit system principles;

(B) advertise positions in a manner that provides for diverse and qualified applicants; and

(C) ensure potential applicants have appropriate information relevant to the positions available.

(d) Limitation on Appointments.—(1) In general.—Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of students that the agency head appointed during the previous fiscal year to a position at the GS–11 level, or an equivalent level, or below.

(2) Exceptions.—Under a regulation prescribed under subsection (g), the Director may establish a lower limit on the number of students that may be appointed under paragraph (1) of this subsection during a fiscal year based on any factor the Director considers appropriate.

(e) Conversion.—The head of an agency may, without regard to any provision of chapter 33 or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, convert a student serving in an appointment under subsection (b) to a permanent appointment in the competitive service within the agency without further competition if the student—(1) has completed the course of study leading to the baccalaureate or graduate degree;

(2) has completed not less than 640 hours of current continuous employment in an appointment under subsection (b); and

(3) meets the qualification standards for the position to which the student will be converted.

(f) Termination.—The head of an agency shall, without regard to any provision of chapter 35 or 75, terminate the appointment of a student appointed under subsection (b) upon completion of the designated academic course of study unless the student is selected for conversion under subsection (e).

(g) Regulations.—Not later than 180 days after the date of enactment of this section, the Director shall issue interim regulations, with an opportunity for comment, for the administration of this section.

(h) Reporting.—(1) In general.—Not later than September 30 of each of the first 3 fiscal years beginning after the date of enactment of this section, the head of an agency that makes an appointment under this section shall submit a report to—(A) Congress that assesses the impact of the use of the authority provided under this section during the fiscal year in which the report is submitted; and

(B) the Director that contains data that the Director considers necessary for the Director to assess the impact and effectiveness of the authority described in subparagraph (A).

(2) Content.—The head of an agency shall include in each report under paragraph (1)—(A) the total number of individuals appointed by the agency under this section, as well as the number of such individuals who are—(i) minorities or members of other underrepresented groups; or

(ii) veterans;

(B) recruitment sources;

(C) the total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below; and

(D) any additional data specified by the Director.

(i) Special Provision Regarding the Department of Defense.—(1) Authority.—Nothing in this section shall preclude the Secretary of Defense from exercising any authority to appoint a post-secondary student under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute.

(2) Regulations.—Any regulations prescribed by the Director for the administration of this section shall not apply to the Department of Defense during the period ending on the date on which the appointment authority of the Secretary of Defense under section 1106 of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. note prec. 1580), or any applicable successor statute, terminates.

(Added Pub. L. 115–232, div. A, title XI, § 1108(a), Aug. 13, 2018, 132 Stat. 2007; amended Pub. L. 116–92, div. A, title XI, § 1115, Dec. 20, 2019, 133 Stat. 1604.)

Editorial Notes

References in TextGS–11, referred to in subsecs. (b)(1), (d)(1), and (h)(2)(C), is contained in the General Schedule which is set out under section 5332 of this title.
The date of enactment of this section, referred to in subsecs. (g) and (h)(1), is the date of enactment of Pub. L. 115–232, which was approved Aug. 13, 2018.
Section 1106 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (i), is section 1106 of Pub. L. 114–328, which is set out as a note preceding section 1580 of Title 10, Armed Forces.

Amendments2019—Subsec. (d)(1). Pub. L. 116–92 amended par. (1) generally. Prior to amendment, text read as follows: “Except as provided in paragraph (2), the total number of students that the head of an agency may appoint under this section during a fiscal year may not exceed the number equal to 15 percent of the number of students that the agency head appointed during the previous fiscal year to a position in the competitive service at the GS–11 level, or an equivalent level, or below.”

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.

(Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1154.)

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 95–454, title IV, § 415, Oct. 13, 1978, 92 Stat. 1179, provided that:
“(a)(1) The provisions of this title, other than sections 413 and 414(a) [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title, and enacting provisions set out as a note under section 5311 of this title], shall take effect 9 months after the date of the enactment of this Act [Oct. 13, 1978].

“(2) The provisions of section 413 of this title [set out as a note under section 3133 of this title] shall take effect on the date of the enactment of this Act [Oct. 13, 1978].

“(3) The provisions of section 414(a) of this title [amending sections 3104 and 5108 of this title and enacting provisions set out as notes under sections 3104 and 5108 of this title] shall take effect 180 days after the date of the enactment of this Act [Oct. 13, 1978].

“(b)(1) The amendments made by sections 401 through 412 of this title [enacting this subchapter and sections 2101a, 3391 to 3397, 3591 to 3595, 4311 to 4315, 4507, 5381 to 5385, 5752, and 7541 to 7543 of this title, amending sections 2102, 2103, 2108, 3109, 3501, 5311, 5331, 5504, 5541, 5595, 5723, 6304, 8336, and 8339 of this title] shall continue to have effect unless, during the first period of 60 calendar days of continuous session of the Congress beginning after 5 years after the effective date of such amendments, a concurrent resolution is introduced and adopted by the Congress disapproving the continuation of the Senior Executive Service. Such amendments shall cease to have effect on the first day of the first fiscal year beginning after the date of the adoption of such concurrent resolution.

“(2) The continuity of a session is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.

“(3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j), and (k) of section 5305 of title 5, United States Code, shall apply with respect to any concurrent resolution referred to in paragraph (1) of this subsection, except that for the purpose of this paragraph the reference in such subsection (e) to 10 calendar days shall be considered a reference to 30 calendar days.

“(4) During the 5-year period referred to in paragraph (1) of this subsection, the Director of the Office of Personnel Management shall include in each report required under section 3135 of title 5, United States Code (as added by this title) an evaluation of the effectiveness of the Senior Executive Service and the manner in which such Service is administered.”

Congressional Findings Respecting Continuation of Senior Executive ServicePub. L. 98–615, title III, § 301, Nov. 8, 1984, 98 Stat. 3217, provided that: “The Congress finds that the Senior Executive Service should be continued indefinitely.”

Executive Documents

Ex. Ord. No. 13714. Strengthening the Senior Executive Service
Ex. Ord. No. 13714, Dec. 15, 2015, 80 F.R. 79225, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to strengthen the recruitment, hiring, and development of the Federal Government’s senior executives; I hereby order as follows:
Section 1. Policy. It is in the national interest to facilitate career executive continuity between administrations; to increase senior leadership attention to, and involvement in, executive recruitment; to reduce unnecessary burdens on applicants for executive positions; and to efficiently document demonstrated executive experience. Furthermore, it is imperative to periodically explore and promote new selection methods that effectively and efficiently identify the most capable and talented candidates for executive leadership positions to enhance the breadth and diversity of experiences among our Federal executives; to better support, recognize, and reward our executives, especially our top performers; and to strengthen executive accountability, all while maintaining a system that is focused on the public interest and free from improper political influence. An important aspect of strengthening our Senior Executive Service (SES) members is valuing the work they do every day, rewarding excellence, professionalism, and outstanding achievement through special act awards, Presidential Rank Awards, and other non-monetary and honorary awards. Consistent with the requirements of Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-Wide Initiative to Promote Diversity and Inclusion in the Federal Workforce), and with merit-based principles, this order continues to support executive departments and agencies (agencies) to develop and implement a comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of the recruitment, hiring, retention, and development of their SES cadre. Pursuing these goals will significantly improve the Federal Government’s ability to serve the American people. Unless otherwise noted, this order applies to career members of the SES.
Section 2 of this order establishes, under the President’s Management Council (PMC), a Subcommittee to advise the Office of Personnel Management (OPM), the PMC, and the President on senior executive matters, help monitor execution of an important set of executive reforms contained in section 3 of this order, and help keep the Federal Government’s executive management practices current and effective. In order to identify and maximize the use of best practices, requirements in sections [sic] 3(b)(i)–(iv) of this order will be implemented in three phases, with Phase I consisting of seven agencies, which will execute those reforms in fiscal year (FY) 2016; Phase II consisting of seven agencies, which will execute those reforms in FY 2017; and Phase III consisting of all other agencies, which will execute those reforms in FY 2018.
Sec. 2. Establishment of PMC Subcommittee to Strengthen the Senior Executive Service. There is established the PMC Subcommittee to Strengthen the Senior Executive Service (Subcommittee) to inform and support Government-wide priorities for improved management of senior executives identified by the Deputy Director for Management of the Office of Management and Budget (OMB) in consultation with the Director of OPM. The Subcommittee shall consist of five members of the PMC: the Deputy Director for Management of OMB, the Director of OPM, and three other members of the PMC. The Subcommittee will be advised by at least two career members of the SES to be determined by the members of the Subcommittee, and shall collaborate with the Chief Human Capital Officers Council. Expressions of interest to serve on the Subcommittee will be solicited, and final selections will be made by the Deputy Director for Management of OMB in consultation with the Director of OPM. The Subcommittee will advise OPM, members of the PMC, and the President on ways to strengthen and improve the SES workforce, as outlined in this order. In addition, it will identify any Government-wide obstacles it perceives to executive management, assist OPM in facilitating career executive continuity between administrations, and facilitate communication among the SES cadre.
Sec. 3. Requirements. Under the direction, or, in the case of sections 3(a)(i) and 3(b)(ii) of this order, the guidance, of the Director of OPM, and in consultation with OMB and the PMC Subcommittee, agencies shall undertake the following actions:
(a) Actions for Immediate Government-wide Implementation.
(i) Starting in FY 2017, agencies should limit their aggregate spending on agency performance awards for SES and Senior Level (SL) and Senior Scientific or Professional (ST) employees to 7.5 percent of aggregate SES and SL/ST salaries respectively. OMB and OPM shall undertake a review of, and revise as appropriate, their current guidance regarding aggregate spending on such awards. In addition, agencies should allocate awards in a manner that provides meaningfully greater rewards to top performers. Within 120 days of the date of this order, OPM shall issue, as appropriate, additional guidance regarding the distribution of such awards.
(ii) The heads of agencies with SES positions that supervise General Schedule (GS) employees shall implement policies, as permitted by and consistent with applicable law and regulation, for initial pay setting and pay adjustments, as appropriate, for career SES appointees to result in compensation exceeding the rates of pay, including locality pay, of their subordinate GS employees. Similar policies shall be implemented by heads of agencies for Senior Professional (i.e., SL or ST) employees that supervise GS employees. Such policies and practices support, recognize, and reward agency executives, especially top performers, in a manner commensurate with their roles, responsibilities, and contributions, and may increase the competitiveness of SES positions with comparable positions outside of Government.
(iii) Within 90 days of the date of this order, OPM shall evaluate the current Qualifications Review Board (QRB) process and issue guidance to agencies about materials that would be acceptable for QRB consideration and that will serve as an alternative or replacement to the current lengthy essay requirement for QRB submission, which may deter qualified applicants for SES positions or put an additional burden on human resources staff. The guidance shall also advise agencies about ways to streamline their initial application requirements for SES positions, including evaluation of options, such as allowing individuals to apply by only submitting a resume-based application and any additional materials necessary to determine relevant qualifications, consistent with the new QRB submission requirements.
(iv) Within 120 days of OPM issuing the guidance described in section 3(a)(iii) of this order, the heads of agencies with SES positions shall examine the agency’s career SES hiring process and make changes to the process to make it more efficient, effective, and less burdensome for all participants. Agencies shall simplify the initial application requirements for SES positions consistent with the guidance issued in section 3(a)(iii) of this order, and should only request critically necessary technical qualifications, with the goal of minimizing requirements that may deter qualified applicants from applying. Agencies shall also monitor time to hire of SES positions, and identify appropriate process improvements or other changes that can help reduce time to hire while ensuring high quality of hires.
(v) By May 31, 2016, the heads of agencies with 20 or more SES positions shall develop and submit to OPM a 2-year plan to increase the number of SES members who are rotating to improve talent development, mission delivery and collaboration. While agency specific targets will not be required, this order establishes a Government-wide goal of 15 percent of SES members rotating for a minimum of 120 days (including to different departments, agencies, subcomponents, functional areas, sectors, and non-federal partners) during FY 2017, and thereafter, in order to ensure the mobility of the corps while also maintaining stability of operations. Within 45 days of the date of this order, OPM shall issue guidance for implementation of section 3(a)(v) of this order. OPM shall evaluate the percentages set forth in this subsection on an ongoing basis and make adjustments as necessary and appropriate. These plans shall take into consideration the policy priorities of the agency, agency needs and rules in the context of administration transitions, needs identified in agency hiring plans and succession plans, the development opportunities listed in individuals’ Executive Development Plans (EDP), and the Federal Government’s interest in cultivating generalist executives with broad and diverse experiences who can lead a variety of organizations. These plans shall build on existing succession management processes and those established in section 3(b)(i) of this order to ensure high potential and top performers have an opportunity to cycle through rotations. These plans shall also incorporate, as appropriate, flexibilities agencies have such as the Intergovernmental Personnel Act (implemented in 5 CFR part 334) to encourage SES members to pursue temporary assignments to State and local governments, colleges and universities, tribal governments, and other eligible organizations, and to better understand the impact of the Federal Government’s work on those it serves. Finally, these plans shall include an assessment of the degree to which these rotation assignments achieve the desired goals for the individual and agency.
(b) Actions for Phased Implementation. Under the direction, or, in the case of section 3(b)(ii) of this order, the guidance, of the Director of OPM, in consultation with OMB and the PMC Subcommittee, the reforms listed in sections [sic] 3(b)(i)–(iv) of this order shall be implemented by agencies on the following schedule: the Secretaries of Defense, Energy, Health and Human Services, Housing and Urban Development, and Veterans Affairs; the Administrator of General Services; and the Director of OPM shall implement these reforms by September 30, 2016; the Secretaries of Agriculture, Education, Labor, and Transportation, and the Administrators of the National Aeronautics and Space Administration, the Environmental Protection Agency, and the Small Business Administration shall implement these reforms by September 30, 2017; the Secretaries of State, the Treasury, the Interior, Commerce, and Homeland Security, the Attorney General, and the Administrator of the U.S. Agency for International Development, as well as the Directors of OMB and the National Science Foundation, shall implement these reforms by September 30, 2018. By October 1 of each year, OPM shall issue additional guidance after each phase of implementation that reflects lessons learned and any adjustments to these reforms based on the agencies that have implemented them. By the respective date specified above, the heads of agencies shall:
(i) Establish an annual talent management and succession planning process to assess the development needs of all SES members, and SL and ST employees as appropriate, to inform readiness decisions about hiring, career development, and executive reassignments and rotations. These assessments shall include input from each executive, as well as the executive’s supervisor, and shall be used to recommend development activities and inform the organization’s succession planning, decisions about duty assignments, and agency hiring plans;
(ii) Proactively recruit individuals for vacant SES positions and regularly review those recruitment efforts at the Deputy Secretary (or direct designee) level on at least a quarterly basis, consistent with existing rules and regulations. Establish a mechanism to track, and raise for appropriate senior-level attention, information about each position that agencies are seeking to fill, including, at a minimum, source of the recruitment, number, quality and diversity (as available) of applicants, source of applicants (subcomponent, agency or non-government), and timeliness of the hiring process. Use the talent management and succession planning process described in section 3(b)(i) of this order and agency hiring plans to inform these recruitment efforts; and develop a tailored outreach strategy for proactive recruitment for key strategic positions;
(iii) Require supervisors of executives in their agency to work with their subordinate executives to update EDPs for each executive required by 5 CFR part 412.401, to include at least one developmental activity annually and at least one leadership assessment involving employee feedback (for example, 360 degree-type reviews) every 3 years to inform each executive’s developmental needs. In addition, non-career SES and equivalent appointees should also have one leadership assessment during their first 2 years, and additional assessments every 3 years thereafter; and
(iv) Establish a formal Executive Onboarding Program informed by OPM’s Enhanced Executive Onboarding Model and Government-Wide Executive Onboarding Framework, which shall provide critical support and guidance to executives through their first year of service in new positions, consistent with guidance to be issued by OPM no later than 60 days after the date of this order. Onboarding shall be provided for career and non-career SES, SL and ST employees, and SES-equivalent positions.
Sec. 4. Additional Implementation Considerations. (a) Actions for Agencies with SES-Equivalent Positions. Certain agencies have independent authorities enabling them to establish positions that are equivalent to SES or Senior Professional positions, or an executive personnel system that includes such positions. Whether the positions or employment systems are established in title 5 (for example, FBI/DEA SES) or in other titles of the United States Code (for example, Senior Foreign Service, Defense Intelligence SES, Senior National Intelligence Service), the agency head shall determine the extent to which the agency implements policies and processes to support objectives identified in sections 3(a) and 3(b) of this order for such positions consistent with the agency’s authorities and purposes for which the law provides them, with such consultation with the Director of OPM, OMB, and the PMC Subcommittee as the agency may require.
(b) Agency Status and Reporting. Within 45 days of the date of this order, OPM will issue guidance, concurrent with guidance in section 3(a)(v) of this order, that defines regular reporting on the status of each agency’s implementation of the provisions in this order.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

§ 3132. Definitions and exclusions(a) For the purpose of this subchapter—(1) “agency” means an Executive agency, except a Government corporation and the Government Accountability 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 Drug Enforcement Administration, the Central Intelligence Agency, the Office of the Director of National Intelligence, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10, and, as determined by the President, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities;

(C) the Federal Election Commission or the Election Assistance Commission;

(D) the Office of the Comptroller of the Currency, the Office of Thrift Supervision,,11 So in original. the Resolution Trust Corporation, the Farm Credit Administration, the Federal Housing Finance Agency, the National Credit Union Administration, the Bureau of Consumer Financial Protection, and the Office of Financial Research;

(E) the Securities and Exchange Commission; or

(F) the Commodity Futures Trading Commission;

(2) “Senior Executive Service position” means any position in an agency which is classified above GS–15 pursuant to section 5108 or in level IV or V of the Executive Schedule, or an 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;

(iii) any position established as a qualified position in the excepted service by the Secretary of Homeland Security under section 226 22 So in original. See References in Text note below. of the Homeland Security Act of 2002; or

(iv) any position established as a qualified position in the excepted service by the Secretary of Defense under section 1599f of title 10;

(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 bona fide, 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 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 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 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 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 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 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 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.

(Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1155; amended Pub. L. 96–54, § 2(a)(12), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96–187, title II, § 203, Jan. 8, 1980, 93 Stat. 1368; Pub. L. 100–325, § 2(c), May 30, 1988, 102 Stat. 581; Pub. L. 101–73, title VII, § 742(c), Aug. 9, 1989, 103 Stat. 437; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(A)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 101–624, title XVIII, § 1841, Nov. 28, 1990, 104 Stat. 3835; Pub. L. 102–496, title IV, § 402(b), Oct. 24, 1992, 106 Stat. 3184; Pub. L. 102–550, title XIII, § 1351(b), Oct. 28, 1992, 106 Stat. 3969; Pub. L. 103–359, title V, § 501(d), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 107–123, § 8(d)(1)(B), Jan. 16, 2002, 115 Stat. 2399; Pub. L. 107–171, title X, § 10702(c)(1), May 13, 2002, 116 Stat. 517; Pub. L. 107–252, title VIII, § 811(b), Oct. 29, 2002, 116 Stat. 1727; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–289, div. A, title I, § 1161(g)(2), July 30, 2008, 122 Stat. 2781; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 111–203, title I, § 152(d)(4), July 21, 2010, 124 Stat. 1414; Pub. L. 112–277, title V, § 505(b), Jan. 14, 2013, 126 Stat. 2478; Pub. L. 113–277, § 3(b), Dec. 18, 2014, 128 Stat. 3008; Pub. L. 114–92, div. A, title XI, § 1107(b), Nov. 25, 2015, 129 Stat. 1027.)

Editorial Notes

References in TextLevel IV or V of the Executive Schedule, referred to in subsec. (a)(2), are set out in sections 5315 and 5316 of this title.
Section 226 of the Homeland Security Act of 2002, referred to in cl. (iii) of concluding provisions of subsec. (a)(2), probably means the section 226 of Pub. L. 107–296 as added by Pub. L. 113–277, § 3(a), Dec. 18, 2014, 128 Stat. 3005, which was renumbered section 2208 of Pub. L. 107–296 by Pub. L. 115–278, § 2(g)(2)(I), Nov. 16, 2018, 132 Stat. 4178, and is classified to section 658 of Title 6, Domestic Security.
The date of the enactment of the Civil Service Reform Act of 1978, referred to in subsec. (b)(3), is the date of the enactment of Pub. L. 95–454, which was approved Oct. 13, 1978.

Amendments2015—Subsec. (a)(2). Pub. L. 114–92 added cl. (iv) of concluding provisions.
2014—Subsec. (a)(2). Pub. L. 113–277 added cl. (iii) of concluding provisions.
2013—Subsec. (a)(1)(B). Pub. L. 112–277 inserted “the Office of the Director of National Intelligence,” after “the Central Intelligence Agency,”.
2010—Subsec. (a)(1)(D). Pub. L. 111–203 substituted “the National Credit Union Administration, the Bureau of Consumer Financial Protection, and the Office of Financial Research;” for “and the National Credit Union Administration;”.
2008—Subsec. (a)(1)(B). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.
Pub. L. 110–289, § 1161(g)(2)(A), substituted “, and” for “,, and”.
Subsec. (a)(1)(D). Pub. L. 110–289, § 1161(g)(2)(B), struck out “the Federal Housing Finance Board” after “the Office of Thrift Supervision,”, substituted “the Federal Housing Finance Agency” for “the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development”, and struck out “or or” at end.
Subsec. (a)(1)(E), (F). Pub. L. 110–289, § 1161(g)(2)(C), (D), inserted “or” at end of subpar. (E), relating to Securities and Exchange Commission, and redesignated subpar. (E), relating to Commodity Futures Trading Commission, as (F).
2004—Subsec. (a)(1). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in introductory provisions.
2002—Subsec. (a)(1)(C). Pub. L. 107–252, § 811(b), inserted “or the Election Assistance Commission” after “Commission”.
Pub. L. 107–171, § 10702(c)(1)(A), which directed amendment by striking “or” at the end, could not be executed because the word “or” did not appear at the end. See below.
Pub. L. 107–123, § 8(d)(1)(B)(i), struck out “or” at end.
Subsec. (a)(1)(D). Pub. L. 107–171, § 10702(c)(1)(B), inserted “or” at end.
Pub. L. 107–123, § 8(d)(1)(B)(ii), inserted “or” at end.
Subsec. (a)(1)(E). Pub. L. 107–171, § 10702(c)(1)(C), added subpar. (E) relating to Commodity Futures Trading Commission.
Pub. L. 107–123, § 8(d)(1)(B)(iii), added subpar. (E) relating to the Securities and Exchange Commission.
1996—Subsec. (a)(1)(B). Pub. L. 104–201 substituted “National Imagery and Mapping Agency” for “Central Imagery Office”.
1994—Subsec. (a)(1)(B). Pub. L. 103–359 inserted “the Central Imagery Office,” after “Defense Intelligence Agency,”.
1992—Subsec. (a)(1)(B). Pub. L. 102–496 inserted “, Department of Defense intelligence activities the civilian employees of which are subject to section 1590 of title 10,” after “National Security Agency”.
Subsec. (a)(1)(D). Pub. L. 102–550 inserted “the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development,” after “Farm Credit Administration,”.
1990—Subsec. (a)(1)(D). Pub. L. 101–624 inserted reference to Farm Credit Administration.
Subsec. (a)(2). Pub. L. 101–509 substituted “classified above GS–15 pursuant to section 5108” for “in GS–16, 17, or 18 of the General Schedule”.
1989—Subsec. (a)(1)(D). Pub. L. 101–73 added subpar. (D).
1988—Subsec. (a)(1)(B). Pub. L. 100–325, § 2(c)(1), inserted reference to Drug Enforcement Administration.
Subsec. (a)(2)(iii). Pub. L. 100–235, § 2(c)(2), struck out cl. (iii) which read as follows: “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);”.
1980—Subsec. (a)(1)(C). Pub. L. 96–187 added subpar. (C).
1979—Subsec. (a)(1)(B). Pub. L. 96–54 inserted “and,” after “Security Agency,”.

Statutory Notes and Related Subsidiaries
Effective Date of 2010 AmendmentAmendment by Pub. L. 111–203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.

Effective Date of 2008 AmendmentPub. L. 110–289, div. A , title I, § 1163, July 30, 2008, 122 Stat. 2782, provided that: “Except as otherwise specifically provided in this title [see Tables for classification], this title and the amendments made by this title shall take effect on, and shall apply beginning on, the date of enactment of this Act [July 30, 2008].”

Effective Date of 2002 AmendmentsAmendment by Pub. L. 107–252 effective upon appointment of all members of the Election Assistance Commission under section 20923 of Title 52, Voting and Elections, see section 21134(a) of Title 52.
Amendment by Pub. L. 107–123 effective Oct. 1, 2001, see section 11 of Pub. L. 107–123, set out as a note under section 78ee of Title 15, Commerce and Trade.

Effective Date of 1996 AmendmentAmendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.

Effective Date of 1990 AmendmentAmendment 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 1980 AmendmentAmendment by Pub. L. 96–187 effective on Jan. 8, 1980, see section 301(a) of Pub. L. 96–187, set out as a note under section 30101 of Title 52, Voting and Elections.

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective DateSection effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

ConstructionPub. L. 112–166, § 2(hh), Aug. 10, 2012, 126 Stat. 1290, provided that:
“Notwithstanding section 3132(a)(2) of title 5, United States Code, removal of Senate confirmation for any position in this section shall not—
“(1) result in any such position being placed in the Senior Executive Service; or

“(2) alter compensation for any such position under the Executive Schedule or other applicable compensation provisions of law.”

§ 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 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. 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.

(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 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 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.

(Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1158; amended Pub. L. 114–328, div. A, title XI, § 1109(c), Dec. 23, 2016, 130 Stat. 2449.)

Editorial Notes

References in TextSection 1109 of the National Defense Authorization Act for Fiscal Year 2017, referred to in subsec. (c), is section 1109 of Pub. L. 114–328, set out as a note below.
Section 413 of the Civil Service Reform Act of 1978, referred to in subsec. (e)(1), is section 413 of Pub. L. 95–454, set out as a note below.
The date of such Act, referred to in subsec. (e)(1), probably means Oct. 13, 1978, the date of the enactment of the Civil Service Reform Act of 1978.

Amendments2016—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.”

Statutory Notes and Related Subsidiaries
Effective DateSection effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

Limitation on Number of DOD SES PositionsPub. L. 114–328, div. A, title XI, § 1109, Dec. 23, 2016, 130 Stat. 2449, provided that:
“(a) Limitation on Number of DOD SES Positions.—“(1) In general.—Not later than December 31, 2022, the total number of Senior Executive Service positions authorized under section 3133 of title 5, United States Code, for the Department of Defense may not exceed 1,260.

“(2) Highly qualified experts.—Of the total number of positions authorized under paragraph (1), not more than 200 of such positions may be occupied by an individual appointed under the authority provided in section 9903 of such title.

“(b) Plan to Achieve Required Limitation.—“(1) In general.—The Secretary of Defense shall develop a plan to achieve the limitation required by subsection (a) that includes—“(A) the distribution of Senior Executive Service positions across the Office of the Secretary of Defense, the Joint Staff, the Military Departments, the Defense Agencies and Field Activities, the unified and specified combatant commands, and other key elements of the Department of Defense;

“(B) the by-year reductions to Senior Executive Service positions consistent with the distribution required under subparagraph (A); and

“(C) recommendations for any legislative action that may be necessary for personnel management and shaping authorities to achieve the required limitation.

“(2) Submission of plan.—Not less than one year after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the plan developed under paragraph (1).

“(3) Progress reports.—The Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives semi-annual progress report briefings describing and assessing the progress of the Secretary in implementing the plan developed under paragraph (1).

“(c) Conforming Amendment.—
[Amended section 3133(c) of this title.]

“(d) Definition of Senior Executive Service Position.—In this section, the term ‘Senior Executive Service position’ has the meaning given such term in section 3132(a)(2) of title 5, United States Code.”

Conversion to Senior Executive ServicePub. L. 95–454, title IV, § 413, Oct. 13, 1978, 92 Stat. 1175, provided that:
“(a) For the purpose of this section, ‘agency’, ‘Senior Executive Service position’, ‘career appointee’, ‘career reserved position’, ‘limited term appointee’, ‘noncareer appointee’, and ‘general position’ have the meanings set forth in section 3132(a) of title 5, United States Code (as added by this title) and ‘Senior Executive Service’ has the meaning set forth in section 2101a of such title 5 (as added by this title).

“(b)(1) Under the guidance of the Office of Personnel Management, each agency shall—“(A) designate those positions which it considers should be Senior Executive Service positions and designate which of those positions it considers should be career reserved positions; and

“(B) submit to the Office a written request for—“(i) a specific number of Senior Executive Service positions; and

“(ii) authority to employ a specific number of noncareer appointees.

“(2) The Office of Personnel Management shall review the designations and requests of each agency under paragraph (1) of this subsection, and shall establish interim authorizations in accordance with sections 3133 and 3134 of title 5, United States Code (as added by this Act), and shall publish the titles of the authorized positions in the Federal Register.

“(c)(1) Each employee serving in a position at the time it is designated as a Senior Executive Service position under subsection (b) of this section shall elect to—“(A) decline conversion and be appointed to a position under such employee’s current type of appointment and pay system, retaining the grade, seniority, and other rights and benefits associated with such type of appointment and pay system; or

“(B) accept conversion and be appointed to a Senior Executive Service position in accordance with the provisions of subsections (d), (e), (f), (g), and (h) of this section.

The appointment of an employee in an agency because of an election under subparagraph (A) of this paragraph shall not result in the separation or reduction in grade of any other employee in such agency.

“(2) Any employee in a position which has been designated a Senior Executive Service position under this section shall be notified in writing of such designation, the election required under paragraph (1) of this subsection, and the provisions of subsections (d), (e), (f), (g), and (h) of this section. The employee shall be given 90 days from the date of such notification to make the election under paragraph (1) of this subsection.

“(d) Each employee who has elected to accept conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under—“(1) a career or career-conditional appointment; or

“(2) a similar type of appointment in an excepted service position, as determined by the Office;

in a position which is designated as a Senior Executive Service position shall be appointed as a career appointee to such Senior Executive Service position without regard to section 3393(b)–(e) of title 5, United States Code (as added by this title).

“(e) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under an excepted appointment in a position which is not designated a career reserved position in the Senior Executive Service, but is—“(1) a position in Schedule C of subpart C of part 213 of title 5, Code of Federal Regulations;

“(2) a position filled by noncareer executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations; or

“(3) a position in the Executive Schedule under subchapter II of chapter 53 of title 5, United States Code [section 5311 et seq. of this title], other than a career Executive Schedule position;

shall be appointed as a noncareer appointee to a Senior Executive Service position.

“(f) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a career reserved position under subsection (b) of this section shall be appointed as a noncareer appointee to an appropriate general position in the Senior Executive Service or shall be separated.

“(g) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a Senior Executive Service position and who has reinstatement eligibility to a position in the competitive service, may, on request to the Office, be appointed as a career appointee to a Senior Executive Service position. The name of, and basis for reinstatement eligibility for, each employee appointed as a career appointee under this subsection shall be published in the Federal Register.

“(h) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under a limited executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations, shall—“(1) be appointed as a limited term appointee to a Senior Executive Service position if the position then held by such employee will terminate within 3 years of the date of such appointment;

“(2) be appointed as a noncareer appointee to a Senior Executive Service position if the position then held by such employee is designated as a general position; or

“(3) be appointed as a noncareer appointee to a general position if the position then held by such employee is designated as a career reserved position.

“(i) The rate of basic pay for any employee appointed to a Senior Executive Service position under this section shall be greater than or equal to the rate of basic pay payable for the position held by such employee at the time of such appointment.

“(j) Any employee who is aggrieved by any action by any agency under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of title 5, United States Code (as added by this title). An agency shall take any corrective action which the Board orders in its decision on an appeal under this subsection.

“(k) The Office shall prescribe regulations to carry out the purpose of this section.”

[Pub. L. 95–454, title IV, § 415(a)(2), Oct. 13, 1978, 92 Stat. 1179, provided that section 413 [set out above] is effective Oct. 13, 1978.]

§ 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 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 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.

(Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1159.)

Editorial Notes

References in TextThe date of enactment of the Civil Service Reform Act of 1978, referred to in subsec. (d)(2), is the date of enactment of Pub. L. 95–454, which was approved Oct. 13, 1978.
Level IV or V of the Executive Schedule, referred to in subsec. (d)(2)(B), are set out in sections 5315 and 5316 of this title.

Statutory Notes and Related Subsidiaries
Effective DateSection effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

[§ 3135. Repealed. Pub. L. 104–66, title II, § 2181(a)(1), Dec. 21, 1995, 109 Stat. 732]

Section, added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1159; amended Pub. L. 98–168, title III, § 301(b), Nov. 29, 1983, 97 Stat. 1112; Pub. L. 98–615, title III, § 306(a), Nov. 8, 1984, 98 Stat. 3219, directed Office of Personnel Management to submit reports to Congress relating to Senior Executive Service.

§ 3136. Regulations
The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.
(Added Pub. L. 95–454, title IV, § 402(a), Oct. 13, 1978, 92 Stat. 1160.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

SUBCHAPTER III—THE FEDERAL BUREAU OF INVESTIGATION AND DRUG ENFORCEMENT ADMINISTRATION SENIOR EXECUTIVE SERVICE
§ 3151. The Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service(a) The Attorney General may by regulation establish a personnel system for senior personnel within the Federal Bureau of Investigation and the Drug Enforcement Administration to be known as the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service (hereinafter in this subchapter referred to as the “FBI–DEA Senior Executive Service”). The regulations establishing the FBI–DEA Senior Executive Service shall—(1) meet the requirements set forth in section 3131 for the Senior Executive Service;

(2) provide that positions in the FBI–DEA Senior Executive Service meet requirements that are consistent with the provisions of section 3132(a)(2);

(3) provide rates of pay for the FBI–DEA Senior Executive Service that are not in excess of the maximum rate or less than the minimum rate of basic pay established for the Senior Executive Service under section 5382 and that are adjusted at the same time and to the same extent as rates of basic pay for the Senior Executive Service are adjusted;

(4) provide a performance appraisal system for the FBI–DEA Senior Executive Service that conforms to the provisions of subchapter II of chapter 43;

(5) provide for—(A) removal consistent with section 3592;

(B) reduction-in-force procedures consistent with section 3595(a), together with measures to ensure that a member of the FBI–DEA Senior Executive Service may not be removed due to a reduction in force unless reasonable efforts to place such member in another such position are first taken;

(C) procedures in accordance with which any furlough affecting the FBI–DEA Senior Executive Service shall be carried out;

(D) removal or suspension consistent with subsections (a), (b), and (c) of section 7543 (except that any hearing or appeal to which a member of the FBI–DEA Senior Executive Service is entitled shall be held or decided pursuant to procedures established by regulations of the Attorney General); and

(E) recertification consistent with section 3393a; 11 See References in Text note below.

(6) permit the payment of performance awards to members of the FBI–DEA Senior Executive Service consistent with the provisions applicable to performance awards under section 5384; and

(7) provide that members of the FBI–DEA Senior Executive Service may be granted sabbatical leaves consistent with the provisions of section 3396(c).

(b) Except as provided in subsection (a), the Attorney General may—(1) make applicable to the FBI–DEA Senior Executive Service any of the provisions of this title applicable to applicants for or members of the Senior Executive Service; and

(2) appoint, promote, and assign individuals to positions established within the FBI–DEA Senior Executive Service without regard to the provisions of this title governing appointments and other personnel actions in the competitive service.

(c) The President, based on the recommendations of the Attorney General, may award ranks to members of the FBI–DEA Senior Executive Service in a manner consistent with the provisions of section 4507.

(d) Notwithstanding any other provision of this section, the Attorney General may detail or assign any member of the FBI–DEA Senior Executive Service to serve in a position outside the Federal Bureau of Investigation or the Drug Enforcement Administration (as the case may be) in which the member’s expertise and experience may be of benefit to the Federal Bureau of Investigation or the Drug Enforcement Administration (as the case may be) or another Government agency. Any such member shall not by reason of such detail or assignment lose any entitlement or status associated with membership in the FBI–DEA Senior Executive Service.

(e) The Attorney General shall each year submit to Congress, at the time the budget is submitted by the President to the Congress for the next fiscal year, a report on the FBI–DEA Senior Executive Service. The report shall include, in the aggregate and by agency—(1) the number of FBI–DEA Senior Executive Service positions established as of the end of the preceding fiscal year;

(2) the number of individuals being paid at each rate of basic pay for the FBI–DEA Senior Executive Service as of the end of the preceding fiscal year;

(3) the number, distribution, and amount of awards paid to members of the FBI–DEA Senior Executive Service during the preceding fiscal year; and

(4) the number of individuals removed from the FBI–DEA Senior Executive Service during the preceding fiscal year—(A) for less than fully successful performance;

(B) due to a reduction in force; or

(C) for any other reason.

(Added Pub. L. 100–325, § 1(a), May 30, 1988, 102 Stat. 579; amended Pub. L. 101–194, title V, § 506(b)(1), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 109–108, title I, § 111, Nov. 22, 2005, 119 Stat. 2305.)

Editorial Notes

References in TextSection 3393a, referred to in subsec. (a)(5)(E), was repealed by Pub. L. 107–296, title XIII, § 1321(a)(1)(B), Nov. 25, 2002, 116 Stat. 2296.
Provisions of this title governing appointments and other personnel actions in the competitive service, referred to in subsec. (b)(2), are classified generally to section 3301 et seq. of this title.

Amendments2005—Subsec. (b). Pub. L. 109–108 struck out par. (1) designation before “Except as provided”, redesignated subpars. (A) and (B) as pars. (1) and (2), respectively, and struck out former par. (2) which read as follows:
“(A) Notwithstanding any other provision of this section, an individual may not be selected for the FBI–DEA Senior Executive Service unless such individual is a career employee in the civil service.
“(B) For the purpose of subparagraph (A), ‘career employee in the civil service’ shall have such meaning as the Attorney General, in consultation with the Director of the Office of Personnel Management, by regulation prescribes.”
1989—Subsec. (a)(5)(E). Pub. L. 101–194 added subpar. (E).

Statutory Notes and Related Subsidiaries
Effective Date of 1989 AmendmentPub. L. 101–194, title V, § 506(d), Nov. 30, 1989, 103 Stat. 1759, provided that: “The amendments made by this section [enacting section 3393a of this title and amending this section, sections 3393, 3592 to 3594, 7701, 8336, 8339, 8414, and 8421 of this title, section 1601 of Title 10, Armed Forces, section 3945 of Title 22, Foreign Relations and Intercourse, and section 3610 of Title 50, War and National Defense] shall take effect on January 1, 1991.”

§ 3152. Limitation on pay
Members of the FBI–DEA Senior Executive Service shall be subject to the limitation under section 5307.
(Added Pub. L. 100–325, § 1(a), May 30, 1988, 102 Stat. 581; amended Pub. L. 102–378, § 2(9), Oct. 2, 1992, 106 Stat. 1347.)

Editorial Notes
Amendments1992—Pub. L. 102–378 amended section generally. Prior to amendment, section read as follows: “Nothing in this subchapter shall be construed to allow the aggregate amount payable to a member of the FBI–DEA Senior Executive Service under this subchapter during any fiscal year to exceed the annual rate payable for positions at level I of the Executive Schedule in effect at the end of such year. This section shall be applied in a manner consistent with paragraphs (1) and (2) of section 5383(b).”

SUBCHAPTER IV—TEMPORARY ORGANIZATIONS ESTABLISHED BY LAW OR EXECUTIVE ORDER
§ 3161. Employment and compensation of employees(a) Definition of Temporary Organization.—For the purposes of this subchapter, the term “temporary organization” means a commission, committee, board, or other organization that—(1) is established by law or Executive order for a specific period not in excess of three years for the purpose of performing a specific study or other project; and

(2) is terminated upon the completion of the study or project or upon the occurrence of a condition related to the completion of the study or project.

(b) Employment Authority.—(1) Notwithstanding the provisions of chapter 51 of this title, the head of a temporary organization may appoint persons to positions of employment in a temporary organization in such numbers and with such skills as are necessary for the performance of the functions required of a temporary organization.

(2) The period of an appointment under paragraph (1) may not exceed three years, except that under regulations prescribed by the Office of Personnel Management the period of appointment may be extended for up to an additional two years.

(3) The positions of employment in a temporary organization are in the excepted service of the civil service.

(c) Detail Authority.—Upon the request of the head of a temporary organization, the head of any department or agency of the Government may detail, on a nonreimbursable basis, any personnel of the department or agency to that organization to assist in carrying out its duties.

(d) Compensation.—(1) The rate of basic pay for an employee appointed under subsection (b) shall be established under regulations prescribed by the Office of Personnel Management without regard to the provisions of chapter 51 and subchapter III of chapter 53 of this title.

(2) The rate of basic pay for the chairman, a member, an executive director, a staff director, or another executive level position of a temporary organization may not exceed the maximum rate of basic pay established for the Senior Executive Service under section 5382 of this title.

(3) Except as provided in paragraph (4), the rate of basic pay for other positions in a temporary organization may not exceed the maximum rate of basic pay for grade GS–15 of the General Schedule under section 5332 of this title.

(4) The rate of basic pay for a senior staff position of a temporary organization may, in a case determined by the head of the temporary organization as exceptional, exceed the maximum rate of basic pay authorized under paragraph (3), but may not exceed the maximum rate of basic pay authorized for an executive level position under paragraph (2).

(5) In this subsection, the term “basic pay” includes locality pay provided for under section 5304 of this title.

(e) Travel Expenses.—An employee of a temporary organization, whether employed on a full-time or part-time basis, may be allowed travel and transportation expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of this title, while traveling away from the employee’s regular place of business in the performance of services for the temporary organization.

(f) Benefits.—An employee appointed under subsection (b) shall be afforded the same benefits and entitlements as are provided temporary employees under this title.

(g) Return Rights.—An employee serving under a career or career conditional appointment or the equivalent in an agency who transfers to or converts to an appointment in a temporary organization with the consent of the head of the agency is entitled to be returned to the employee’s former position or a position of like seniority, status, and pay without grade or pay retention in the agency if the employee—(1) is being separated from the temporary organization for reasons other than misconduct, neglect of duty, or malfeasance; and

(2) applies for return not later than 30 days before the earlier of—(A) the date of the termination of the employment in the temporary organization; or

(B) the date of the termination of the temporary organization.

(h) Temporary and Intermittent Services.—The head of a temporary organization may procure for the organization temporary and intermittent services under section 3109(b) of this title.

(i) Acceptance of Volunteer Services.—(1) The head of a temporary organization may accept volunteer services appropriate to the duties of the organization without regard to section 1342 of title 31.

(2) Donors of voluntary services accepted for a temporary organization under this subsection may include the following:(A) Advisors.

(B) Experts.

(C) Members of the commission, committee, board, or other temporary organization, as the case may be.

(D) A person performing services in any other capacity determined appropriate by the head of the temporary organization.

(3) The head of the temporary organization—(A) shall ensure that each person performing voluntary services accepted under this subsection is notified of the scope of the voluntary services accepted;

(B) shall supervise the volunteer to the same extent as employees receiving compensation for similar services; and

(C) shall ensure that the volunteer has appropriate credentials or is otherwise qualified to perform in each capacity for which the volunteer’s services are accepted.

(4) A person providing volunteer services accepted under this subsection shall be considered an employee of the Federal Government in the performance of those services for the purposes of the following provisions of law:(A) Chapter 81 of this title, relating to compensation for work-related injuries.

(B) Chapter 171 of title 28, relating to tort claims.

(C) Chapter 11 of title 18, relating to conflicts of interest.

(Added Pub. L. 106–398, § 1 [[div. A], title XI, § 1101(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–308.)

SUBCHAPTER V—PRESIDENTIAL INNOVATION FELLOWS PROGRAM
§ 3171. Presidential Innovation Fellows Program(a) Policy.—It is in the national interest for the Government to attract the brightest minds skilled in technology or innovative practices to serve in the Government to work on some of the Nation’s biggest and most pressing challenges. This subchapter establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Government and work in close cooperation with Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Government serves the American people.

(b) Establishment.—The Administrator of General Services shall continue the Presidential Innovation Fellows Program (hereinafter referred to as the “Program”) to enable exceptional individuals with proven track records to serve time-limited appointments in executive agencies to address some of the Nation’s most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology.

(c) Administration.—The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration. The Administrator shall provide necessary staff, resources and administrative support for the Program.

(d) Appointment of Fellows.—The Director shall appoint fellows pursuant to the Program and, in cooperation with executive agencies, shall facilitate placement of fellows to participate in projects that have the potential for significant positive effects and are consistent with the President’s goals.

(e) Application Process.—(1) In general.—The Director shall prescribe the process for applications and nominations of individuals to the Program.

(2) Program standards.—Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Governmentwide cap on the number of fellows. The Director shall establish and publish salary ranges, benefits, and standards for the Program.

(f) Selection, Appointment, and Assignment of Fellows.—(1) Procedures.—The Director shall prescribe appropriate procedures for the selection, appointment, and assignment of fellows.

(2) Consultation.—Prior to the selection of fellows, the Director shall consult with the heads of executive agencies regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as fellows.

(3) Time limitation.—Fellows selected for the Program shall serve under short-term, time-limited appointments. Such fellows shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing fellows at requesting executive agencies.

(g) Responsibilities of Agencies.—Each executive agency shall work with the Director and the Presidential Innovation Fellows Program advisory board established under section 3172 to attempt to maximize the Program’s benefits to the agency and the Government, including by identifying initiatives that have a meaningful effect on the people served and that benefit from involvement by one or more fellows. Such agencies shall ensure that each fellow works closely with responsible senior officials for the duration of the assignment.

(Added Pub. L. 115–1, § 2(a), Jan. 20, 2017, 131 Stat. 3.)

Statutory Notes and Related Subsidiaries
TransitionPub. L. 115–1, § 2(c), Jan. 20, 2017, 131 Stat. 5, provided that: “The Presidential Innovation Fellows Program established pursuant to Executive Order No. 13704 (5 U.S.C. 3301 note [now 5 U.S.C. 3171 note]) as in existence on the day before the date of enactment of this Act [Jan. 20, 2017] shall be considered the Presidential Innovation Fellows Program described in the amendments made by this Act [enacting this section and section 3172 of this title].”

Executive Documents

Ex. Ord. No. 13704. Presidential Innovation Fellows Program
Ex. Ord. No. 13704, Aug. 17, 2015, 80 F.R. 50751, 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. Policy. It is in the national interest for the Federal Government to attract the brightest minds skilled in technology or innovative practices to serve in the Federal Government to work on some of the Nation’s biggest and most pressing challenges. This order establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Federal Government and work in close cooperation with Federal Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Federal Government serves the American people.
Sec. 2. Establishment and Administration. (a) The Administrator of General Services (Administrator) shall establish the Presidential Innovation Fellows Program (Program) to enable exceptional individuals with proven track records to serve time-limited appointments in executive branch departments and agencies (agencies) to address some of the Nation’s most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology. Individuals selected for the Program shall be known as Presidential Innovation Fellows (Fellows).
(b) The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration (GSA). GSA shall provide necessary staff, resources and administrative support for the Program to the extent permitted by law and within existing appropriations.
(c) GSA shall appoint the Fellows and, in cooperation with agencies, shall facilitate placement of the Fellows to participate in projects that have the potential for significant positive effects and are consistent with the President’s goals.
Sec. 3. Advisory Board. (a) The Administrator shall establish an Advisory Board to advise the Director by recommending such priorities and standards as may be beneficial to fulfill the mission of the Program and assist in identifying potential projects and placements for Fellows. The Advisory Board will not participate in the Fellows’ selection process.
(b) The Administrator will designate a representative to serve as the Chair of the Advisory Board. In addition to the Chair, the membership of the Advisory Board shall include the Deputy Director for Management of the Office of Management and Budget, the Director of the Office of Personnel Management, the Office of Management and Budget’s Administrator of the Office of Electronic Government, and the Assistant to the President and Chief Technology Officer, or their designees and such other persons as may be designated by the Administrator. Consistent with law, the Advisory Board may consult with industry, academia, or non-profits to ensure the Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation’s most significant challenges.
Sec. 4. Application Process. (a) The Director, in accordance with applicable law, shall prescribe the process for applications and nominations of individuals to the Program.
(b) Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Government-wide cap on the number of Fellows.
The Director shall establish and publish salary ranges, benefits, and standards for the Program.
Sec. 5. Selection, Appointment, and Assignment of Fellows. (a) The Director, in accordance with applicable law, shall prescribe appropriate procedures for the selection, appointment, and assignment of Fellows.
(b) Prior to the selection of Fellows, the Director will consult with agencies and executive branch departments, regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as Fellows.
(c) The Fellows shall serve under short-term, time-limited appointments. As a general matter, they shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing Fellows at requesting agencies and executive branch departments.
Sec. 6. Responsibilities of Agencies. Each executive branch department or agency, as defined in section 105 of title 5, United States Code, is encouraged to work with the Director and Advisory Board to attempt to maximize the Program’s benefits to the department or agency and the Federal Government, including by identifying initiatives that will have a meaningful effect on the people served and that will benefit from involvement by one or more Fellows. Departments and agencies also are encouraged to ensure that each Fellow will work closely with responsible senior officials for the duration of the assignment.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

§ 3172. Presidential Innovation Fellows Program advisory board(a) In General.—The Administrator of General Services shall continue an advisory board to advise the Director of the Presidential Innovation Fellows Program by recommending such priorities and standards as may be beneficial to fulfill the mission of the Presidential Innovation Fellows Program and assist in identifying potential projects and placements for fellows. The advisory board may not participate in the selection process under section 3171(f).

(b) Chair; Membership.—The Administrator shall designate a representative to serve as the Chair of the advisory board. In addition to the Chair, the membership of the advisory board shall include—(1) the Deputy Director for Management of the Office of Management and Budget;

(2) the Director of the Office of Personnel Management;

(3) the Administrator of the Office of Electronic Government of the Office of Management and Budget;

(4) the Assistant to the President and Chief Technology Officer; and

(5) other individuals as may be designated by the Administrator.

(c) Consultation.—The advisory board may consult with industry, academia, or nonprofits to ensure the Presidential Innovation Fellows Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation’s most significant challenges.

(Added Pub. L. 115–1, § 2(a), Jan. 20, 2017, 131 Stat. 4.)

CHAPTER 33—EXAMINATION, SELECTION, AND PLACEMENT

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND APPOINTMENT

Sec.

3301.Civil service; generally.

3302.Competitive service; rules.

3303.Competitive service; recommendations of Senators or Representatives.

3304.Competitive service; examinations.

3304a.Competitive service; career appointment after 3 years’ temporary service.

3305.Competitive service; examinations; when held.

[3306.Repealed.]

3307.Competitive service; maximum-age entrance requirements; exceptions.

3308.Competitive service; examinations; educational requirements prohibited; exceptions.

3309.Preference eligibles; examinations; additional points for.

3310.Preference eligibles; examinations; guards, elevator operators, messengers, and custodians.

3311.Preference eligibles; examinations; crediting experience.

3312.Preference eligibles; physical qualifications; waiver.

3313.Competitive service; registers of eligibles.

3314.Registers; preference eligibles who resigned.

3315.Registers; preference eligibles furloughed or separated.

[3315a.Repealed.]

3316.Preference eligibles; reinstatement.

3317.Competitive service; certification from registers.

3318.Competitive service; selection from certificates.

3319.Alternative ranking and selection procedures.

3320.Excepted service; government of the District of Columbia; selection.

3321.Competitive service; probationary period.

3322.Voluntary separation before resolution of personnel investigation.

3323.Automatic separations; reappointment; reemployment of annuitants.

3324.Appointments to positions classified above GS–15.

3325.Appointments to scientific and professional positions.

3326.Appointments of retired members of the armed forces to positions in the Department of Defense.

3327.Civil service employment information.

3328.Selective Service registration.

3329.Appointments of military reserve technicians to positions in the competitive service.

3330.Government-wide list of vacant positions.

3330a.Preference eligibles; administrative redress.

3330b.Preference eligibles; judicial redress.

3330c.Preference eligibles; remedy.

3330d.Appointment of military spouses.

3330e.Review of official personnel file of former Federal employees before rehiring.

SUBCHAPTER II—OATH OF OFFICE

3331.Oath of office.

3332.Officer affidavit; no consideration paid for appointment.

3333.Employee affidavit; loyalty and striking against the Government.

SUBCHAPTER III—DETAILS, VACANCIES, AND APPOINTMENTS

3341.Details; within Executive or military departments.

[3342.Repealed.]

3343.Details; to international organizations.

3344.Details; administrative law judges.

3345.Acting officer.

3346.Time limitation.

3347.Exclusivity.

3348.Vacant office.

3349.Reporting of vacancies.

3349a.Presidential inaugural transitions.

3349b.Holdover provisions relating to certain independent establishments.11 So in original. Does not conform to section catchline.

3349c.Exclusion of certain officers.

3349d.Notification of intent to nominate during certain recesses or adjournments.

SUBCHAPTER IV—TRANSFERS

3351.Preference eligibles; transfer; physical qualifications; waiver.

3352.Preference in transfers for employees making certain disclosures.

SUBCHAPTER V—PROMOTION

3361.Promotion; competitive service; examination.

3362.Promotion; effect of incentive award.

3363.Preference eligibles; promotion; physical qualifications; waiver.

[3364.Repealed.]

SUBCHAPTER VI—ASSIGNMENTS TO AND FROM STATES

3371.Definitions.

3372.General provisions.

3373.Assignments of employees to State or local governments.1

3374.Assignments of employees from State or local governments.

3375.Travel expenses.

3376.Regulations.

SUBCHAPTER VII—AIR TRAFFIC CONTROLLERS

3381.Training.

3382.Involuntary separation for retirement.

3383.Determinations; review procedures.

3384.Regulations.

3385.Effect on other authority.

SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE

3391.Definitions.

3392.General appointment provisions.

3393.Career appointments.

[3393a.Repealed.]

3394.Noncareer and limited appointments.

3395.Reassignment and transfer within the Senior Executive Service.

3396.Development for and within the Senior Executive Service.

3397.Regulations.

Amendment of AnalysisPub. L. 115–232, div. A, title XI, § 1107(c), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this analysis is amended by striking items 3317, 3318, and 3319 and inserting new items 3317 “Competitive service; certification using numerical ratings”, 3318 “Competitive service; selection using numerical ratings”, and 3319 “Competitive service; selection using category rating”. See 2018 Amendment note below.
Pub. L. 115–232, div. A, title V, § 573(e), Aug. 13, 2018, 132 Stat. 1779, provided that, effective 5 years after Aug. 13, 2018, the amendment made by section 573(b) of Pub. L. 115–232 would expire. See 2018 Amendment note below.

Editorial Notes
Amendments2018—Pub. L. 115–232, div. A, title XI, § 1107(c), Aug. 13, 2018, 132 Stat. 2005, substituted “certification using numerical ratings” for “certification from registers.” in item 3317, “selection using numerical ratings” for “selection from certificates.” in item 3318, and “Competitive service; selection using category rating” for “Alternative ranking and selection procedures.” in item 3319.
Pub. L. 115–232, div. A, title V, § 573(b), (e), Aug. 13, 2018, 132 Stat. 1779, which amended analysis by adding item 3330d “Appointment of military spouses” and striking out former item 3330d, “Appointment of certain military spouses”, was treated as temporary to reflect the probable intent of Congress, notwithstanding termination provision in section 573(e) of Pub. L. 115–232, which effectively undid the amendments made to section 3330d of this title but only provided that the amendment made to this analysis would expire. See Termination Date of 2018 Amendment note set out under section 3330d of this title.
2016—Pub. L. 114–328, div. A, title XI, §§ 1136(c), 1140(c), Dec. 23, 2016, 130 Stat. 2460, 2471, which directed the amendment of the table of sections of subchapter I of chapter 33 by adding item 3330e at end and inserting item 3322 after item 3321, respectively, was executed to the table of sections for this chapter, to reflect the probable intent of Congress.
2013—Pub. L. 112–239, div. A, title V, § 566(c), Jan. 2, 2013, 126 Stat. 1751, added item 3330d.
2002—Pub. L. 107–296, title XIII, §§ 1312(b), 1321(a)(1)(C), Nov. 25, 2002, 116 Stat. 2291, 2296, added item 3319 and struck out item 3393a “Recertification”.
1998—Pub. L. 105–339, § 3(b), Oct. 31, 1998, 112 Stat. 3184, added items 3330a to 3330c.
Pub. L. 105–277, div. C, title I, § 151(c)(1), Oct. 21, 1998, 112 Stat. 2681–616, substituted “DETAILS, VACANCIES, AND APPOINTMENTS” for “DETAILS” in heading for subchapter III, “Acting officer” for “Details; to office of head of Executive agency or military department” in item 3345, “Time limitation” for “Details; to subordinate offices” in item 3346, “Exclusivity” for “Details; Presidential authority” in item 3347, “Vacant office” for “Details; limited in time” in item 3348, and “Reporting of vacancies” for “Details; to fill vacancies; restrictions” in item 3349 and added items 3349a to 3349d.
1996—Pub. L. 104–197, title III, § 315(b)(1), Sept. 16, 1996, 110 Stat. 2416, substituted “Competitive service; recommendations of Senators or Representatives” for “Political recommendations” in item 3303.
Pub. L. 104–106, div. A, title X, § 1037(b)(2), Feb. 10, 1996, 110 Stat. 432, which directed substitution of “3330. Government-wide list of vacant positions” for the item relating to section 3329, as added by section 4431(b) of Pub. L. 102–484, could not be executed because of the intervening amendment by Pub. L. 104–52, § 4(2). See 1995 Amendment note below.
1995—Pub. L. 104–52, title IV, § 4(2), Nov. 19, 1995, 109 Stat. 490, redesignated item 3329 “Government-wide list of vacant positions” as item 3330.
1993—Pub. L. 103–94, § 8(b), Oct. 6, 1993, 107 Stat. 1007, substituted “Political recommendations” for “Competitive service; recommendations of Senators or Representatives” in item 3303.
1992—Pub. L. 102–484, div. A, title V, § 544(b), div. D, title XLIV, § 4431(b), Oct. 23, 1992, 106 Stat. 2415, 2720, added two items 3329.
Pub. L. 102–378, § 2(13)(B), Oct. 2, 1992, 106 Stat. 1347, struck out item 3342 “Federal participants in executive exchange programs”.
1990—Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(C)(iii)], Nov. 5, 1990, 104 Stat. 1427, 1441, substituted “Appointments to positions classified above GS–15” for “Appointments at GS–16, 17, and 18” in item 3324.
Pub. L. 101–416, § 2(a)(2), Oct. 12, 1990, 104 Stat. 903, added item 3342.
1989—Pub. L. 101–194, title V, § 506(a)(2), Nov. 30, 1989, 103 Stat. 1758, added item 3393a.
Pub. L. 101–12, § 5(b), Apr. 10, 1989, 103 Stat. 33, added item 3352.
1988—Pub. L. 100–398, § 7(a)(3), Aug. 17, 1988, 102 Stat. 988, inserted “agency” after “Executive” in item 3345.
1985—Pub. L. 99–145, title XVI, § 1622(a)(2), Nov. 8, 1985, 99 Stat. 777, added item 3328.
1979—Pub. L. 96–54, § 2(a)(13), Aug. 14, 1979, 93 Stat. 382, struck out item 3315a “Registers; individuals receiving compensation for work injuries”.
1978—Pub. L. 95–454, title III, §§ 303(b), 307(h)(2), 309(b), title IV, § 403(b), title IX, § 906(c)(4), Oct. 13, 1978, 92 Stat. 1146, 1149, 1152, 1165, 1227, substituted “probationary period” for “probation; period of” in item 3321, struck out item 3319 “Competitive service; selection; members of family restriction”, added items 3327 and 3391 to 3397, and struck out items 3391 to 3398.
Pub. L. 95–437, § 3(b), Oct. 10, 1978, 92 Stat. 1058, added heading for subchapter VII and items 3391 to 3398.
Pub. L. 95–256, § 5(b)(2), Apr. 6, 1978, 92 Stat. 191, struck out item 3322 “Competitive service; temporary appointments after age 70”.
Pub. L. 95–251, § 2(c)(3), Mar. 27, 1978, 92 Stat. 184, substituted “administrative law judges” for “hearing examiners” in item 3344.
Pub. L. 95–228, § 2(a), Feb. 10, 1978, 92 Stat. 25, struck out item 3306 “Competitive service; departmental service; apportionment”.
1975—Pub. L. 94–183, § 2(7), Dec. 31, 1975, 89 Stat. 1057, struck out item 3364 “Promotion; substitute employees in the postal field service”.
1972—Pub. L. 92–297, §§ 2(b), 3(b), May 16, 1972, 86 Stat. 142, 144, substituted “maximum age entrance requirements, exceptions” for “maximum age requirement; restriction on use of appropriated funds” in item 3307, and added subchapter VII and items 3381 to 3385.
1971—Pub. L. 91–648, title IV, § 402(b), Jan. 5, 1971, 84 Stat. 1925, added heading for subchapter VI and items 3371 to 3376.
1970—Pub. L. 91–375, § 6(c)(7)(B), Aug. 12, 1970, 84 Stat. 776, struck out item 3327 “Postmasters; standards for determination of qualifications”.
1967—Pub. L. 90–105, § 1(b), Oct. 11, 1967, 81 Stat. 273, added item 3304a.
Pub. L. 90–83, § 1(9)(B), Sept. 11, 1967, 81 Stat. 197, added item 3315a.
1966—Pub. L. 89–762, § 1(b), Nov. 5, 1966, 80 Stat. 1312, struck out item 3342 “Details; field to departmental service prohibited”.

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND APPOINTMENT
§ 3301. Civil service; generally
The President may—(1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service;

(2) ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought; and

(3) appoint and prescribe the duties of individuals to make inquiries for the purpose of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 417.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 631 (less last 16 words).R.S. § 1753 (less last 16 words).

The words “civil service in the executive branch” are substituted for “civil service of the United States” to confirm the grant of authority in view of the definition of “civil service” in section 2101. The word “will” is substituted for “may”. The words “for the employment sought” are substituted for “for the branch of service into which he seeks to enter” as the latter are archaic since there are no “branches” within the executive branch. The word “applicant” is substituted for “candidate”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Statutory Notes and Related Subsidiaries
Short Title of 1998 AmendmentPub. L. 105–277, div. C, title I, § 151(a), Oct. 21, 1998, 112 Stat. 2681–611, provided that: “This section [enacting sections 3345 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3345 of this title] may be cited as the ‘Federal Vacancies Reform Act of 1998’.”

Short Title of 1991 AmendmentPub. L. 102–175, § 1, Dec. 2, 1991, 105 Stat. 1222, provided that: “This Act [amending sections 3395, 3396, 5383, and 7701 of this title] may be cited as the ‘Senior Executive Service Improvements Act’.”

Modifications to National Security Education ProgramPub. L. 107–296, title XIII, § 1332(a), Nov. 25, 2002, 116 Stat. 2299, provided that:
“(a) Findings and Policies.—“(1) Findings.—Congress finds that—“(A) the United States Government actively encourages and financially supports the training, education, and development of many United States citizens;

“(B) as a condition of some of those supports, many of those citizens have an obligation to seek either compensated or uncompensated employment in the Federal sector; and

“(C) it is in the United States national interest to maximize the return to the Nation of funds invested in the development of such citizens by seeking to employ them in the Federal sector.

“(2) Policy.—It shall be the policy of the United States Government to—“(A) establish procedures for ensuring that United States citizens who have incurred service obligations as the result of receiving financial support for education and training from the United States Government and have applied for Federal positions are considered in all recruitment and hiring initiatives of Federal departments, bureaus, agencies, and offices; and

“(B) advertise and open all Federal positions to United States citizens who have incurred service obligations with the United States Government as the result of receiving financial support for education and training from the United States Government.”

Temporary Measures To Facilitate Reemployment of Certain Displaced Federal EmployeesPub. L. 102–484, div. D, title XLIV, § 4432, Oct. 23, 1992, 106 Stat. 2720, directed executive agencies and the Department of Defense, in filling vacant positions, to give full consideration to the applications of certain individuals who became displaced employees before Oct. 1, 1997, before selecting any candidate from outside the agency for the position.

National Advisory Council on the Public ServicePub. L. 101–363, Aug. 14, 1990, 104 Stat. 424, provided that:
“SECTION 1. SHORT TITLE.“This Act may be cited as the ‘National Advisory Council on the Public Service Act of 1990’.

“SEC. 2. FINDINGS.“The Congress finds that—“(1) recognition of the services rendered by Federal employees (hereinafter in this Act referred to as ‘national public service’) should be accorded a high and continuing place on the national agenda;

“(2) the National Commission on the Public Service, through its good works, has documented the need for greater advocacy on behalf of those performing national public service;

“(3) although public service is an honorable profession, members of the public do not always perceive it favorably;

“(4) serious obstacles often hinder the Government’s efforts to recruit and retain the best and the brightest for national public service;

“(5) just as the public has a right to expect Federal employees to adhere to the highest standards of excellence and ethicality, so Federal employees have a right to expect an atmosphere of trust and respect, and a sense of accomplishment from their work; and

“(6) an advisory council is needed to provide the President and the Congress with bipartisan, objective assessments of, and recommendations concerning, the Federal workforce.

“SEC. 3. ESTABLISHMENT.“There shall be established a council to be known as the National Advisory Council on the Public Service (hereinafter in this Act referred to as the ‘Council’).

“SEC. 4. FUNCTIONS.“The Council shall—“(1) regularly assess the state of the Federal workforce;

“(2) in conjunction with the President, the Congress, and the Judiciary, seek to attract individuals of the highest caliber to careers involving national public service, and encourage them and others of similar distinction who are already part of the Federal workforce to make a continuing commitment to national public service;

“(3) promote better public understanding of the role of Federal employees in implementing Government programs and policies, and otherwise seek to improve the public perception of Federal employees;

“(4) encourage efforts to build student interest in performing national public service (whether those efforts are undertaken at the community level, in the classroom, or otherwise); and

“(5) develop methods for improving motivation and excellence among Federal employees.

“SEC. 5. MEMBERSHIP.“(a) Number and Appointment.—The Council shall be composed of 15 members as follows:“(1) 2 Members of the Senate, 1 of whom shall be appointed by the majority leader of the Senate and the other of whom shall be appointed by the minority leader of the Senate.

“(2) 2 Members of the House of Representatives, 1 of whom shall be appointed by the Speaker of the House of Representatives and the other of whom shall be appointed by the minority leader of the House of Representatives.

“(3) The Director of the Administrative Office of the United States Courts (or his delegate).

“(4) 10 individuals appointed by the President—“(A) 4 of whom shall be chosen from among officers serving in the executive branch;

“(B) 1 of whom shall be chosen from among career employees in the civil service;

“(C) 1 of whom shall be a Federal employee who is a member of a labor organization (as defined by section 7103(a)(4) of title 5, United States Code); and

“(D) 4 of whom shall be chosen from among members of the public who do not hold any Government office or position.

“(b) Continuation of Membership.—If any member of the Council whose appointment is based on that individual’s holding a Government office or position leaves such office or position, or if any member of the Council under subsection (a)(4)(D) is appointed or elected to a Government office or position, that individual may continue to serve as such a member for not longer than the 90-day period beginning on the date of leaving that office or position, or entering into that office or position, as the case may be.

“(c) Terms.—Members of the Council shall be appointed for the life of the Council.

“(d) Vacancies.—A vacancy in the Council shall be filled in the manner in which the original appointment was made.

“(e) Compensation.—(1) Members of the Council shall not be entitled to pay (or, in the case of members holding any Government office or position, pay in addition to any to which they are otherwise entitled for service in such office or position) by virtue of membership on the Council.

“(2) While serving away from their homes or regular places of business in the performance of duties for the Council, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as authorized by section 5703 of title 5, United States Code, for persons employed intermittently in Government service.

“(f) Quorum.—Eight members of the Council shall constitute a quorum.

“(g) Chairman.—The Chairman of the Council shall be designated by the President from among the members appointed under subsection (a)(4)(D).

“(h) Meetings.—The Council shall meet at the call of the Chairman or a majority of its members, and shall meet on at least a quarterly basis.

“SEC. 6. DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.“(a) Director.—With the approval of the Council, the Chairman may appoint a Director and fix the pay of such Director at a rate not to exceed the rate for level IV of the Executive Schedule [5 U.S.C. 5315]. The Director shall be a person who, by reason of demonstrated ability in the area of management, government, or public administration, is especially well qualified to serve.

“(b) Staff.—With the approval of the Chairman, the Director may appoint and fix the pay of such personnel as may be necessary to carry out the functions of the Council. The staff of the Council shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.

“(c) Experts and Consultants.—The Council may procure temporary or intermittent services under section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the maximum rate payable under the General Schedule.

“(d) Staff of Federal Agencies.—Upon the request of the Chairman, the head of a Federal agency may detail, on a reimbursable or nonreimbursable basis, any personnel of such agency to the Council to assist the Council in carrying out its functions under this Act.

“SEC. 7. POWERS.“(a) Mails.—The Council may use the United States mails in the same manner and under the same conditions as other Federal agencies.

“(b) Administrative Support Services.—The Administrator of General Services shall provide to the Council, on a reimbursable basis, such administrative support services as the Council may request.

“(c) Official Data.—The Council may secure directly from any Federal agency information necessary to carry out its functions under this Act. Each such agency is authorized and directed to furnish, to the extent permitted by law, any information requested by the Council.

“(d) Gifts.—The Council—“(1) may accept money and other property donated, bequeathed, or devised to the Council without condition or restriction (other than that it be used to carry out the work of the Council); and

“(2) may use, sell, or otherwise dispose of any such property to carry out its functions under this Act, except that, upon the termination of the Council, any such property shall be disposed of in accordance with applicable provisions of law governing the disposal of Federal property.

“SEC. 8. REPORTS.“The Council shall transmit to the President and each House of the Congress—“(1) within 1 and 2 years, respectively, after the date on which the Council first meets, reports containing its preliminary findings and recommendations; and

“(2) within 3 years after the date on which the Council first meets, a final report containing a detailed statement of the findings and conclusions of the Council, together with its recommendations for such legislation or administrative actions as it considers appropriate.

“SEC. 9. COMMENCEMENT; TERMINATION.“(a) Commencement.—Appointments under section 5 shall be made, and the Council shall first meet, within 90 days after the date of the enactment of this Act [Aug. 14, 1990].

“(b) Termination.—The Council shall cease to exist upon transmitting its final report under section 8(2).

“SEC. 10. AUTHORIZATION.“There is authorized to be appropriated such sums as may be necessary to carry out this Act.”

Executive Documents

Ex. Ord. No. 8743. Extending the Classified Civil Service
Ex. Ord. No. 8743, Apr. 23, 1941, as amended by Ex. Ord. No. 9230, Aug. 20, 1942; Ex. Ord. No. 9678, Jan. 14, 1946; Ex. Ord. No. 9712, Apr. 13, 1946; Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:
By virtue of the authority vested in me by section 1 of the act of November 26, 1940, entitled “Extending the Classified Executive Civil Service of the United States” (54 Stat. 1211), by the Civil Service Act (22 Stat. 403), and by section 1753 of the Revised Statutes of the United States [sections 3301 and 7301 of this title], it is hereby ordered as follows:
Section 1. All offices and positions in the executive civil service of the United States except (1) those that are temporary, (2) those expressly excepted from the provisions of section 1 of the said act of November 26, 1940, (3) those excepted from the classified service under Schedules A and B of the Civil Service Rules, and (4) those which now have a classified status, are hereby covered into the classified civil service of the Government.
Section 2. Section 1 of this order shall become effective on January 1, 1942, except that as to positions affected thereby which are vacant at any time after June 30, 1941, and before January 1, 1942, it shall become effective when the vacancies first exist during such period, and appointments to such vacant positions shall be made in accordance with the Civil Service Rules as amended by section 3 of this order, unless prior express permission is given by the Office of Personnel Management for appointment without regard thereto.
Section 3. (a) Upon consideration of the report of the Committee on Civil Service Improvement (House Document No. 118, 77th Congress) appointed by Executive Order No. 8044 of January 31, 1939, it is hereby found and determined that the regulations and procedures hereinafter prescribed in this section with respect to attorney positions in the classified civil service are required by the conditions of good administration.
(b) There is hereby created in the Office of Personnel Management (hereinafter referred to as the Office) a board to be known as the Board of Legal Examiners (hereinafter referred to as the Board). The Board shall consist of the Solicitor General of the United States and the chief law officer of the Office of Personnel Management, as members ex officio, and nine members to be appointed by the President, four of whom shall be attorneys chosen from the chief officers of the Executive departments, agencies or corporate instrumentalities of the Government, two from the law-teaching profession, and three from attorneys engaged in private practice. The President shall designate the chairman of the Board. Five members shall constitute a quorum, and the Board may transact business notwithstanding vacancies thereon. Members of the Board shall receive no salary as such, but shall be entitled to necessary expenses incurred in the performance of their duties hereunder.
(c) It shall be the duty of the Board to promote the development of a merit system for the recruitment, selection, appointment, promotion, and transfer of attorneys in the classified civil service in accordance with the general procedures outlined in Plan A of the report of the Committee on Civil Service Improvement, appointed by Executive Order No. 8044 of January 31, 1939.
(d) The Board, in consultation with the Office, shall determine the regulations and procedures under this section governing the recruitment and examination of applicants for attorney positions, and the selection, appointment, promotion and transfer of attorneys, in the classified service.
(e) The Office shall in the manner determined by the Board establish a register or registers for attorney positions in the classified service and such positions shall thereafter be filled from such registers as are designated by the Board. Unless otherwise determined by the Board, any register so established shall not be in effect for a period longer than one year from the date of its establishment. Upon request of the Board, the Office shall appoint regional or local boards of examiners composed of persons approved by the Board, within or without the Federal service, to interview and examine applicants as the Board shall direct.
(f) The number of names to be placed upon any register of eligibles for attorney positions shall be limited to the number recommended by the Board; and such registers shall not be ranked according to the ratings received by the eligibles, except that persons entitled to veterans’ preference as defined in section 1 of Civil Service Rule VI shall be appropriately designated thereon.
(g) Any person whose name has been placed upon three registers of eligibles covering positions of the same grade, and who has not been appointed therefrom, shall not thereafter be eligible for placement upon any subsequently established register covering positions of such grade.
(h) So far as practicable and consistent with good administration, the eligibles on any register for attorney positions and appointments for such register shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained in the last preceding census. The Office shall certify to the appointing officer for each vacancy all the eligibles on the appropriate register except those whose appointment would, in the determination of the Board, be inconsistent with the apportionment policy herein prescribed. The appointing officer shall make selections for any vacancy or vacancies in attorney positions from the register so certified, with sole reference to merit and fitness.
(i) Any position affected by this section may be filled before appropriate registers have been established pursuant to this section only by a person whose appointment is approved by the Board. The Board may require as a condition of its approval that persons thus proposed for appointment pass a noncompetitive examination and may designate examining committees composed of persons within or without the Federal service to conduct such examinations. Persons whose appointment was approved by the Board prior to March 16, 1942, and who pass a noncompetitive examination prescribed by the Board shall be eligible for a classified civil-service status after the expiration of six months from the date of appointment upon compliance with the provisions of Section 6 of Civil Service Rule II other than those provisions relating to examination. Effective March 16, 1942, all appointments to attorney and law clerk (trainee) positions shall be for the duration of the present war and for six months thereafter unless specifically limited to a shorter period.
(j) The incumbent of any attorney position covered into the classified service by section 1 of this order may acquire a classified civil-service status in accordance with the provisions of Section 2(a) of the act of November 26, 1940 (54 Stat. 1211) or, in the discretion of the Board and when applicable, Section 6, of Civil Service Rule II: Provided, That the noncompetitive examination required thereunder shall be prescribed by the Office with the approval of the Board.
(k) The Office with the approval of the Board shall appoint a competent person to act as Executive Secretary to the Board; and the Office shall furnish such further professionals, clerical, stenographic, and other assistants as may be necessary to carry out the provisions of this section.
(l) The Civil Service Rules are hereby amended to the extent necessary to give effect to the provisions of this section.
Section 4. The noncompetitive examinations prescribed pursuant to sections 3 and 6 of this order and section 2(a) of the said act of November 26, 1940, shall, among other things, require any person taking such examination to meet such reasonable standards of physical fitness and personal suitability as the Office of Personnel Management may prescribe.
Section 5. Persons who on the effective date of section 1 of this order are on furlough or leave without pay from any position covered into the classified service by that section may be recalled to duty within one year of the date that they are furloughed or given leave without pay, and may be continued in such positions thereafter but shall not thereby acquire a classified civil-service status. If they are not recalled to duty within the time specified herein, they shall be separated from the service.
Section 6. (a) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position (other than a temporary position) which is covered into the classified civil service under section 1 of this order, shall be reinstated in such position or to a position of like seniority, status, and pay in the same department or agency, and may, upon reinstatement, acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, (2) that he makes application for reinstatement within 90 days after termination of his service with the armed forces or of hospitalization continuing after discharge for a period of not more than one year, and (3) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.
(b) Any person who, in order to perform active service with the military or naval forces of the United States, has left a position in any department or agency (other than a temporary position) which is covered into the classified civil service under section 1 of this order, may, upon his applications and upon the request of the head of the same or any other department or agency, be reinstated in any position for which the Office finds he is qualified, and upon reinstatement shall acquire a classified civil-service status: Provided, (1) that he has been honorably discharged from the military or naval service, and (2) that he qualifies in such suitable noncompetitive examination as the Office may prescribe.
Section 7. Executive Order No. 8044 of January 31, 1939, is hereby revoked so far as it applies to positions covered into the classified civil service by this order.

Executive Order No. 9367
Ex. Ord. No. 9367, Aug. 4, 1943, 8 F.R. 11017, which prohibited, with certain exceptions, instructions of applicants for civil service and foreign service examinations by officers or employees of the government, was revoked by Ex. Ord. No. 11408, Apr. 25, 1968, 33 F.R. 6459.

Ex. Ord. No. 10577. Civil Service Rules
Ex. Ord. No. 10577, Nov. 22, 1954, 19 F.R. 7521, eff. Jan. 23, 1955, as amended by Ex. Ord. No. 10675, Aug. 21, 1956, 21 F.R. 6327; Ex. Ord. No. 10745, Dec. 12, 1957, 22 F.R. 10025; Ex. Ord. No. 12107, § 2–101(a), Dec. 28, 1978, 44 F.R. 1055, amended generally the Civil Service Rules, provided for transition from the indefinite appointment system to the career-conditional appointment system, and revoked Ex. Ord. No. 9830, Feb. 24, 1947, 12 F.R. 1259; Ex. Ord. No. 9973, June 28, 1948, 13 F.R. 3600; Ex. Ord. No. 10180, Nov. 13, 1950, 15 F.R. 7745; Ex. Ord. No. 10440, Mar. 31, 1953, 18 F.R. 1823; and Ex. Ord. No. 10463, June 25, 1953, 18 F.R. 3655. The Civil Service Rules are set out in Parts 1 to 10 of Title 5, Code of Federal Regulations. The Civil Service Rules were also amended by the following Executive Orders:
Ex. Ord. No. 10641, Oct. 26, 1955, 20 F.R. 8137, as amended by Ex. Ord. No. 12107, § 2–101(a), Dec. 28, 1978, 44 F.R. 1055.
Ex. Ord. No. 10869, Mar. 9, 1960, 25 F.R. 2073.
Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729, as amended by Ex. Ord. No. 12107, § 2–101(a), Dec. 28, 1978, 44 F.R. 1055.
Ex. Ord. No. 11839, Feb. 15, 1975, 40 F.R. 7351.
Ex. Ord. No. 11856, May 7, 1975, 40 F.R. 20259.
Ex. Ord. No. 11887, Nov. 4, 1975, 40 F.R. 51411.
Ex. Ord. No. 11935, Sept. 2, 1976, 41 F.R. 37301, as amended by Ex. Ord. No. 12107, § 2–101(a), Dec. 28, 1978, 44 F.R. 1055.
Ex. Ord. No. 12021, Nov. 30, 1977, 42 F.R. 61237.
Ex. Ord. No. 12043, Mar. 7, 1978, 43 F.R. 9773, as amended by Ex. Ord. No. 12107, § 2–101(a), Dec. 28, 1978, 44 F.R. 1055.
Ex. Ord. No. 12125, Mar. 15, 1979, 44 F.R. 16879.
Ex. Ord. No. 12148, § 5–212, July 20, 1979, 44 F.R. 43239, set out in a note under section 5195 of Title 42, The Public Health and Welfare.
Ex. Ord. No. 12300, Mar. 23, 1981, 46 F.R. 18683, superseded by Ex. Ord. No. 12940, Nov. 28, 1994, 59 F.R. 61519.
Ex. Ord. No. 12748, § 6(a), formerly § 8(a), Feb. 1, 1991, 56 F.R. 4521, as amended, set out as a note under section 5301 of this title.
Ex. Ord. No. 12896, Feb. 3, 1994, 59 F.R. 5515.
Ex. Ord. No. 12940, Nov. 28, 1994, 59 F.R. 61519.
Ex. Ord. No. 13124, § 2(b), June 4, 1999, 64 F.R. 31103.
Ex. Ord. No. 13197, Jan. 18, 2001, 66 F.R. 7853.
Ex. Ord. No. 13764, § 1, Jan. 17, 2017, 82 F.R. 8115.
Ex. Ord. No. 13843, § 3(a), July 10, 2018, 83 F.R. 32756.
Ex. Ord. No. 14029, § 3, May 14, 2021, 86 F.R. 27025.

Executive Order No. 10590
Ex. Ord. No. 10590, Jan. 18, 1955, 20 F.R. 409, as amended by Ex. Ord. No. 10722, Aug. 7, 1957, 22 F.R. 6287; Ex. Ord. No. 10773, July 1, 1958, 23 F.R. 5061; Ex. Ord. No. 10782, Sept. 8, 1958, 23 F.R. 6971, which established the President’s Committee on Government Employment Policy, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Executive Order No. 10880
Ex. Ord. No. 10880, June 7, 1960, 25 F.R. 5131, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, which provided for conversion of indefinite or temporary appointments to career or career-conditional appointments, was revoked by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617.

Executive Order No. 10925
Ex. Ord. No. 10925, Mar. 7, 1961, 26 F.R. 1977, as amended by Ex. Ord. No. 11114, June 24, 1963, 28 F.R. 6485; Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which established the President’s Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Executive Order No. 11114
Ex. Ord. No. 11114, June 24, 1963, 28 F.R. 6485, as amended by Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which extended the authority of the President’s Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Ex. Ord. No. 11141. Discrimination on the Basis of Age
Ex. Ord. No. 11141, Feb. 12, 1964, 29 F.R. 2477, provided:
WHEREAS the principle of equal employment opportunity is now an established policy of our Government and applies equally to all who wish to work and are capable of doing so; and
WHEREAS discrimination in employment because of age, except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, is inconsistent with that principle and with the social and economic objectives of our society; and
WHEREAS older workers are an indispensable source of productivity and experience which our Nation can ill afford to lose; and
WHEREAS President Kennedy, mindful that maximum national growth depends on the utilization of all manpower resources, issued a memorandum on March 14, 1963, reaffirming the policy of the Executive Branch of the Government of hiring and promoting employees on the basis of merit alone and emphasizing the need to assure that older people are not discriminated against because of their age and receive fair and full consideration for employment and advancement in Federal employment; and
WHEREAS, to encourage and hasten the acceptance of the principle of equal employment opportunity for older persons by all sectors of the economy, private and public, the Federal Government can and should provide maximum leadership in this regard by adopting that principle as an express policy of the Federal Government not only with respect to Federal employees but also with respect to persons employed by contractors and subcontractors engaged in the performance of Federal contracts:
NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes of the United States and as President of the United States, I hereby declare that it is the policy of the Executive Branch of the Government that (1) contractors and subcontractors engaged in the performance of Federal contracts shall not, in connection with the employment, advancement, or discharge of employees, or in connection with the terms, conditions, or privileges of their employment, discriminate against persons because of their age except upon the basis of a bona fide occupational qualification, retirement plan, or statutory requirement, and (2) that contractors and subcontractors, or persons acting on their behalf, shall not specify, in solicitations or advertisements for employees to work on Government contracts, a maximum age limit for such employment unless the specified maximum age limit is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. The head of each department and agency shall take appropriate action to enunciate this policy, and to this end the Federal Procurement Regulations and the Armed Services Procurement Regulation shall be amended by the insertion therein of a statement giving continuous notice of the existence of the policy declared by this order.

Lyndon B. Johnson.

Executive Order No. 11162
Ex. Ord. No. 11162, July 28, 1964, 29 F.R. 10563, which related to membership of the President’s Committee on Equal Employment Opportunity, was superseded by Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, set out as a note under section 2000e of Title 42, The Public Health and Welfare.

Executive Order No. 11202
Ex. Ord. No. 11202, Mar. 5, 1965, 30 F.R. 3185, which established career or career-conditional appointments for student trainees, was revoked by Ex. Ord. No. 11813, Oct. 7, 1974, 39 F.R. 36317, formerly set out below.

Ex. Ord. No. 11203. Career Appointments to Certain Qualified Employees of Treasury Department
Ex. Ord No. 11203, Mar. 12, 1965; 30 F.R. 3417, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:
By virtue of the authority vested in me by Section 2 of the Civil Service Act (22 Stat. 403) and Section 1753 of the Revised Statutes of the United States (5 U.S.C. 631) [sections 3301 and 7301 of this title] and as President of the United States, it is hereby ordered as follows—
Section 1. Any employee of the Treasury Department serving under an appointment under Schedule B of the Civil Service Rules in a position concerned with the protection of the life and safety of the President, members of his immediate family, or other persons for whom similar protective services are provided by law (which responsibility is hereinafter referred to as the protective function) may have his appointment converted to a career appointment if:
(1) he has completed at least three years of full-time continuous service in a position concerned with the protective function;
(2) The Secretary of the Treasury, or his designee, recommends the conversion of the employee’s appointment within 90 days after the employee meets the service requirements of this section, or within 90 days after the date of this Order, whichever is later;
(3) he shall have passed a competitive examination appropriate for the position he is occupying or meets noncompetitive examination standards the Office of Personnel Management prescribes for his position; and
(4) he meets all other requirements prescribed by the Office pursuant to Section 5 of this Order.
Sec. 2. For the purposes of Section 1—
(1) “full-time continuous service” means service without a break of more than 30 calendar days;
(2) except as provided in paragraph (3) of this section, active service in the Armed Forces of the United States shall be deemed to be full-time continuous service in a position concerned with the protective function if the employee concerned shall have left a position concerned with the protective function to enter the Armed Forces and shall have been re-employed in a position concerned with the protective function within 120 days after he shall have been discharged from the Armed Forces under honorable conditions; and
(3) active service in the Armed Forces shall not be deemed to be full-time continuous service in a position concerned with the protective function if such active service exceeds a total of four years plus any period of additional service imposed pursuant to law.
Sec. 3. Any employee who shall have left a position concerned with the protective function to enter active service in the Armed Forces of the United States, who is re-employed in such a position within 120 days after his discharge under honorable conditions from such service, and who meets the requirements of Section 1 as the result of being credited with his period of active service in the Armed Forces pursuant to Section 2(2), may have his appointment converted if the Secretary of the Treasury or his designee, recommends that conversion within 90 days after his re-employment.
Sec. 4. Whenever the Secretary of the Treasury, or his designee, decides not to recommend conversion of the appointment of an employee under this Order or whenever the Secretary, or his designee, recommends conversion and the employee fails to qualify, the employee shall be separated by the date on which his current Schedule B appointment expires.
Sec. 5. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purposes of this Order.

Ex. Ord. No. 11219. Appointment in Competitive Service of Foreign Service Officers and Employees
Ex. Ord. No. 11219, May 6, 1965, 30 F.R. 6381, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12292, Feb. 23, 1981, 46 F.R. 13967, provided:
By virtue of the authority vested in me by section 1753 of the Revised Statutes [sections 3301 and 7301 of this title] and the Civil Service Act (22 Stat. 403), and as President of the United States, it is hereby ordered as follows:
Section 1. Under regulations and conditions prescribed by the Office of Personnel Management, a present or former member of the Foreign Service may be appointed in the competitive service if he:
(a) Is qualified for the position in the competitive service;
(b) Was appointed in the Foreign Service under authority of the Foreign Service Act of 1946 as amended [former section 801 et seq. of Title 22, Foreign Relations and Intercourse], the Foreign Service Act of 1980 [section 3901 et seq. of Title 22], or legislation that supplements or replaces the latter Act;
(c) Served in the Foreign Service under an unlimited, career-type appointment and, immediately before his separation from that appointment, he completed at least one year of continuous service under one or more nontemporary appointments in the Foreign Service which may include the service that made him eligible for his career-type appointment; and
(d) Is appointed within 3 years after his separation from the Foreign Service, or he completed at least 3 years of substantially continuous service under one or more nontemporary appointments in the Foreign Service immediately before his separation from the unlimited, career-type appointment in that Service which may include the service that made him eligible for such appointment, or he is entitled to preference under section 2 of the Veterans’ Preference Act of 1944, as amended [sections 1302 and 2108 of this title].
Sec. 2. (a) Except as provided in paragraph (b) of this section, a person appointed under Section 1 of this Order becomes a career conditional employee.
(b) A person appointed under Section 1 of this Order becomes a career employee when he:
(1) Has completed at least 3 years of substantially continuous service under one or more nontemporary appointments in the Foreign Service immediately before his separation from the unlimited, career-type appointment in that Service which may include the service that made him eligible for such appointment;
(2) Is appointed to a position in the competitive service required by law or Executive order to be filled on a permanent or career basis; or
(3) Has completed the service requirement for career tenure in the competitive service.
For the purpose of subparagraph (3) of this paragraph, service in the Foreign Service is creditable in meeting the service requirement only if the person concerned is appointed to a nontemporary position in the competitive service under Section 1 of this Order within 30 days after his separation from the Foreign Service.
Sec. 3. A person appointed to a nontemporary position in the competitive service under Section 1 of this Order acquires a competitive status automatically on appointment.
Sec. 4. Any law, Executive order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under Section 1 of this Order.
Sec. 5. For the purpose of this Order, a person is deemed to be a member of the “Foreign Service” if he was appointed in any agency under authority of the Foreign Service Act of 1946, as amended [former section 801 et seq. of Title 22, Foreign Relations and Intercourse], the Foreign Service Act of 1980 [section 3901 et seq. of Title 22], or legislation that supplements or replaces the latter Act.

Executive Order No. 11315
Ex. Ord. No. 11315, Nov. 17, 1966, 31 F.R. 14729, as amended by Ex. Ord. No. 12107, § 2–101(a), Dec. 28, 1978, 44 F.R. 1055, added Civil Service Rule IX and amended Civil Service Rule VI, provided for transition to the full establishment of executive assignments under Rule IX, and delegated responsibility for the administration of the executive assignment system established by this Order to the Office of Personnel Management and heads of agencies affected by Rule IX. Civil Service Rule IX, as established by this Order, was revoked by Ex. Ord. No. 12748, § 8(a), Feb. 1, 1991, 56 F.R. 4521, set out under section 5301 of this title.

Executive Order No. 11598
Ex. Ord. No. 11598, June 16, 1971, 36 F.R. 11711, formerly set out as a note under this section, which related to the listing of certain job vacancies by federal agencies and government contractors and subcontractors, was superseded by Ex. Ord. No. 11701, Jan. 24, 1973, 38 F.R. 2675, set out as a note under section 4212 of Title 38, Veterans’ Benefits.

Executive Order No. 11813
Ex. Ord. No. 11813, Oct. 7, 1974, 39 F.R. 36317, which related to career or career-conditional appointments for cooperative education students, was revoked by Ex. Ord. No. 12015, Oct. 26, 1977, 42 F.R. 56947, formerly set out below.

Ex. Ord. No. 11955. Career or Career-Conditional Appointment to Certain Qualified Employees of National Aeronautics and Space Administration
Ex. Ord. No. 11955, Jan. 10, 1977, 42 F.R. 2499, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:
By virtue of the authority vested in me by section 3301 of title 5 of the United States Code [this section], and as President of the United States of America, it is hereby ordered as follows:
Section 1. The appointment of a Command Pilot, Pilot or Mission Specialist candidate to a position in the Space Shuttle Astronaut Program of the National Aeronautics and Space Administration, which is listed under Schedule B of the Schedule of Excepted Positions, may be converted to career or career-conditional appointment if:
(a) the candidate has successfully completed two years of service as a candidate in an appropriate training program;
(b) the Administrator of the National Aeronautics and Space Administration, or the Administrator’s designee, recommends the conversion of the candidate’s appointment within ninety days of completion of the requirements of section 1(a);
(c) the candidate meets noncompetitive examination standards prescribed by the Office of Personnel Management; and
(d) the candidate meets all other requirements prescribed by the Office of Personnel Management pursuant to section 3 of this order.
Sec. 2. Whenever the Administrator of the National Aeronautics and Space Administration, or the Administrator’s designee, decides not to recommend conversion of an appointment under this order or whenever the Administrator, or the Administrator’s designee, recommends conversion and the candidate fails to qualify, the candidate shall be separated not later than the date of expiration of the current Schedule B appointment, unless the appointment can be converted through appropriate competitive examination or the candidate can be assigned to a suitable position under another excepted authority prior to the expiration date.
Sec. 3. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purpose of this order.

Executive Order No. 12008
Ex. Ord. No. 12008, Aug. 25, 1977, 42 F.R. 43373, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, which established a Presidential Management Intern Program, was revoked by Ex. Ord. No. 12364, May 24, 1982, 47 F.R. 22931, formerly set out below.

Executive Order No. 12015
Ex. Ord. No. 12015, Oct. 26, 1977, 42 F.R. 56947, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 13024, Nov. 7, 1996, 61 F.R. 58125, which related to career or career-conditional appointments in competitive service for students completing approved career-related work-study programs, was revoked by Ex. Ord. No. 13562, § 8(b), Dec. 27, 2010, 75 F.R. 82588, set out below, on the effective date of final regulations promulgated by the Director of OPM to implement the Internship Program [July 10, 2012, see 77 F.R. 28194].

Executive Order No. 12026
For provisions relating to eligibility for reinstatement in the competitive civil service of certain employees of the Energy Department, see Ex. Ord. No. 12026, Dec. 5, 1977, 42 F.R. 61849, set out as a note under section 7292 of Title 42, The Public Health and Welfare.

Executive Order No. 12257
Ex. Ord. No. 12257, Dec. 18, 1980, 45 F.R. 84005, which provided for noncompetitive conversion of participants in the Comprehensive Employment and Training Act program to career or career-conditional Civil Service status, was revoked by Ex. Ord. No. 12553, Feb. 25, 1986, 51 F.R. 7237.

Executive Order No. 12362
Ex. Ord. No. 12362, May 12, 1982, 47 F.R. 21231, as amended by Ex. Ord. No. 12585, Mar. 3, 1987, 52 F.R. 6773, which related to appointment to competitive status of certain overseas employees upon return to the United States, was revoked by Ex. Ord. No. 12721, July 30, 1990, 55 F.R. 31349, set out below.

Executive Order No. 12364
Ex. Ord. No. 12364, May 24, 1982, 47 F.R. 22931, as amended by Ex. Ord. No. 12645, July 12, 1988, 53 F.R. 26750, which related to the Presidential Management Intern Program, was superseded by Ex. Ord. No. 13318, Nov. 21, 2003, 68 F.R. 66317, formerly set out below.

Ex. Ord. No. 12505. Career Appointments to Certain Office of Management and Budget Employees
Ex. Ord. No. 12505, Feb. 12, 1985, 50 F.R. 6151, provided:
By the authority vested in me as President by the laws of the United States of America, including Section 3301 and 3302 of Title 5, and Section 521 of Title 31 of the United States Code, it is hereby ordered as follows:
Section 1. No later than April 1, 1985, any employee of the Office of Management and Budget serving under an appointment under Schedule A in a position not limited to one year or less, concerned with implementation of the President’s paperwork reduction and regulatory review and planning programs, may have his or her appointment converted to a career or career-conditional appointment if the Director of the Office of Management and Budget determines that:
(a) The employee has completed at least one year of full-time continuous service in a position concerned with the paperwork reduction and regulatory program;
(b) There is a continuing need for the position filled by the employee;
(c) The employee’s past performance has been satisfactory and the employee possesses the qualifications necessary to continue in the position; and
(d) The employee meets the citizenship requirements and qualification standards appropriate for the position.
Sec. 2. If the Director determines not to convert an employee’s appointment to career or career-conditional status under the preceding Section, the employee shall be separated not later than the date of expiration of the current appointment.
Sec. 3. Employees whose appointments are converted under this Order shall become career-conditional employees, or career employees if they have completed the service requirements for career tenure, and all converted employees shall acquire a competitive status.

Ronald Reagan.

Executive Order No. 12596
Ex. Ord. No. 12596, May 7, 1987, 52 F.R. 17537, which provided for noncompetitive conversion to career status of certain employees in professional and administrative career positions, was revoked by Ex. Ord. No. 13162, July 6, 2000, 65 F.R. 43212, set out as a note below.

Ex. Ord. No. 12685. Noncompetitive Conversion of Personal Assistants to Employees With Disabilities
Ex. Ord. No. 12685, July 28, 1989, 54 F.R. 31796, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Upon recommendation by the employing agency, and subject to qualifications and other requirements prescribed by the Office of Personnel Management, an employee in a position in the excepted service under 5 C.F.R. 213.3102(11) as a reader, interpreter, or personal assistant for a handicapped employee, whose employment in such position is no longer necessary and who has completed at least 1 year of satisfactory service in such position under a non-temporary appointment, may be converted noncompetitively to a career or career-conditional appointment.
Sec. 2. This order shall be effective upon publication in the Federal Register.

George Bush.

Ex. Ord. No. 12718. President’s Advisory Commission on the Public Service
Ex. Ord. No. 12718, June 29, 1990, 55 F.R. 27451, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Federal Advisory Committee Act, as amended (5 U.S.C. App.), and in order to provide a continuing source of advice on the public service from outstanding leaders in various walks of private life, it is hereby ordered as follows:
Section 1. Establishment. The President’s Advisory Commission on the Public Service (“Commission”) is hereby established. The Commission shall be comprised of 13 members to be appointed by the President from among leading citizens in private life. The members shall be appointed for 2-year terms, except that initial appointments shall include six members appointed to serve 1-year terms. Any vacancy in the Commission shall be filled by an appointment for the remainder of the term for which the original appointment was made, and a member whose term has expired may serve until his or her successor has been appointed. The President shall designate one of the members of the Commission to serve as Chairperson.
Sec. 2. Functions. (a) The Commission shall meet from time to time at the request of the Chairperson and shall consider ways to enhance the public service in American life, including:
(1) improving the efficiency and attractiveness of the Federal civil service;
(2) increasing the interest among American students in pursuing careers in the public service; and
(3) strengthening the image of the public service in American life.
(b) The Commission shall submit a report on its activities to the Director of the Office of Personnel Management and the President each year.
Sec. 3. Administrative Provisions. (a) The members of the Commission shall serve without compensation, but may receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.
(b) All executive agencies are directed, to the extent permitted by law, to provide such information, advice, and assistance to the Commission as the Commission may request.
(c) The Director of the Office of Personnel Management shall, to the extent permitted by law and subject to the availability of funds, provide the Commission with administrative services, staff support, and necessary expenses.
Sec. 4. General. Notwithstanding any other Executive order, the functions of the President under the Federal Advisory Committee Act, as amended [5 U.S.C. App.], except that of reporting to the Congress, which are applicable to the Commission, shall be performed by the Office of Personnel Management in accordance with the guidelines and procedures established by the Administrator of General Services.

George Bush.

Ex. Ord. No. 12721. Eligibility of Overseas Employees for Noncompetitive Appointments
Ex. Ord. No. 12721, July 30, 1990, 55 F.R. 31349, provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, including sections 3301 and 3302 of title 5 and section 301 of title 3 of the United States Code, and in order to permit certain overseas employees to acquire competitive status upon returning to the United States, it is hereby ordered as follows:
Section 1. A United States citizen who is a family member of a Federal civilian employee, of a nonappropriated fund employee, or of a member of a uniformed service and who meets the qualifications and other requirements established by the Director of the Office of Personnel Management, including an appropriate period of satisfactory service under one or more overseas appointments in the excepted or competitive civil service, may be appointed noncompetitively to a competitive service position in the executive branch within the United States (including Guam, Puerto Rico, and the Virgin Islands). The employing agency in the United States may waive a requirement for a written test for an individual appointed under this order if the agency determines that the duties and responsibilities of the position occupied overseas were similar enough to those of the position to which the individual is being appointed under this order to make the written test unnecessary.
Sec. 2. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.
Sec. 3. To the extent there is any conflict between this order and Civil Service Rule 8.2 (5 CFR 8.2), the provisions of this order shall control.
Sec. 4. (a) Executive Order No. 12362 of May 12, 1982, as amended, and Executive Order No. 12585 of March 3, 1987, are revoked.
(b) Existing regulations prescribed by the Director of the Office of Personnel Management under Executive Order No. 12362, as amended, shall continue in effect until modified or superseded by the Director of the Office of Personnel Management.
Sec. 5. This order shall be effective upon publication in the Federal Register.

George Bush.

Ex. Ord. No. 13124. Amending the Civil Service Rules Relating To Federal Employees With Psychiatric Disabilities
Ex. Ord. No. 13124, June 4, 1999, 64 F.R. 31103, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and in order to give individuals with psychiatric disabilities the same hiring opportunities as persons with severe physical disabilities or mental retardation under the Civil Service Rules, and to permit individuals with psychiatric disabilities to obtain Civil Service competitive status, it is hereby ordered as follows:
Section 1. Policy.
(a) It is the policy of the United States to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities. The Federal Government as an employer should serve as a model for the employment of persons with disabilities and utilize the full potential of these talented citizens.
(b) The Civil Service Rules governing appointment of persons with psychiatric disabilities were adopted years ago when attitudes about mental illness were different than they are today, which led to stricter standards for hiring persons with psychiatric disabilities than for persons with mental retardation or severe physical disabilities. The Civil Service Rules provide that persons with mental retardation, severe physical disabilities, or psychiatric disabilities may be hired under excepted appointing authorities. While persons with mental retardation or severe physical disabilities may be appointed for more than 2 years and may convert to competitive status after completion of 2 years of satisfactory service in their excepted position, people with psychiatric disabilities may not.
(c) The Office of Personnel Management (OPM) and the President’s Task Force on Employment of Adults with Disabilities believe that the Federal Government could better benefit from the contributions of persons with psychiatric disabilities if they were given the same opportunities available to people with mental retardation or severe physical disabilities.
Sec. 2. Implementation.
(a) The Director of the Office of Personnel Management shall, consistent with OPM authority, provide that persons with psychiatric disabilities are subject to the same hiring rules as persons with mental retardation or severe physical disabilities.
(b) [Amended Civil Service Rule III.]
Sec. 3. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.

William J. Clinton.

Executive Order No. 13162
Ex. Ord. No. 13162, July 6, 2000, 65 F.R. 43211, which established the Federal Career Intern Program and provided for its oversight by the Office of Personnel Management, was revoked, effective Mar. 1, 2011, by Ex. Ord. No. 13562, § 8(a), Dec. 27, 2010, 75 F.R. 82588, set out as a note below.

Executive Order No. 13318
Ex. Ord. No. 13318, Nov. 21, 2003, 68 F.R. 66317, which related to the Presidential Management Fellows Program, was revoked by Ex. Ord. No. 13562, § 8(c), Dec. 27, 2010, 75 F.R. 82588, set out below, on the effective date of final regulations promulgated by the Director of OPM to implement required changes to the PMF Program [July 10, 2012, see 77 F.R. 28194].

Ex. Ord. No. 13473. To Authorize Certain Noncompetitive Appointments in the Civil Service for Spouses of Certain Members of the Armed Forces
Ex. Ord. No. 13473, Sept. 25, 2008, 73 F.R. 56703, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy. It shall be the policy of the United States to provide for the appropriately expedited recruitment and selection of spouses of members of the Armed Forces for appointment to positions in the competitive service of the Federal civil service as part of the effort of the United States to recruit and retain in military service, skilled and experienced members of the Armed Forces and to recognize and honor the service of such members injured, disabled, or killed in connection with their service.
Sec. 2. Definitions. As used in this order:
(a) the term “agency” has the meaning specified for the term “executive agency” in section 105 of title 5, United States Code, but does not include the Government Accountability Office;
(b) the term “Armed Forces” has the meaning specified for that term in section 101 of title 10, United States Code;
(c) the term “active duty” means full-time duty in an armed force and includes full-time National Guard duty, except that, for Reserve Component members, the term “active duty” does not include training duties or attendance at service schools.
(d) the term “permanent change of station” means the assignment, detail, or transfer of a member of the Armed Forces serving at a present permanent duty station to a different permanent duty station under a competent authorization or order that does not:
(i) specify the duty as temporary;
(ii) provide for assignment, detail, or transfer, after that different permanent duty station, to a further different permanent duty station; or (iii) [sic] direct return to the present permanent duty station; and
(e) the term “totally disabled retired or separated member” means a member of the Armed Forces who:
(i) retired under chapter 61 of title 10, United States Code, with a disability rating at the time of retirement of 100 per cent; or (ii) [sic] retired or separated from the Armed Forces and has a disability rating of 100 percent from the Department of Veterans Affairs.
Sec. 3. Noncompetitive Appointment Authority. Consistent with the policy set forth in section 1 of this order and such regulations as the Director of the Office of Personnel Management may prescribe, the head of an agency may make a noncompetitive appointment to any position in the competitive service, for which the individual is qualified, of an individual who is:
(a) the spouse of a member of the Armed Forces who, as determined by the Secretary of Defense, is performing active duty pursuant to orders that authorize a permanent change of station move, if such spouse relocates to the member’s new permanent duty station;
(b) the spouse of a totally disabled retired or separated member of the Armed Forces; or
(c) the unremarried widow or widower of a member of the Armed Forces killed while performing active duty.
Sec. 4. Administrative Provisions. The heads of agencies shall employ, as appropriate, appointment authority available to them, in addition to the authority granted by section 3 of this order, to carry out the policy set forth in section 1.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; and
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative functions.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

George W. Bush.

Ex. Ord. No. 13518. Employment of Veterans in the Federal Government
Ex. Ord. No. 13518, Nov. 9, 2009, 74 F.R. 58533, provided:
By the authority vested in me by the Constitution and the laws of the United States of America, including section 301 of title 3 of the United States Code, I hereby order as follows:
Section 1. Policy. Veterans have served and sacrificed in defense of our Nation. When they complete their service, we must do everything in our power to assist them in re-entering civilian life and finding employment. Government as well as private employers should play a prominent role in helping veterans who may be struggling to find jobs. As one of the Nation’s leading employers, the Federal Government is in need of highly skilled individuals to meet agency staffing needs and to support mission objectives. Our veterans, who have benefited from training and development during their military service, possess a wide variety of skills and experiences, as well as the motivation for public service, that will help fulfill Federal agencies’ staffing needs. It is therefore the policy of my Administration to enhance recruitment of and promote employment opportunities for veterans within the executive branch, consistent with merit system principles and veterans’ preferences prescribed by law. The Federal Government will thereby help lead by example in promoting veterans’ employment.
Sec. 2. Council on Veterans Employment. There is hereby established an interagency Council on Veterans Employment (Council), to be co-chaired by the Secretaries of Labor and Veterans Affairs. The Director of the Office of Personnel Management (OPM) shall serve as Vice Chair of the Council.
(a) Mission and Function of the Council. The Council shall:
(i) advise and assist the President and the Director of OPM in establishing a coordinated Government-wide effort to increase the number of veterans employed by the Federal Government by enhancing recruitment and training;
(ii) serve as a national forum for promoting veterans’ employment opportunities in the executive branch; and
(iii) establish performance measures to assess the effectiveness of, and submit an annual report to the President on the status of, the Veterans Employment Initiative described in section 3 of this order.
(b) Membership of the Council. The Council shall consist of the heads of the following agencies and such other executive branch agencies as the President may designate:
(i) the Department of State;
(ii) the Department of the Treasury;
(iii) the Department of Defense;
(iv) the Department of Justice;
(v) the Department of the Interior;
(vi) the Department of Agriculture;
(vii) the Department of Commerce;
(viii) the Department of Labor;
(ix) the Department of Health and Human Services;
(x) the Department of Housing and Urban Development;
(xi) the Department of Transportation;
(xii) the Department of Energy;
(xiii) the Department of Education;
(xiv) the Department of Veterans Affairs;
(xv) the Department of Homeland Security;
(xvi) the Environmental Protection Agency;
(xvii) the National Aeronautics and Space Administration;
(xviii) the Agency for International Development;
(xix) the General Services Administration;
(xx) the National Science Foundation;
(xxi) the Nuclear Regulatory Commission;
(xxii) the Office of Personnel Management;
(xxiii) the Small Business Administration; and
(xxiv) the Social Security Administration.
A member of the Council may designate, to perform the Council functions of the member, a senior official who is part of the member’s agency, and who is a full-time officer or employee of the Federal Government.
(c) Administration of the Council. The Co-Chairs shall convene meetings of the Council, determine its agenda, and direct its work. At the direction of the Co-Chairs, the Council may establish subgroups consisting exclusively of Council members or their designees, as appropriate. The Vice Chair shall designate an Executive Director for the Council to support the Vice Chair in managing the Council’s activities. The OPM shall provide administrative support for the Council to the extent permitted by law and within existing appropriations.
(d) Steering Committee. There is established within the Council a Steering Committee consisting of the Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security, the Director of OPM, and any other Council member designated by the Co-Chairs. The Steering Committee shall be responsible for providing leadership, accountability, and strategic direction to the Council.
Sec. 3. Veterans Employment Initiative. The agencies represented on the Council shall participate in a Veterans Employment Initiative (Initiative). Under the Initiative, each participating agency shall, to the extent permitted by law:
(a) develop an agency-specific Operational Plan for promoting employment opportunities for veterans, consistent with the Government-wide Veterans Recruitment and Employment Strategic Plan described in section 4 of this order, merit system principles, the agency’s strategic human capital plan, and other applicable workforce planning strategies and initiatives;
(b) within 120 days of the date of this order, establish a Veterans Employment Program Office, or designate an agency officer or employee with full-time responsibility for its Veterans Employment Program, to be responsible for enhancing employment opportunities for veterans within the agency, consistent with law and merit system principles, including developing and implementing the agency’s Operational Plan, veterans recruitment programs, and training programs for veterans with disabilities, and for coordinating employment counseling to help match the career aspirations of veterans to the needs of the agency;
(c) provide mandatory annual training to agency human resources personnel and hiring managers concerning veterans’ employment, including training on veterans’ preferences and special authorities for the hiring of veterans;
(d) identify key occupations for which the agency will provide job counseling and training to better enable veterans to meet agency staffing needs associated with those occupations; and
(e) coordinate with the Departments of Defense and Veterans Affairs to promote further development and application of technology designed to assist transitioning service members and veterans with disabilities.
Sec. 4. Additional Responsibilities of the Director of the Office of Personnel Management. The Director of OPM shall, in consultation with the Council and to the extent permitted by law:
(a) develop a Government-wide Veterans Recruitment and Employment Strategic Plan, to be updated at least every 3 years, addressing barriers to the employment of veterans in the executive branch and focusing on:
(i) identifying actions that agency leaders should take to improve employment opportunities for veterans;
(ii) developing the skills of transitioning military service members and veterans;
(iii) marketing the Federal Government as an employer of choice to transitioning service members and veterans;
(iv) marketing the talent, experience, and dedication of transitioning service members and veterans to Federal agencies; and
(v) disseminating Federal employment information to veterans and hiring officials;
(b) provide Government-wide leadership in recruitment and employment of veterans in the executive branch;
(c) identify key occupations, focusing on positions in high-demand occupations where talent is needed to meet Government-wide staffing needs, for which the Federal Government will provide job counseling and training under section 5(a) of this order to veterans and transitioning military service personnel;
(d) develop mandatory training for both human resources personnel and hiring managers on veterans’ employment, including veterans’ preference and special hiring authorities;
(e) compile and post on the OPM website Government-wide statistics on the hiring of veterans; and
(f) within 1 year of the date of this order and with the advice of the Council, provide recommendations to the President on improving the ability of veterans’ preference laws to meet the needs of the new generation of veterans, especially those transitioning from the conflicts in Iraq and Afghanistan, and the needs of Federal hiring officials.
Sec. 5. Responsibilities of the Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security. The Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security shall take the following actions, to the extent permitted by law:
(a) The Secretaries of Defense, Labor, Veterans Affairs, and Homeland Security shall, in consultation with OPM, develop and implement counseling and training programs to align veterans’ and transitioning service members’ skills and career aspirations to Federal employment opportunities, targeting Federal occupations that are projected to have heavy recruitment needs.
(b) The Secretary of Labor shall conduct employment workshops for veterans and transitioning military service personnel as part of the Transition Assistance Program (TAP), and integrate in those workshops information about the Federal hiring process, veterans’ preference laws, special hiring authorities, and Federal job opportunities.
(c) The Secretary of Defense and Secretary of Homeland Security (with respect to the Coast Guard) shall:
(i) reinforce military leadership’s commitment and support of the service members’ transition process; and
(ii) institute policies that encourage every eligible service member to take the opportunity to enroll in any or all of the four components of the TAP.
(d) The Secretaries of Labor and Veterans Affairs shall:
(i) assist veterans and transitioning service members in translating military skills, training, and education to Federal occupations through programs developed under subsection (a) of this section; and
(ii) provide training to employment and rehabilitation counselors on the Federal hiring process, veterans’ preferences, special hiring authorities, and identifying Federal employment opportunities for veterans.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13562. Recruiting and Hiring Students and Recent Graduates
Ex. Ord. No. 13562, Dec. 27, 2010, 75 F.R. 82585, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy. The Federal Government benefits from a diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives. The existing competitive hiring process for the Federal civil service, however, is structured in a manner that, even at the entry level, favors job applicants who have significant previous work experience. This structure, along with the complexity of the rules governing admission to the career civil service, creates a barrier to recruiting and hiring students and recent graduates. It places the Federal Government at a competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.
To compete effectively for students and recent graduates, the Federal Government must improve its recruiting efforts; offer clear paths to Federal internships for students from high school through post-graduate school; offer clear paths to civil service careers for recent graduates; and provide meaningful training, mentoring, and career-development opportunities. Further, exposing students and recent graduates to Federal jobs through internships and similar programs attracts them to careers in the Federal Government and enables agency employers to evaluate them on the job to determine whether they are likely to have successful careers in Government.
Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration (specifically, the need to promote employment opportunities for students and recent graduates in the Federal workforce) make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.
Sec. 2. Establishment. There are hereby established the Internship Program and the Recent Graduates Program, which, along with the Presidential Management Fellows Program, as modified herein, shall collectively be known as the Pathways Programs. I therefore direct the Director of the Office of Personnel Management (OPM) to issue regulations implementing the Pathways Programs consistent with this order, including:
(a) a description of the positions that executive departments and agencies (agencies) may fill through the Pathways Programs because conditions of good administration necessitate excepting those positions from the competitive hiring rules;
(b) rules governing whether, to what extent, and in what manner public notice should be provided of job opportunities in the Pathways Programs;
(c) a description of career-development, training, and mentorship opportunities for participants in the Pathways Programs;
(d) requirements that managers meaningfully assess the performance of participants in the Pathways Programs to identify those who should be considered for conversion to career civil service positions;
(e) a description of OPM oversight of agency use of the Pathways Programs to ensure that (i) they serve as a supplement to, and not a substitute for, the competitive hiring process, and (ii) agencies are using the Pathways Programs in a genuine effort to develop talent for careers in the civil service;
(f) a description of OPM plans to evaluate agencies’ effectiveness in recruiting and retaining talent using the Pathways Programs and of the satisfaction of Pathways Programs participants and their hiring managers; and
(g) standard naming conventions across agencies, so that students and recent graduates can clearly understand and compare the career pathway opportunities available to them in the Federal Government.
Sec. 3. Internship Program. The Internship Program shall provide students in high schools, community colleges, 4-year colleges, trade schools, career and technical education programs, and other qualifying educational institutions and programs, as determined by OPM, with paid opportunities to work in agencies and explore Federal careers while still in school. The Internship Program would replace the existing Student Career Experience Program, established pursuant to Executive Order 12015 of October 26, 1977. The following principles and policies shall govern the Internship Program:
(a) Participants in the program shall be referred to as “Interns” and shall be students enrolled, or accepted for enrollment, in qualifying educational institutions and programs, as determined by OPM.
(b) Subject to any exceptions OPM may establish by regulation, agencies shall provide Interns with meaningful developmental work and set clear expectations regarding the work experience of the intern.
(c) Students employed by third-party internship providers but placed in agencies may, to the extent permitted by OPM regulations, be treated as participants in the Internship Program.
Sec. 4. Recent Graduates Program. The Recent Graduates Program shall provide individuals who have recently graduated from qualifying educational institutions or programs with developmental experiences in the Federal Government intended to promote possible careers in the civil service. The following principles and policies shall govern the Recent Graduates Program:
(a) Participants in the program shall be referred to as “Recent Graduates” and must have obtained a qualifying degree, or completed a qualifying career or technical education program, as determined by OPM, within the preceding 2 years, except that veterans who, due to their military service obligation, were precluded from participating in the Recent Graduates Program during the 2-year period after obtaining a qualifying degree or completing a qualifying program shall be eligible to participate in the Program within 6 years of obtaining a qualifying degree or completing a qualifying program.
(b) Responsibilities assigned to a Recent Graduate shall be consistent with his or her qualifications, educational background, and career interests, the purpose of the Recent Graduates Program, and agency needs.
Sec. 5. Presidential Management Fellows Program. The Presidential Management Fellows (PMF) Program is an existing program established pursuant to Executive Order 13318 of November 21, 2003, that aims to attract to the Federal service outstanding men and women from a variety of academic disciplines at the graduate level who have a clear interest in, and commitment to, the leadership and management of public policies and programs. The following requirements shall govern the PMF Program upon the revocation of Executive Order 13318, as provided in section 8 of this order:
(a) Participants in this program shall continue to be known as Presidential Management Fellows (PMFs or Fellows) and must have received, within the preceding 2 years, a qualifying advanced degree, as determined by OPM.
(b) Responsibilities assigned to a PMF shall be consistent with the PMF’s qualifications, educational background, and career interests, the purposes of the PMF Program, and agency needs.
(c) OPM shall establish the eligibility requirements and minimum qualifications for the program, as well as a process for assessing eligible individuals for consideration for appointment as PMFs.
Sec. 6. Appointment and Conversion. (a) Appointments to any of the Pathways Programs shall be under Schedule D of the excepted service, as established by section 7 of this order.
(b) Appointments to the Recent Graduates or PMF Programs shall not exceed 2 years, unless extended by the employing agency for up to 120 days thereafter.
(c) Appointment to a Pathways Program shall confer no right to further Federal employment in either the competitive or excepted service upon the expiration of the appointment, except that agencies may convert eligible participants noncompetitively to term, career, or career conditional appointments after satisfying requirements to be established by OPM, and agencies may noncompetitively convert participants who were initially converted to a term appointment under this section to a career or career-conditional appointment before the term appointment expires.
Sec. 7. Implementation. (a) [Amended Civil Service Rule VI.]
(b) The Director of OPM shall:
(i) promulgate such regulations as the Director determines may be necessary to implement this order;
(ii) provide oversight of the Pathways Programs;
(iii) establish, if appropriate, a Government-wide cap on the number of noncompetitive conversions to the competitive service of Interns, Recent Graduates, or PMFs (or a Government-wide combined conversion cap applicable to all three categories together);
(iv) administer, and review and revise annually or as needed, any Government-wide cap established pursuant to this subsection;
(v) provide guidance on conducting an orderly transition from existing student and internship programs to the Pathways Programs established pursuant to this order; and
(vi) consider for publication in the Federal Register at an appropriate time a proposed rule seeking public comment on the elimination of the Student Temporary Employment Program, established through OPM regulations at 5 CFR 213.3202(a).
(c) In accordance with regulations prescribed pursuant to this order and applicable law, agencies shall:
(i) use appropriate merit-based procedures for recruitment, assessment, placement, and ongoing career development for participants in the Pathways Programs;
(ii) provide for equal employment opportunity in the Pathways Programs without regard to race, ethnicity, color, religion, sex, national origin, age, disability, sexual orientation, or any other non-merit-based factor;
(iii) apply veterans’ preference criteria; and
(iv) within 45 days of the date of this order, designate a Pathways Programs Officer (at the agency level, or at bureaus or components within the agency) to administer Pathways Programs, to serve as liaison with OPM, and to report to OPM on the implementation of the Pathways Programs and the individuals hired under them.
Sec. 8. Prior Executive Orders. (a) Effective March 1, 2011, Executive Order 13162 (Federal Career Intern Program) is superseded and revoked. Any individuals serving in appointments under that order on March 1, 2011, shall be converted to the competitive service, effective on that date, with no loss of pay or benefits.
(b) On the effective date of final regulations promulgated by the Director of OPM to implement the Internship Program, Executive Order 12015 (pursuant to which the Student Career Experience Program was established), as amended, is superseded and revoked.
(c) On the effective date of final regulations promulgated by the Director of OPM to implement changes to the PMF Program required by this order, Executive Order 13318 (Presidential Management Fellows Program), as amended, is superseded and revoked.
Sec. 9. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law, regulation, Executive Order, or Presidential Directive to an executive department, agency, or head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13678. Conversion Authority for Criminal Investigators (Special Agents) of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
Ex. Ord. No. 13678, Oct. 3, 2014, 79 F.R. 60949, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Providing Conversion Authority. I find that conditions of good administration (specifically, the need to make the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice (ATF), competitive in recruiting high quality special agents by giving the ATF an authority held by other Federal law enforcement agencies) make necessary an exception to the competitive examination rules for appointment to certain positions in the Federal civil service.
Criminal Investigators of the ATF, who have been appointed under Schedule B, and who have completed 3 years of fully satisfactory service, may be converted non-competitively to career appointments if they meet qualifications and other requirements established by the Director of the Office of Personnel Management.
Sec. 2. Implementation. The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to implement this order.
Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13704. Presidential Innovation Fellows Program
Ex. Ord. No. 13704, Aug. 17, 2015, 80 F.R. 50751, 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. Policy. It is in the national interest for the Federal Government to attract the brightest minds skilled in technology or innovative practices to serve in the Federal Government to work on some of the Nation’s biggest and most pressing challenges. This order establishes a program to encourage successful entrepreneurs, executives, and innovators to join the Federal Government and work in close cooperation with Federal Government leaders, to create meaningful solutions that can help save lives and taxpayer money, fuel job creation, and significantly improve how the Federal Government serves the American people.
Sec. 2. Establishment and Administration. (a) The Administrator of General Services (Administrator) shall establish the Presidential Innovation Fellows Program (Program) to enable exceptional individuals with proven track records to serve time-limited appointments in executive branch departments and agencies (agencies) to address some of the Nation’s most significant challenges and improve existing Government efforts that would particularly benefit from expertise using innovative techniques and technology. Individuals selected for the Program shall be known as Presidential Innovation Fellows (Fellows).
(b) The Program shall be administered by a Director, appointed by the Administrator under authorities of the General Services Administration (GSA). GSA shall provide necessary staff, resources and administrative support for the Program to the extent permitted by law and within existing appropriations.
(c) GSA shall appoint the Fellows and, in cooperation with agencies, shall facilitate placement of the Fellows to participate in projects that have the potential for significant positive effects and are consistent with the President’s goals.
Sec. 3. Advisory Board. (a) The Administrator shall establish an Advisory Board to advise the Director by recommending such priorities and standards as may be beneficial to fulfill the mission of the Program and assist in identifying potential projects and placements for Fellows. The Advisory Board will not participate in the Fellows’ selection process.
(b) The Administrator will designate a representative to serve as the Chair of the Advisory Board. In addition to the Chair, the membership of the Advisory Board shall include the Deputy Director for Management of the Office of Management and Budget, the Director of the Office of Personnel Management, the Office of Management and Budget’s Administrator of the Office of Electronic Government, and the Assistant to the President and Chief Technology Officer, or their designees and such other persons as may be designated by the Administrator. Consistent with law, the Advisory Board may consult with industry, academia, or non-profits to ensure the Program is continually identifying opportunities to apply advanced skillsets and innovative practices in effective ways to address the Nation’s most significant challenges.
Sec. 4. Application Process. (a) The Director, in accordance with applicable law, shall prescribe the process for applications and nominations of individuals to the Program.
(b) Following publication of these processes, the Director may accept for consideration applications from individuals. The Director shall establish, administer, review, and revise, if appropriate, a Government-wide cap on the number of Fellows.
The Director shall establish and publish salary ranges, benefits, and standards for the Program.
Sec. 5. Selection, Appointment, and Assignment of Fellows. (a) The Director, in accordance with applicable law, shall prescribe appropriate procedures for the selection, appointment, and assignment of Fellows.
(b) Prior to the selection of Fellows, the Director will consult with agencies and executive branch departments, regarding potential projects and how best to meet those needs. Following such consultation, the Director shall select and appoint individuals to serve as Fellows.
(c) The Fellows shall serve under short-term, time-limited appointments. As a general matter, they shall be appointed for no less than 6 months and no longer than 2 years in the Program. The Director shall facilitate the process of placing Fellows at requesting agencies and executive branch departments.
Sec. 6. Responsibilities of Agencies. Each executive branch department or agency, as defined in section 105 of title 5, United States Code, is encouraged to work with the Director and Advisory Board to attempt to maximize the Program’s benefits to the department or agency and the Federal Government, including by identifying initiatives that will have a meaningful effect on the people served and that will benefit from involvement by one or more Fellows. Departments and agencies also are encouraged to ensure that each Fellow will work closely with responsible senior officials for the duration of the assignment.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13749. Providing for the Appointment in the Competitive Service of Certain Employees of the Foreign Service
Ex. Ord. No. 13749, Nov. 29, 2016, 81 F.R. 87391, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The recruitment and retention of workforce participants who serve in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, Public Law 96–465 (22 U.S.C. 3949), as amended, are critical to our ability to meet consular staffing levels (now in substantial deficit) and thereby enhance our capacity to meet high national security standards and efficiently process visas in accordance with our policy of “open doors, safe borders.” Program participants undergo a rigorous merit-based evaluation process, which includes a written test and an oral assessment and to which a veteran preference applies, and develop advanced- to superior-level skills in languages and in cultural competence in particular regions, skills that are essential for mission-critical positions throughout the entire Federal workforce.
Executive Order 13597 of January 19, 2012, sought to ensure that 80 percent of nonimmigrant visa applicants be interviewed within three weeks of receiving an application. The Department of State’s ability to maintain this 80 percent benchmark will come under increasing pressure in the future given current and projected staffing shortfalls through 2023. These staffing gaps could adversely affect the Department of State’s ability to sustain border security and immigration control at peak efficiency and effectiveness, which will have effects on tourism, job creation, and U.S. economic growth. Use of the Limited Non-Career Appointment hiring authority will provide flexibility to address, for the foreseeable future, both this increased demand and recurring institutional and national needs across the Federal Government.
Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that represents all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.
Sec. 2. The head of any agency in the executive branch may appoint in the competitive service an individual who served for at least 48 months of continuous service in the Foreign Service of the Department of State under a Limited Non-Career Appointment under section 309 of the Foreign Service Act of 1980, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.
Sec. 3. In order to be eligible for noncompetitive appointment to positions under section 2 of this order, such an individual must:
(a) have received a satisfactory or better performance rating (or equivalent) for service under the qualifying Limited Non-Career Appointment; and
(b) exercise the eligibility for noncompetitive appointment within a period of 1 year after completion of the qualifying Limited Non-Career Appointment. Such period may be extended to not more than 3 years in the case of persons who, following such service, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities that, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.
Sec. 4. A person appointed under section 2 of this order shall become a career conditional employee.
Sec. 5. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify a person for appointment under section 2 of this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act [of 1978], 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.
Sec. 6. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive eligibility with or without additional regulations.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13750. Providing for the Appointment of Alumni of the Fulbright U.S. Student Program, the Benjamin A. Gilman International Scholarship Program, and the Critical Language Scholarship Program to the Competitive Service
Ex. Ord. No. 13750, Nov. 29, 2016, 81 F.R. 87393, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Policy. The Federal Government benefits from a workforce that can be recruited from the broadest and deepest pools of qualified candidates for our highly competitive, merit-based positions. The issuance of an order granting Non-Competitive Eligibility (NCE) to certain alumni of the Fulbright U.S. Student Program, the Benjamin A. Gilman International Scholarship Program, and the Critical Language Scholarship (CLS) Program, all of which are academic exchange programs carried out under the authorities of the Mutual Educational and Cultural Exchange Act of 1961, Public Law 87–256, as amended, also known as the Fulbright-Hays Act, and the International Academic Opportunity Act of 2000, title III of Public Law 106–309, would be in the best interest of the Federal Government. Participants in these programs develop advanced- to superior-level skills in languages and cultural competence in regions that are strategically, diplomatically, and economically important to the United States. It is in the interest of the Federal Government to retain the services of these highly skilled individuals, particularly given that the Federal Government aided them in the acquisition of their skills. Participants in the Fulbright, Gilman, and CLS programs are drawn from highly competitive, merit-based national selection processes to which a veterans’ preference applies to ensure that the most qualified individuals are selected.
Accordingly, pursuant to my authority under 5 U.S.C. 3302(1), and in order to achieve a workforce that is drawn from all segments of society as provided in 5 U.S.C. 2301(b)(1), I find that conditions of good administration make necessary an exception to the competitive hiring rules for certain positions in the Federal civil service.
Sec. 2. Establishment. The head of any agency in the executive branch may appoint in the competitive service any person who is certified by the Secretary of State or designee as having participated successfully in the Fulbright, Gilman, or CLS international exchange programs, and who passes such examination as the Office of Personnel Management (OPM) may prescribe.
Sec. 3. The Secretary of State or designee shall issue certificates, upon request, to persons whom the Department of State determines have completed the requirements of a program described in section 1 of this order.
Sec. 4. Any appointment under this order shall be effected within a period of 1 year after completion of the appointee’s participation in the programs described in section 1. Such period may be extended to not more than 3 years for persons who, following participation in the programs described in section 1, are engaged in military service, in the pursuit of studies at an institution of higher learning, or in other activities which, in the view of the appointing authority, warrant an extension of such period. Such period may also be extended to permit the adjudication of a background investigation.
Sec. 5. A person appointed under section 2 of this order becomes a career conditional employee.
Sec. 6. Any law, Executive Order, or regulation that would disqualify an applicant for appointment in the competitive service shall also disqualify an applicant for appointment under this order. Examples of disqualifying criteria include restrictions on employing persons who are not U.S. citizens or nationals, who have violated the anti-nepotism provisions of the Civil Service Reform Act [of 1978], 5 U.S.C. 2302(b)(7), 3110, who have knowingly and willfully failed to register for Selective Service when required to do so, 5 U.S.C. 3328(a)(2), who do not meet occupational qualifying standards prescribed by OPM, or who do not meet suitability factors prescribed by OPM.
Sec. 7. The Office of Personnel Management is authorized to issue such additional regulations as may be necessary to implement this order. Any individual who meets the terms of this order, however, is eligible for noncompetitive hiring with or without additional regulations.
Sec. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that department or agency within the Federal Government; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.

Ex. Ord. No. 13842. Establishing an Exception to Competitive Examining Rules for Appointment to Certain Positions in the United States Marshals Service, Department of Justice
Ex. Ord. No. 13842, July 10, 2018, 83 F.R. 32753, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Providing Appointment Authority. (a) Good administration of the executive branch necessitates that the U.S. Marshals Service (USMS), a component of the Department of Justice, have a hiring authority that is currently available to other Federal law enforcement agencies and that would, among other things, enable the USMS to be competitive in recruiting high-quality Deputy U.S. Marshals and Criminal Investigators, to better hire and retain qualified individuals in certain duty locations, and to more expeditiously fill vacant positions consistent with law enforcement needs. Accordingly, it is appropriate to place Deputy U.S. Marshals and Criminal Investigators of the USMS in Schedule B of the excepted service, as it is impracticable to hold open competition or to apply usual competitive examining procedures for those positions related to Federal law enforcement.
(b) Appointments to the positions identified in subsection (a) of this section:
(i) may not be made to positions of a confidential or policy-determining character or to positions in the Senior Executive Service; and
(ii) shall constitute Schedule B appointments that are:
(A) excepted from the competitive service; and
(B) subject to laws and regulations governing Schedule B appointments, including basic qualification standards established by the Director of the Office of Personnel Management (Director) for the applicable occupation and grade level.
Sec. 2. Providing Conversion Authority. (a) Deputy U.S. Marshals and Criminal Investigators of the USMS appointed under Schedule B may, upon completion of 3 years of substantially continuous, fully satisfactory service, be converted non-competitively to career appointments, provided they meet the qualifications and other requirements established by the Director.
(b) The Director shall prescribe such regulations as may be necessary to implement this order.
Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.

Ex. Ord. No. 13843. Excepting Administrative Law Judges From the Competitive Service
Ex. Ord. No. 13843, July 10, 2018, 83 F.R. 32755, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Policy. The Federal Government benefits from a professional cadre of administrative law judges (ALJs) appointed under section 3105 of title 5, United States Code, who are impartial and committed to the rule of law. As illustrated by the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission, No. 17–130 (June 21, 2018), ALJs are often called upon to discharge significant duties and exercise significant discretion in conducting proceedings under the laws of the United States. As part of their adjudications, ALJs interact with the public on issues of significance. Especially given the importance of the functions they discharge—which may range from taking testimony and conducting trials to ruling on the admissibility of evidence and enforcing compliance with their orders—ALJs must display appropriate temperament, legal acumen, impartiality, and sound judgment. They must also clearly communicate their decisions to the parties who appear before them, the agencies that oversee them, and the public that entrusts them with authority.
Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures. The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve. Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some—and perhaps all—ALJs are “Officers of the United States” and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.
As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.
Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for the position of ALJ. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive examination and competitive service selection procedures. Placing the position of ALJ in the excepted service will mitigate concerns about undue limitations on the selection of ALJs, reduce the likelihood of successful Appointments Clause challenges, and forestall litigation in which such concerns have been or might be raised. This action will also give agencies greater ability and discretion to assess critical qualities in ALJ candidates, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the significant authority conferred on ALJs, and each agency should be able to assess them without proceeding through complicated and elaborate examination processes or rating procedures that do not necessarily reflect the agency’s particular needs. This change will also promote confidence in, and the durability of, agency adjudications.
Sec. 2. Excepted Service. Appointments of ALJs shall be made under Schedule E of the excepted service, as established by section 3 of this order.
Sec. 3. Implementation. (a) [Amended Civil Service Rule VI.]
(b) The Director of the Office of Personnel Management (Director) shall:
(i) adopt such regulations as the Director determines may be necessary to implement this order, including, as appropriate, amendments to or rescissions of regulations that are inconsistent with, or that would impede the implementation of, this order, giving particular attention to 5 CFR, part 212, subpart D; 5 CFR, part 213, subparts A and C; 5 CFR 302.101; and 5 CFR, part 930, subpart B; and
(ii) provide guidance on conducting a swift, orderly transition from the existing appointment process for ALJs to the Schedule E process established by this order.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.

Ex. Ord. No. 13932. Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates
Ex. Ord. No. 13932, June 26, 2020, 85 F.R. 39457, 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, and sections 1104(a)(1), 3301, and 7301 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Purpose. The foundation of our professional merit-based civil service is the principle that employment and advancement rest on the ability of individuals to fulfill their responsibilities in service to the American public. Accordingly, Federal Government employment opportunities should be filled based on merit. Policies or practices that undermine public confidence in the hiring process undermine confidence in both the civil service and the Government.
America’s private employers have modernized their recruitment practices to better identify and secure talent through skills- and competency-based hiring. As the modern workforce evolves, the Federal Government requires a more efficient approach to hiring. Employers adopting skills- and competency-based hiring recognize that an overreliance on college degrees excludes capable candidates and undermines labor-market efficiencies. Degree-based hiring is especially likely to exclude qualified candidates for jobs related to emerging technologies and those with weak connections between educational attainment and the skills or competencies required to perform them. Moreover, unnecessary obstacles to opportunity disproportionately burden low-income Americans and decrease economic mobility.
The Office of Personnel Management (OPM) oversees most aspects of the civilian Federal workforce, including creating and maintaining the General Schedule classification system and determining the duties, responsibilities, and qualification requirements for Federal jobs. Executive departments and agencies (agencies), however, are responsible for vetting and selecting specific candidates to fill particular job openings consistent with statutory requirements and OPM rules and guidance, including applicable minimum educational requirements. Currently, for most Federal jobs, traditional education—high school, college, or graduate-level—rather than experiential learning is either an absolute requirement or the only path to consideration for candidates without many years of experience. As a result, Federal hiring practices currently lag behind those of private sector leaders in securing talent based on skills and competency.
My Administration is committed to modernizing and reforming civil service hiring through improved identification of skills requirements and effective assessments of the skills job seekers possess. We encourage these same practices in the private sector. Modernizing our country’s processes for identifying and hiring talent will provide America a more inclusive and demand-driven labor force.
Through the work of the National Council for the American Worker and the American Workforce Policy Advisory Board, my Administration is fulfilling its commitment to expand employment opportunities for workers. The increased adoption of apprenticeship programs by American employers, the creation of Industry-Recognized Apprenticeship Programs, and the implementation of Federal hiring reforms, including those in this order, represent important steps toward providing more Americans with pathways to family-sustaining careers. In addition, the Principles on Workforce Freedom and Mobility announced by my Administration in January 2020 detail reforms that will expand opportunities and eliminate unnecessary education costs for job seekers. This order builds on the broader work of my Administration to expand opportunity and create a more inclusive 21st-century economy.
This order directs important, merit-based reforms that will replace degree-based hiring with skills- and competency-based hiring and will hold the civil service to a higher standard—ensuring that the individuals most capable of performing the roles and responsibilities required of a specific position are those hired for that position—that is more in line with the principles on which the merit system rests.
Sec. 2. Revision of Job Classification and Qualification Standards. (a) The Director of OPM, in consultation with the Director of the Office of Management and Budget, the Assistant to the President for Domestic Policy, and the heads of agencies, shall review and revise all job classification and qualification standards for positions within the competitive service, as necessary and consistent with subsections (a)(i) and (a)(ii) of this section. All changes to job classification and qualification standards shall be made available to the public within 120 days of the date of this order [June 26, 2020] and go into effect within 180 days of the date of this order.
(i) An agency may prescribe a minimum educational requirement for employment in the Federal competitive service only when a minimum educational qualification is legally required to perform the duties of the position in the State or locality where those duties are to be performed.
(ii) Unless an agency is determining a candidate’s satisfaction of a legally required minimum educational requirement, an agency may consider education in determining a candidate’s satisfaction of some other minimum qualification only if the candidate’s education directly reflects the competencies necessary to satisfy that qualification and perform the duties of the position.
(b) Position descriptions and job postings published by agencies for positions within the competitive service should be based on the specific skills and competencies required to perform those jobs.
Sec. 3. Improving the Use of Assessments in the Federal Hiring Process. (a) In addition to the other requirements of this order, the Director of OPM shall work with the heads of all agencies to ensure that, within 180 days of the date of this order, for positions within the competitive service, agencies assess candidates in a manner that does not rely solely on educational attainment to determine the extent to which candidates possess relevant knowledge, skills, competencies, and abilities. The heads of all agencies shall develop or identify such assessment practices.
(b) In assessing candidates, agencies shall not rely solely on candidates’ self-evaluations of their stated abilities. Applicants must clear other assessment hurdles in order to be certified for consideration.
(c) Agencies shall continually evaluate the effectiveness of different assessment strategies to promote and protect the quality and integrity of their hiring processes.
Sec. 4. Definitions. For purposes of this order:
(a) the term “assessment” refers to any valid and reliable method of collecting information on an individual for the purposes of making a decision about qualification, hiring, placement, promotion, referral, or entry into programs leading to advancement;
(b) the term “competitive service” has the meaning specified by section 2102 of title 5, United States Code;
(c) the term “education” refers to Post High-School Education as that term is defined in the OPM General Schedule Qualification Policies; and
(d) the term “qualification” means the minimum requirements necessary to perform work of a particular position or occupation successfully and safely.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.

Executive Order No. 13957
Ex. Ord. No. 13957, Oct. 21, 2020, 85 F.R. 67631, which created Schedule F in the Excepted Service for positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition, was revoked by Ex. Ord. No. 14003, § 2(a), Jan. 22, 2021, 86 F.R. 7231, set out below.

Ex. Ord. No. 14003. Protecting the Federal Workforce
Ex. Ord. No. 14003, Jan. 22, 2021, 86 F.R. 7231, 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. Policy. Career civil servants are the backbone of the Federal workforce, providing the expertise and experience necessary for the critical functioning of the Federal Government. It is the policy of the United States to protect, empower, and rebuild the career Federal workforce. It is also the policy of the United States to encourage union organizing and collective bargaining. The Federal Government should serve as a model employer.
Sec. 2. Revocation of Schedule F. (a) The creation of a new Schedule F excepted service category in Executive Order 13957 of October 21, 2020 (Creating Schedule F in the Excepted Service) [formerly set out above], not only was unnecessary to the conditions of good administration, but also undermined the foundations of the civil service and its merit system principles, which were essential to the Pendleton Civil Service Reform Act of 1883’s [22 Stat. 403] repudiation of the spoils system. Accordingly, to enhance the efficiency of the civil service and to promote good administration and systematic application of merit system principles, Executive Order 13957 is hereby revoked.
(b) The heads of all executive departments and agencies (agencies) shall, consistent with law, immediately suspend, revise, or rescind proposed actions, decisions, petitions, rules, regulations or other guidance pursuant to, or to effectuate, Executive Order 13957. The Director of the Office of Personnel Management (OPM) shall immediately cease processing or granting any petitions that seek to convert positions to Schedule F or to create new positions in Schedule F.
Sec. 3. Revocation of Certain Presidential and Regulatory Actions. (a) Executive Order 13836 of May 25, 2018 (Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining) [former 5 U.S.C. 7101 note], is hereby revoked. The Interagency Labor Relations Working Group is hereby disbanded and the Director of OPM shall withdraw all materials issued by this working group that are inconsistent with the policy set forth in section 1 of this order.
(b) Executive Order 13837 of May 25, 2018 (Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use) [former 5 U.S.C. 7131 note], is hereby revoked.
(c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles) [former 5 U.S.C. 7501 note prec.], is hereby revoked.
(d) The Presidential Memorandum of October 11, 2019 (Executive Orders 13836, 13837, and 13839) [former 5 U.S.C. 7101 note], is hereby revoked.
(e) The heads of agencies whose practices were covered by Executive Orders 13836, 13837, and 13839 (affected agencies) shall review and identify existing agency actions related to or arising from those orders. Such actions include:
(i) Actions related to the authorization of union time described in sections 4(b) and 5(b) of Executive Order 13837;
(ii) Actions related to the system for monitoring the use of union time described in section 5(c) of Executive Order 13837;
(iii) Guidance promulgated pursuant to section 7(d) of Executive Order 13837;
(iv) Actions taken pursuant to section 8 of Executive Order 13837;
(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839; and
(vii) The final rule entitled “Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions,” 85 Fed. Reg. 65940 (October 16, 2020).
(f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection (e) of this section, as appropriate and consistent with applicable law and the policy set forth in section 1 of this order.
Sec. 4. Ensuring the Right to Engage in Collective Bargaining. The head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.
Sec. 5. Progress Toward a Living Wage for Federal Employees. The Director of OPM shall provide a report to the President with recommendations to promote a $15/hour minimum wage for Federal employees.
Sec. 6. Severability. If any provision of this order, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of such provision to other persons or circumstances shall not be affected thereby.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.

Improving the Federal Recruitment and Hiring Process
Memorandum of President of the United States, May 11, 2010, 75 F.R. 27157, provided:
Memorandum for the Heads of Executive Departments and Agencies
To deliver the quality services and results the American people expect and deserve, the Federal Government must recruit and hire highly qualified employees, and public service should be a career of choice for the most talented Americans. Yet the complexity and inefficiency of today’s Federal hiring process deters many highly qualified individuals from seeking and obtaining jobs in the Federal Government.
I therefore call on executive departments and agencies (agencies) to overhaul the way they recruit and hire our civilian workforce. Americans must be able to apply for Federal jobs through a commonsense hiring process and agencies must be able to select high-quality candidates efficiently and quickly. Moreover, agency managers and supervisors must assume a leadership role in recruiting and selecting employees from all segments of our society. Human resource offices must provide critical support for these efforts. The ability of agencies to perform their missions effectively and efficiently depends on a talented and engaged workforce, and we must reform our hiring system to further strengthen that workforce.
By the authority vested in me as President by the Constitution and the laws of the United States, including section 3301 of title 5, United States Code, I hereby direct the following:
Section 1. Directions to Agencies. Agency heads shall take the following actions no later than November 1, 2010:
(a) consistent with merit system principles and other requirements of title 5, United States Code, and subject to guidance to be issued by the Office of Personnel Management (OPM), adopt hiring procedures that:
(1) eliminate any requirement that applicants respond to essay-style questions when submitting their initial application materials for any Federal job;
(2) allow individuals to apply for Federal employment by submitting resumes and cover letters or completing simple, plain language applications, and assess applicants using valid, reliable tools; and
(3) provide for selection from among a larger number of qualified applicants by using the “category rating” approach (as authorized by section 3319 of title 5, United States Code), rather than the “rule of 3” approach, under which managers may only select from among the three highest scoring applicants;
(b) require that managers and supervisors with responsibility for hiring are:
(1) more fully involved in the hiring process, including planning current and future workforce requirements, identifying the skills required for the job, and engaging actively in the recruitment and, when applicable, the interviewing process; and
(2) accountable for recruiting and hiring highly qualified employees and supporting their successful transition into Federal service, beginning with the first performance review cycle starting after November 1, 2010;
(c) provide the OPM and the Office of Management and Budget (OMB) timelines and targets to:
(1) improve the quality and speed of agency hiring by:
(i) reducing substantially the time it takes to hire mission-critical and commonly filled positions;
(ii) measuring the quality and speed of the hiring process; and
(iii) analyzing the causes of agency hiring problems and actions that will be taken to reduce them; and
(2) provide every agency hiring manager training on effective, efficient, and timely ways to recruit and hire well-qualified individuals;
(d) notify individuals applying for Federal employment through USAJOBS, an OPM-approved Federal web-based employment search portal, about the status of their application at key stages of the application process; and
(e) identify a senior official accountable for leading agency implementation of this memorandum.
Sec. 2. Directions to the OPM. The OPM shall take the following actions no later than 90 days after the date of this memorandum:
(a) establish a Government-wide performance review and improvement process for hiring reform actions described in section 1 of this memorandum, including:
(1) a timeline, benchmarks, and indicators of progress; [and]
(2) a goal-focused, data-driven system for holding agencies accountable for improving the quality and speed of agency hiring, achieving agency hiring reform targets, and satisfying merit system principles and veterans’ preference requirements; and [sic]
(b) develop a plan to promote diversity in the Federal workforce, consistent with the merit system principle (codified at 5 U.S.C. 2301(b)(1)) that the Federal Government should endeavor to achieve a workforce from all segments of society;
(c) evaluate the Federal Career Intern Program established by Executive Order 13162 of July 6, 2000, provide recommendations concerning the future of that program, and propose a framework for providing effective pathways into the Federal Government for college students and recent college graduates;
(d) provide guidance or propose regulations, as appropriate, to streamline and improve the quality of job announcements for Federal employment to make sure they are easily understood by applicants;
(e) evaluate the effectiveness of shared registers used in filling positions common across multiple agencies and develop a strategy for improving agencies’ use of these shared registers for commonly filled Government-wide positions;
(f) develop a plan to increase the capacity of USAJOBS to provide applicants, hiring managers, and human resource professionals with information to improve the recruitment and hiring processes; and
(g) take such further administrative action as appropriate to implement sections 1 and 2 of this memorandum.
Sec. 3. Senior Administration Officials. Agency heads and other senior administration officials visiting university or college campuses on official business are encouraged to discuss career opportunities in the Federal Government with students.
Sec. 4. Reporting. (a) The OPM, in coordination with the OMB and in consultation with other agencies, shall develop a public human resources website to:
(1) track key human resource data, including progress on hiring reform implementation; and
(2) assist senior agency leaders, hiring managers, and human resource professionals with identifying and replicating best practices within the Federal Government for improving new employee quality and the hiring process.
(b) Each agency shall regularly review its key human resource performance and work with the OPM and the OMB to achieve timelines and targets for correcting agency hiring problems.
(c) The OPM shall submit to the President an annual report on the impact of hiring initiatives set forth in this memorandum, including its recommendations for further improving the Federal Government’s hiring process.
Sec. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:
(1) authority granted by law or Executive Order to an agency, or the head thereof; or
(2) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Director of the OPM, in consultation with the OMB, may grant an exception to any of the requirements set forth in section 1 of this memorandum to an agency that demonstrates that exceptional circumstances prevent it from complying with that requirement.
Sec. 6. Publication. The Director of the OPM is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

Enhancing Safeguards To Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own
Memorandum of President of the United States, Jan. 31, 2014, 79 F.R. 7045, provided:
Memorandum for the Heads of Executive Departments and Agencies
The Federal Government is America’s largest employer. While seeking to employ a talented and productive workforce, it has a responsibility to lead by example. Although executive departments and agencies (agencies) generally can, and do, take job applicants’ employment history and other factors into account when making hiring decisions, it is the policy of my Administration that applicants should not face undue obstacles to Federal employment because they are unemployed or face financial difficulties. The Government must continue to take steps to ensure the fair treatment of applicants, as well as incumbent Federal employees, who face financial difficulties through no fault of their own and make good faith efforts to meet those obligations. Therefore, I hereby direct as follows:
Section 1. Individuals Who Are Unemployed or Facing Financial Difficulty. (a) Agencies shall not make an unfavorable determination with respect to the suitability, fitness, or qualifications of an applicant for Federal employment because that applicant:
(i) is or was unemployed; or
(ii) has experienced or is experiencing financial difficulty through no fault of the applicant, if the applicant has undertaken a good-faith effort to meet his or her financial obligations.
(b) Consistent with existing law, agencies shall not remove, suspend, or demote a current Federal employee if the basis of the action is that the employee has experienced, or is experiencing, financial difficulty through no fault of the employee, and the employee has undertaken a good-faith effort to meet his or her financial obligations.
(c) Agencies shall review their recruiting and hiring practices to determine whether such processes intentionally or inadvertently place applicants at an undue disadvantage because of the factors set forth in subsection (a) of this section and report the results to the Director of the Office of Personnel Management (OPM) within 90 days of the date of this memorandum. Taking into account the results, the Director of OPM shall issue guidance to Chief Human Capital Officers to assist agencies with implementation of this memorandum.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof;
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals;
(iii) the authority granted by law, Executive Order, or regulation to a department or agency, or the head thereof, to determine eligibility for access to classified information or to occupy a sensitive position; or
(iv) the authority granted by law or Executive Order to a department or agency, or the head thereof, to take adverse actions against Federal employees for their failure to comply with any law, rule, or regulation imposing upon them an obligation to satisfy in good faith their just financial obligations, including Federal, State, or local taxes.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Director of OPM is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

§ 3302. Competitive service; rules
The President may prescribe rules governing the competitive service. The rules shall provide, as nearly as conditions of good administration warrant, for—(1) necessary exceptions of positions from the competitive service; and

(2) necessary exceptions from the provisions of sections 2951, 3304(a), 3321, 7202, and 7203 of this title.

Each officer and individual employed in an agency to which the rules apply shall aid in carrying out the rules.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 417; Pub. L. 95–228, § 2(b), Feb. 10, 1978, 92 Stat. 25; Pub. L. 95–454, title VII, § 703(c)(1), Oct. 13, 1978, 92 Stat. 1217; Pub. L. 96–54, § 2(a)(16), Aug. 14, 1979, 93 Stat. 382; Pub. L. 103–94, § 2(b)(1), Oct. 6, 1993, 107 Stat. 1004.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 633(1) (less function of Civil Service Commission), (2)8 (last sentence).Jan. 16, 1883, ch. 27, § 2(1) (less function of Civil Service Commission), (2) 8 (last sentence), 22 Stat. 403, 404.

The reference to the competitive service is substituted for the reference to the Act creating that service. The reference to reasons for the exceptions is omitted as covered by section 1308 of this title. The words “provide for” are substituted for “provide and declare”. Paragraph (1) is supplied to preserve the President’s power to except positions from the competitive service, previously implied from the power to except from the first rule in former section 633(2). Authority to make exceptions to so much of former section 633(2) as is restated in this section and section 1302(a) is omitted as meaningless. Authority to make exceptions to so much of former section 633(2) as is restated in section 3318(a) is omitted as superseded by former section 857, which is carried into section 3318(a). In the last sentence, the words “Each officer and individual employed in an agency” are substituted for “officers of the United States in the departments and offices” because of the restrictive definition of “officer” in section 2104.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1993—Par. (2). Pub. L. 103–94 substituted “and 7203” for “7203, 7321, and 7322”.
1979—Par. (2). Pub. L. 96–54 amended par. (2) in same manner as amendment by section 703(c)(1) of Pub. L. 95–454. See 1978 Amendment note below.
1978—Par. (2). Pub. L. 95–454 substituted “7202, 7203” for “7152, 7153”.
Pub. L. 95–228 struck out reference to section 3306(a)(1) of this title. Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inadvertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of section 2105 of this title, and subsec. (c)(2) purported to amend par. (2) of this section. However, the amendments specified by Pub. L. 95–454, § 703(c)(1) and (2), were impossible to execute literally. Thus, amendment by Pub. L. 95–454, § 703(c)(2) was executed to section 2105 of this title, and amendment by section 703(c)(1) was executed to this section as the probable intent of Congress.

Statutory Notes and Related Subsidiaries
Effective Date of 1993 Amendment; Savings ProvisionAmendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 AmendmentAmendment 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.

Executive Documents

Ex. Ord. No. 11521. Veterans Readjustment Appointment for Veterans of Vietnam Era
Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:
WHEREAS this Nation has an obligation to assist veterans of the armed forces in readjusting to civilian life;
WHEREAS the Federal Government, as an employer, should reflect its recognition of this obligation in its personnel policies and practices;
WHEREAS veterans, by virtue of their military service, have lost opportunities to pursue education and training oriented toward civilian careers;
WHEREAS the Federal Government is continuously concerned with building an effective workforce, and veterans constitute a major recruiting source; and
WHEREAS the development of skills is most effectively achieved through a program combining employment with education or training:
NOW, THEREFORE, by virtue of the authority vested in me by the Constitution of the United States, by sections 3301 and 3302 of title 5, United States Code, and as President of the United States, it is ordered as follows:
Section 1. (a) Subject to paragraph (b) of this section, the head of an agency may make an excepted appointment, to be known as a “veterans readjustment appointment”, to any position in the competitive service up to and including GS–5 or the equivalent thereof, of a veteran or disabled veteran as defined in section 2108(1), (2), of title 5, United States Code, who:
(1) served on active duty in the armed forces of the United States during the Vietnam era;
(2) at the time of his appointment has completed not more than fourteen years of education; and
(3) is found qualified to perform the duties of the position.
(b) Employment under paragraph (a) of this section is authorized only under a training or educational program developed by an agency in accordance with guidelines established by the Office of Personnel Management.
(c) An employee given a veterans readjustment appointment under paragraph (a) of this section shall serve subject to:
(1) the satisfactory performance of assigned duties; and
(2) participation in the training or educational program under which he is appointed.
(d) An employee who does not satisfactorily meet the conditions set forth in paragraph (c) of this section shall be removed in accordance with appropriate procedures.
(e) An employee serving under a veterans readjustment appointment may be promoted, reassigned, or transferred.
(f) An employee who completes the training or educational program and who has satisfactorily completed two years of substantially continuous service under a veterans readjustment appointment shall be converted to career-conditional or career employment. An employee converted under this paragraph shall automatically acquire a competitive status.
(g) In selecting an applicant for appointment under this section, an agency shall not discriminate because of race, color, religion, sex, national origin, or political affiliation.
Sec. 2. (a) A person eligible for appointment under section 1 of this order may be appointed only within one year after his separation from the armed forces, or one year following his release from hospitalization or treatment immediately following his separation from the armed forces, or one year after involuntary separation without cause from (i) a veterans readjustment appointment or (ii) a transitional appointment, or one year after the effective date of this order if he is serving under a transitional appointment.
(b) The Office of Personnel Management may determine the circumstances under which service under a transitional appointment may be deemed service under a veterans readjustment appointment for the purpose of paragraph (f) of section 1 of this order.
Sec. 3. Any law, Executive order, or regulation which would disqualify an applicant for appointment in the competitive service shall also disqualify a person otherwise eligible for appointment under section 1 of this order.
Sec. 4. For the purpose of this order:
(a) “agency” means a military department as defined in section 102 of title 5, United States Code, an executive agency (other than the General Accounting Office [now Government Accountability Office]) as defined in section 105 of title 5, United States Code, and those portions of the legislative and judicial branches of the Federal Government and of the government of the District of Columbia having positions in the competitive service; and
(b) “Vietnam era” means the period beginning August 5, 1964, and ending on such date thereafter as may be determined by Presidential proclamation or concurrent resolution of the Congress.
Sec. 5. The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the provisions of this order.
Sec. 6. Executive Order No. 11397 of February 9, 1968, is revoked. Such revocation shall not affect the right of an employee to be converted to career-conditional or career employment if he meets the requirements of section 1(d) of Executive Order No. 11397 after the effective date of this order.
Sec. 7. This order is effective 14 days after its date.

§ 3303. Competitive service; recommendations of Senators or Representatives
An individual concerned in examining an applicant for or appointing him in the competitive service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 103–94, § 8(a), Oct. 6, 1993, 107 Stat. 1006; Pub. L. 104–197, title III, § 315(a), Sept. 16, 1996, 110 Stat. 2416.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 642.Jan. 16, 1883, ch. 27, § 10, 22 Stat. 406.

The prohibition is restated in positive form. The words “An individual concerned in examining an applicant for or appointing him in the competitive service” are substituted for “any person concerned in making any examination or appointment under this act”. The word “applicant” is substituted for “person who shall apply for office or place under the provisions of this act”. The word “Representative” is substituted for “Member of the House of Representatives”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1996—Pub. L. 104–197 substituted “Competitive service; recommendations of Senators or Representatives” for “Political recommendations” in section catchline and amended text generally, substituting provisions prohibiting receipt or consideration of recommendations of applicants in competitive service made by Senators or Representatives for provisions which directed that personnel actions be taken without solicitation of or regard to such recommendations from Members of Congress, congressional employees, any elected official of the government of any State (including D.C. and Puerto Rico) or subdivision thereof, or political party official, prohibited such persons from making such recommendations, prohibited employees or applicants from soliciting such recommendations and required notification of such prohibition, but allowed for certain exceptions regarding solicitation and consideration of recommendations if subject of recommendation was limited to factors pertinent to work performance, ability, aptitude, general qualifications, related to suitability or security standards, or furnished pursuant to law or regulation.
1993—Pub. L. 103–94 substituted “Political recommendations” for “Competitive service; recommendations of Senators or Representatives” as section catchline and amended text generally. Prior to amendment, text read as follows: “An individual concerned in examining an applicant for or appointing him in the competitive service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant.”

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentAmendment by Pub. L. 104–197 effective 30 days after Sept. 16, 1996, see section 315(c) of Pub. L. 104–197, set out as a note under section 2302 of this title.

Effective Date of 1993 Amendment; Savings ProvisionAmendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title.

§ 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;

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

(3) authority for agencies to appoint, without regard to the provision of sections 3309 through 3318, candidates directly to positions for which—(A) public notice has been given; and

(B) the Office of Personnel Management has determined that there exists a severe shortage of candidates (or, with respect to the Department of Veterans Affairs, that there exists a severe shortage of highly qualified candidates) or that there is a critical hiring need.

The Office shall prescribe, by regulation, criteria for identifying such positions and may delegate authority to make determinations under such criteria.

(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, § 906(a)(5), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 99–586, Oct. 29, 1986, 100 Stat. 3325; Pub. L. 104–65, §§ 16(a), (b), 17(a), Dec. 19, 1995, 109 Stat. 703; Pub. L. 104–186, title II, § 215(2), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 105–339, § 2, Oct. 31, 1998, 112 Stat. 3182; Pub. L. 106–117, title V, § 511(c), Nov. 30, 1999, 113 Stat. 1575; Pub. L. 107–296, title XIII, § 1312(a)(1), Nov. 25, 2002, 116 Stat. 2290; Pub. L. 108–375, div. A, title XI, § 1105(g), Oct. 28, 2004, 118 Stat. 2075; Pub. L. 109–163, div. A, title XI, § 1104(e)(2), Jan. 6, 2006, 119 Stat. 3450; Pub. L. 111–84, div. A, title XI, § 1102(d)(2), Oct. 28, 2009, 123 Stat. 2485; Pub. L. 115–46, title II, § 213, Aug. 12, 2017, 131 Stat. 967.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 633(2)1.Jan. 16, 1883, ch. 27, § 2(2)1, 22 Stat. 403.
 5 U.S.C. 633(2)7 (less last 17 words).Jan. 16, 1883, ch. 27, § 2(2)7 (less last 17 words), 22 Stat. 404.
(b)5 U.S.C. 638 (as applicable to appointment).Jan. 16, 1883, ch. 27, § 7 (as applicable to appointment), 22 Stat. 406.
(c)5 U.S.C. 631b(b).Nov. 26, 1940, ch. 919, § 2(b), 54 Stat. 1212.Feb. 12, 1946, ch. 3, 60 Stat. 3.May 29, 1958, Pub. L. 85–432, § 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, § 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.

Editorial Notes
Amendments2017—Subsec. (a)(3)(B). Pub. L. 115–46 inserted “(or, with respect to the Department of Veterans Affairs, that there exists a severe shortage of highly qualified candidates)” after “severe shortage of candidates”.
2009—Subsec. (a)(3)(B). Pub. L. 111–84 amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows:
“(i) the Office of Personnel Management has determined that there exists a severe shortage of candidates or there is a critical hiring need; or
“(ii) the candidate is a participant in the Science, Mathematics, and Research for Transformation (SMART) Defense Defense Education Program under section 2192a of title 10, United States Code.”
2006—Subsec. (a)(3)(B)(ii). Pub. L. 109–163 substituted “Defense Education Program” for “Scholarship Pilot Program” and “section 2192a of title 10, United States Code.” for “section 1105 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005.”
2004—Subsec. (a)(3)(B). Pub. L. 108–375 added subpar. (B) and struck out former subpar. (B) which read as follows: “the Office of Personnel Management has determined that there exists a severe shortage of candidates or there is a critical hiring need.”
2002—Subsec. (a)(3). Pub. L. 107–296 added par. (3).
1999—Subsec. (f)(2), (3). Pub. L. 106–117, § 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, § 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, § 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, § 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, § 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, § 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”.

Statutory Notes and Related Subsidiaries
Effective Date of 2002 AmendmentAmendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

Effective Date of 1999 AmendmentPub. L. 106–117, title V, § 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 AmendmentPub. L. 104–65, § 16(c), Dec. 19, 1995, 109 Stat. 703, 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].”

Pub. L. 104–65, § 17(b), Dec. 19, 1995, 109 Stat. 703, 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 AmendmentAmendment 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.

Direct Hiring for Federal Wage Schedule EmployeesPub. L. 114–328, div. A, title XI, § 1139, Dec. 23, 2016, 130 Stat. 2470, provided that: “The Director of the Office of Personnel Management shall permit an agency with delegated examining authority under 1104(a)(2) of title 5, United States Code, to use direct-hire authority under section 3304(a)(3) of such title for a permanent or non-permanent position or group of positions in the competitive services at GS–15 (or equivalent) and below, or for prevailing rate employees, if the Director determines that there is either a severe shortage of candidates or a critical hiring need for such positions.”

§ 3304a. Competitive service; career appointment after 3 years’ temporary service(a) An individual serving in a position in the competitive service under an indefinite appointment or a temporary appointment pending establishment of a register (other than an individual serving under an overseas limited appointment, or in a position classified above GS–15 pursuant to section 5108) acquires competitive status and is entitled to have his appointment converted to a career appointment, without condition, when—(1) he completes, without break in service of more than 30 days, a total of at least 3 years of service in such a position;

(2) he passes a suitable noncompetitive examination;

(3) the appointing authority (A) recommends to the Office of Personnel Management that the appointment of the individual be converted to a career appointment and (B) certifies to the Office that the work performance of the individual for the past 12 months has been satisfactory; and

(4) he meets Office qualification requirements for the position and is otherwise eligible for career appointment.

(b) The employing agency shall terminate the appointment of an individual serving in a position in the competitive service under an indefinite or temporary appointment described in subsection (a) of this section, not later than 90 days after he has completed the 3-year period referred to in subsection (a)(1) of this section, if, prior to the close of such 90-day period, such individual has not met the requirements and conditions of subparagraphs (2) to (4), inclusive, of subsection (a) of this section.

(c) In computing years of service under subsection (a)(1) of this section for an individual who leaves a position in the competitive service to enter the armed forces and is reemployed in such a position within 120 days after separation under honorable conditions, the period from the date he leaves his position to the date he is reemployed is included.

(d) The Office of Personnel Management may prescribe regulations necessary for the administration of this section.

(Added Pub. L. 90–105, § 1(a), Oct. 11, 1967, 81 Stat. 273; amended Pub. L. 91–375, § 6(c)(6), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(B)], Nov. 5, 1990, 104 Stat. 1427, 1441.)

Editorial Notes
Amendments1990—Subsec. (a). Pub. L. 101–509, which directed the substitution of “in a position classified above GS–15 pursuant to section 5108)” for “in GS–16, 17, or 18)”, was executed by making the substitution for “in GS–16, GS–17, or GS–18)”, as the probable intent of Congress.
1978—Subsec. (a). Pub. L. 95–454, § 906(a)(2), (3), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.
Subsec. (d). Pub. L. 95–454, § 906(a)(2), substituted “Office of Personnel Management” for “Civil Service Commission”.
1970—Subsec. (a). Pub. L. 91–375 struck out “, in the postal field service,” after “limited appointment” in introductory parenthetical text.

Statutory Notes and Related Subsidiaries
Effective Date of 1990 AmendmentAmendment 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 1978 AmendmentAmendment 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.

Effective Date of 1970 AmendmentAmendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Effective DatePub. L. 90–105, § 4, Oct. 11, 1967, 81 Stat. 274, provided that:
“(a) This section and section 3 of this Act [amending provisions set out as a note under section 3101 of this title] shall become effective on the date of enactment of this Act [Oct. 11, 1967].

“(b) Subject to subsection (c) of this section, the first section and section 2 of this Act [enacting this section and section 3303 of former Title 39, The Postal Service] shall become effective on the one hundred and twentieth day following the date of enactment of this Act [Oct. 11, 1967].

“(c) For the purpose of the application of section 3304a(b) of title 5, United States Code, as enacted by this Act, in the case of an individual who, prior to the effective date prescribed by subsection (b) of this section, shall have completed the 3-year period referred to in such section 3304a(b), such individual shall be deemed to have completed such 3-year period on such effective date.”

§ 3305. Competitive service; examinations; when held(a) The Office of Personnel Management shall hold examinations for the competitive service at least twice a year in each State and territory or possession of the United States where there are individuals to be examined.

(b) The Office shall hold an examination for a position to which an appointment has been made within the preceding 3 years, on the application of an individual who qualifies as a preference eligible under section 2108(3)(C)–(G) of this title. The examination shall be held during the quarter following the application.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 90–83, § 1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 96–54, § 2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 635 (last 24 words of 6th sentence).Jan. 16, 1883, ch. 27, § 3 (last 24 words of 6th sentence), 22 Stat. 404.
(b)5 U.S.C. 859.June 27, 1944, ch. 287, § 10, 58 Stat. 390.Jan. 19, 1948, ch. 1, § 3, 62 Stat. 3.Dec. 27, 1950, ch. 1151, § 2(b), 64 Stat. 1117.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ActThis section amends various sections [§§ 3305, 3309, 3318] of title 5, United States Code, to reflect the redesignation of paragraphs (3)(B) through (F) of section 2108 of title 5 as paragraphs (3)(C) through (G) by section 1(6) of this bill.

Editorial Notes
Amendments1979—Subsec. (a). Pub. L. 96–54, § 2(a)(14), substituted “Office of Personnel Management” for “Civil Service Commission”.
Subsec. (b). Pub. L. 96–54, § 2(a)(15), substituted “Office” for “Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

[§ 3306. Repealed. Pub. L. 95–228, § 1, Feb. 10, 1978, 92 Stat. 25]

Section, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419, related to apportionment of appointments in the departmental service in the District of Columbia among the States, territories, etc.

§ 3307. Competitive service; maximum-age entrance requirements; exceptions(a) Except as provided in subsections (b), (c), (d), (e), and (f) of this section appropriated funds may not be used to pay an employee who establishes a maximum-age requirement for entrance into the competitive service.

(b) The Secretary may, with the concurrence of such agent as the President may designate, determine and fix the maximum limit of age within which an original appointment to a position as an air traffic controller may be made.

(c) The Secretary of the Interior may determine and fix the minimum and maximum limits of age within which original appointments to the United States Park Police may be made.

(d) The head of any agency may determine and fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331(20) and (21), respectively, of this title.

(e)(1) Except as provided in paragraph (2), the head of an agency may determine and fix the maximum age limit for an original appointment to a position as a firefighter or law enforcement officer, as defined by section 8401(14) or (17), respectively, of this title.

(2)(A) In the case of the conversion of an agency function from performance by a contractor to performance by an employee of the agency, the head of the agency, in consultation with the Director of the Office of Personnel Management, may waive any maximum limit of age, determined or fixed for positions within such agency under paragraph (1), if necessary in order to promote the recruitment or appointment of experienced personnel.

(B) For purposes of this paragraph—(i) the term “agency” means the Department of Defense or a military department; and

(ii) the term “head of the agency” means—(I) in the case of the Department of Defense, the Secretary of Defense; and

(II) in the case of a military department, the Secretary of such military department.

(f) The Secretary of Energy may determine and fix the maximum age limit for an original appointment to a position as a nuclear materials courier, as defined by section 8331(27) or 8401(33).

(g) The Secretary of Homeland Security may determine and fix the maximum age limit for an original appointment to a position as a customs and border protection officer, as defined by section 8401(36).

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 92–297, § 2(a), May 16, 1972, 86 Stat. 141; Pub. L. 93–350, § 1, July 12, 1974, 88 Stat. 355; Pub. L. 96–347, § 1(b), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 100–238, title I, § 103(a)(1), Jan. 8, 1988, 101 Stat. 1744; Pub. L. 105–261, div. C, title XXXI, § 3154(a), Oct. 17, 1998, 112 Stat. 2254; Pub. L. 110–161, div. E, title V, § 535(c), Dec. 26, 2007, 121 Stat. 2076; Pub. L. 112–81, div. A, title XI, § 1107, Dec. 31, 2011, 125 Stat. 1614.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 638b (less proviso).June 27, 1956, ch. 452, § 302 (less proviso), 70 Stat. 355.

The prohibition is restated in positive form. The word “officers” is omitted as included in “employees” in view of the definition of “employee” in section 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextFor definition of Secretary, referred to in subsec. (b), see section 2109 of this title.

Amendments2011—Subsec. (e). Pub. L. 112–81 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), the” for “The”, and added par. (2).
2007—Subsec. (g). Pub. L. 110–161 added subsec. (g).
1998—Subsec. (a). Pub. L. 105–261, § 3154(a)(1), substituted “(d), (e), and (f)” for “and (d)”.
Subsec. (f). Pub. L. 105–261, § 3154(a)(2), added subsec. (f).
1988—Subsec. (d). Pub. L. 100–238, § 103(a)(1)(A), substituted “may” for “may, with the concurrence of such agent as the President may designate,”.
Subsec. (e). Pub. L. 100–238, § 103(a)(1)(B), added subsec. (e).
1980—Subsec. (b). Pub. L. 96–347 substituted “Secretary” for “Secretary of Transportation”.
1974—Subsec. (a). Pub. L. 93–350, § 1(1), inserted reference to subsec. (d).
Subsec. (d). Pub. L. 93–350, § 1(2), added subsec. (d).
1972—Pub. L. 92–297 designated existing provisions as subsec. (a) and added subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries
Effective Date of 2007 Amendment; Transition RulesPub. L. 110–161, div. E, title V, § 535(e), Dec. 26, 2007, 121 Stat. 2077, provided that:
“(1) Effective date.—The amendments made by this section [amending this section and sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title] shall become effective on the later of June 30, 2008, or the first day of the first pay period beginning at least 6 months after the date of the enactment of this Act [Dec. 26, 2007].

“(2) Transition rules.—“(A) Nonapplicability of mandatory separation provisions to certain individuals.—The amendments made by subsections (a)(3) and (b)(6) [amending sections 8335 and 8425 of this title], respectively, shall not apply to an individual first appointed as a customs and border protection officer before the effective date under paragraph (1).

“(B) Treatment of prior cbpo service.—“(i) General rule.—Except as provided in clause (ii), nothing in this section [amending this section and sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title and enacting provisions set out as a note under this section] or any amendment made by this section shall be considered to apply with respect to any service performed as a customs and border protection officer before the effective date under paragraph (1).

“(ii) Exception.—Service described in section 8331(31) or 8401(36) of title 5, United States Code (as amended by this section) rendered before the effective date under paragraph (1) may be taken into account to determine if an individual who is serving on or after such effective date then qualifies as a customs and border protection officer by virtue of holding a supervisory or administrative position in the Department of Homeland Security.

“(C) Minimum annuity amount.—The annuity of an individual serving as a customs and border protection officer on the effective date under paragraph (1) pursuant to an appointment made before that date shall, to the extent that its computation is based on service rendered as a customs and border protection officer on or after that date, be at least equal to the amount that would be payable—“(i) to the extent that such service is subject to the Civil Service Retirement System, by applying section 8339(d) of title 5, United States Code, with respect to such service; and

“(ii) to the extent such service is subject to the Federal Employees’ Retirement System, by applying section 8415(d) [now 8415(e)] of title 5, United States Code, with respect to such service.

“(D) Rule of construction.—Nothing in the amendment made by subsection (c) [amending this section] shall be considered to apply with respect to any appointment made before the effective date under paragraph (1).

“(3) Election.—“(A) Incumbent defined.—For purposes of this paragraph, the term ‘incumbent’ means an individual who is serving as a customs and border protection officer on the date of the enactment of this Act.

“(B) Notice requirement.—Not later than 30 days after the date of the enactment of this Act, the Director of the Office of Personnel Management shall take measures reasonably designed to ensure that incumbents are notified as to their election rights under this paragraph, and the effect of making or not making a timely election.

“(C) Election available to incumbents.—“(i) In general.—An incumbent may elect, for all purposes, either—“(I) to be treated in accordance with the amendments made by subsection (a) or (b) [amending sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title], as applicable; or

“(II) to be treated as if subsections (a) and (b) had never been enacted.  “Failure to make a timely election under this paragraph shall be treated in the same way as an election made under subclause (I) on the last day allowable under clause (ii).

“(ii) Deadline.—An election under this paragraph shall not be effective unless it is made at least 14 days before the effective date under paragraph (1).

“(4) Definition.—For purposes of this subsection, the term ‘customs and border protection officer’ has the meaning given such term by section 8331(31) or 8401(36) of title 5, United States Code (as amended by this section).

“(5) Exclusion.—Nothing in this section or any amendment made by this section shall be considered to afford any election or to otherwise apply with respect to any individual who, as of the day before the date of the enactment of this Act—“(A) holds a position within U.S. Customs and Border Protection; and

“(B) is considered a law enforcement officer for purposes of subchapter III of chapter 83 or chapter 84 of title 5, United States Code, by virtue of such position.”

Effective Date of 1988 AmendmentPub. L. 100–238, title I, § 103(f), Jan. 8, 1988, 101 Stat. 1745, provided that: “This section, and the amendments made by this section [amending this section and sections 8401 and 8704 of this title and enacting provisions set out as a note under section 8334 of this title], shall be effective as of January 1, 1987.”

Effective Date of 1980 AmendmentAmendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title.

Effective Date of 1974 AmendmentPub. L. 93–350, § 7, July 12, 1974, 88 Stat. 356, provided that: “The amendments made by the first section [amending this section], and sections 2(b), 5, and 6 [amending sections 8331, 8336, and 8339 of this title], of this Act shall become effective on the date of enactment of this Act [July 12, 1974]. The amendments made by sections 2(a) and 3 [amending sections 8331 and 8334 of this title] of this Act shall become effective at the beginning of the first applicable pay period which begins after December 31, 1974. The amendment made by section 4 of this Act [amending section 8335 of this title] shall become effective on January 1, 1978.”

Effective Date of 1972 AmendmentAmendment by Pub. L. 92–297 effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as an Effective Date note under section 3381 of this title.

RegulationsPub. L. 110–161, div. E, title V, § 535(d), Dec. 26, 2007, 121 Stat. 2077, provided that: “Any regulations necessary to carry out the amendments made by this section [amending this section and sections 8331, 8334 to 8336, 8401, 8412, 8415, 8422, 8423, and 8425 of this title] shall be prescribed by the Director of the Office of Personnel Management in consultation with the Secretary of Homeland Security.”

United States Park Police; Age Limits for Original AppointmentsPub. L. 91–73, Sept. 26, 1969, 83 Stat. 116, which provided for age limits for appointments to the United States Park Police, was repealed by Pub. L. 92–297, § 11, May 16, 1972, 86 Stat. 145, effective at the end of the 89th day after May 16, 1972. The Secretary of the Interior may fix age limits for appointment under subsec. (c) of this section.

Executive Documents

Ex. Ord. No. 11817. Office of Personnel Management Designated Agent To Concur With Agency Determination Fixing Age Limits for Making Original Appointments Respecting Law Enforcement Officer and Firefighter Positions
Ex. Ord. No. 11817, Nov. 5, 1974, 39 F.R. 39427, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided:
By virtue of the authority vested in me by section 3307(d) of title 5 of the United States Code, as added by the first section of the Act of July 12, 1974 (Public Law 93–350; 88 Stat. 355), I hereby designate the Office of Personnel Management as the agency to concur with determinations made by agencies to fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331(20) and (21), respectively, of title 5 of the United States Code. The designation made by this order shall be effective as of October 15, 1974.

§ 3308. Competitive service; examinations; educational requirements prohibited; exceptions
The Office of Personnel Management or other examining agency may not prescribe a minimum educational requirement for an examination for the competitive service except when the Office decides that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education. The Office shall make the reasons for its decision under this section a part of its public records.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 854 (less 1st 2 sentences).June 27, 1944, ch. 287, § 5 (less 1st 2 sentences), 58 Stat. 388.

The prohibition is restated in positive form. The words “The Civil Service Commission or other examining agency” are added because these are the only agencies to which the prohibition could apply.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively, wherever appearing.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 3309. Preference eligibles; examinations; additional points for
A preference eligible who receives a passing grade in an examination for entrance into the competitive service is entitled to additional points above his earned rating, as follows—(1) a preference eligible under section 2108(3)(C)–(G) of this title—10 points; and

(2) a preference eligible under section 2108(3)(A)–(B) of this title—5 points.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 419; Pub. L. 90–83, § 1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 105–85, div. A, title XI, § 1102(b), Nov. 18, 1997, 111 Stat. 1922.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 852 (1st sentence).June 27, 1944, ch. 287, § 3 (less proviso), 58 Stat. 388.
  Jan. 19, 1948, ch. 1, § 2, 62 Stat. 3.
  Dec. 27, 1950, ch. 1151, § 2(a), 64 Stat. 1117.
  July 14, 1952, ch. 728, § 2, 66 Stat. 627.
  Aug. 14, 1953, ch. 485, § 1(a) “Sec. 3 (1st sentence)”, 67 Stat. 581.

The word “competitive” is added before “service” for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1997—Par. (2). Pub. L. 105–85 substituted “section 2108(3)(A)–(B)” for “section 2108(3)(A)”.
1967—Cl. (1). Pub. L. 90–83 substituted “section 2108(3)(C)–(G)” for “section 2108(3)(B)–(F).” See Historical and Revision Notes under section 3305 of this title.

§ 3310. Preference eligibles; examinations; guards, elevator operators, messengers, and custodians
In examinations for positions of guards, elevator operators, messengers, and custodians in the competitive service, competition is restricted to preference eligibles as long as preference eligibles are available.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 852 (2d sentence).June 27, 1944, ch. 287, § 3 (proviso), 58 Stat. 388.Aug. 14, 1953, ch. 485, § 1(a) “Sec. 3 (2d sentence)”, 67 Stat. 581.

The words “in the competitive service” are added for clarity. The reference to “examinations held prior to December 31, 1954, for positions of apprentices” is omitted as obsolete. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3311. Preference eligibles; examinations; crediting experience
In examinations for the competitive service in which experience is an element of qualification, a preference eligible is entitled to credit—(1) for service in the armed forces when his employment in a similar vocation to that for which examined was interrupted by the service; and

(2) for all experience material to the position for which examined, including experience gained in religious, civic, welfare, service, and organizational activities, regardless of whether he received pay therefor.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 853.June 27, 1944, ch. 287, § 4, 58 Stat. 388.

The words “for the competitive service” are added after “examinations” for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.
In paragraph (1), the words “service in the armed forces” are substituted for “in the military or naval service of the United States” on authority of the Act of July 26, 1947, ch. 343, § 305(a), 61 Stat. 508. The word “actual” is omitted as surplusage.
In paragraph (2), the words “material to the position for which examined” are substituted for “valuable” for clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3312. Preference eligibles; physical qualifications; waiver(a) In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Office of Personnel Management or other examining agency shall waive—(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and

(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible’s last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95–454, title III, § 307(c), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 854 (1st 2 sentences, less so much as relates to promotion, retention, and transfer).June 27, 1944, ch. 287, § 5 (1st 2 sentences, less so much as relates to promotion, retention, and transfer), 58 Stat. 388.

The section is restated for clarity and conciseness. The words “for which examination is given” and “for which the examination is given” are omitted as surplusage. The application of this section to the excepted service in the executive branch and the government of the District of Columbia is preserved by section 3320.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 designated existing provisions as subsec. (a), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively, and added subsec. (b).

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 3313. Competitive service; registers of eligibles
The names of applicants who have qualified in examinations for the competitive service shall be entered on appropriate registers or lists of eligibles in the following order—(1) for scientific and professional positions in GS–9 or higher, in the order of their ratings, including points added under section 3309 of this title; and

(2) for all other positions—(A) disabled veterans who have a compensable service-connected disability of 10 percent or more, in order of their ratings, including points added under section 3309 of this title; and

(B) remaining applicants, in the order of their ratings, including points added under section 3309 of this title.

The names of preference eligibles shall be entered ahead of others having the same rating.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 856.June 27, 1944, 287, § 7, 58 Stat. 389.Aug. 14, 1953, ch. 485, § 1(b), 67 Stat. 581.

The section is restated for clarity and conciseness. The words “for the competitive service” are added for clarity. Application of this section to the excepted service in the executive branch and to the government of the District of Columbia is carried into section 3320. The words “employment lists” are omitted as included in “appropriate registers or lists of eligibles”.
In paragraph (1), the words “in GS–9 or higher” are substituted for “in grade 9 or higher of the General Schedule of the Classification Act of 1949, as amended” in view of the codification of the Act in this title, and, in specific sections 5104 and 5332.
In paragraph (2)(A), the term “disabled veterans” is substituted for “preference eligibles” in view of the definition of “disabled veteran” in section 2108(2).
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3314. Registers; preference eligibles who resigned
A preference eligible who resigns, on request to the Office of Personnel Management, is entitled to have his name placed again on all registers for which he may have been qualified, in the order named by section 3313 of this title.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 865.June 27, 1944, ch. 287, § 16, 58 Stat. 391.

The last 28 words of former section 865 relating to recertification and reappointments are omitted since under sections 3317 and 3318(a) certification and appointment follow from placing on registers.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 3315. Registers; preference eligibles furloughed or separated(a) A preference eligible who has been separated or furloughed without delinquency or misconduct, on request, is entitled to have his name placed on appropriate registers and employment lists for every position for which his qualifications have been established, in the order named by section 3313 of this title. This subsection applies to registers and employment lists maintained by the Office of Personnel Management, an Executive agency, or the government of the District of Columbia.

(b) The Office may declare a preference eligible who has been separated or furloughed without pay under section 7512 of this title to be entitled to the benefits of subsection (a) of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 96–54, § 2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 864 (1st sentence).June 27, 1944, ch. 287 § 15 (1st sentence), 58 Stat. 391.
(b)5 U.S.C. 863 (2d proviso).June 27, 1944, ch. 287, § 14 (2d proviso), 58 Stat. 391.

In subsection (a), the term “Executive agency” is substituted for “any agency or project of the Federal Government” on authority of former section 869. The last 28 words of the 1st sentence of former section 864 relating to recertification and reappointment are omitted since under sections 3317 and 3318(a) certification and appointment follow from placing on registers.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1979—Subsec. (a). Pub. L. 96–54, § 2(a)(14), substituted “Office of Personnel Management” for “Civil Service Commission”.
Subsec. (b). Pub. L. 96–54, § 2(a)(15), substituted “Office” for “Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

[§ 3315a. Repealed. Pub. L. 93–416, § 22(c), Sept. 7, 1974, 88 Stat. 1150]

Section, added Pub. L. 90–83 § 1(9)(A), Sept. 11, 1967, 81 Stat. 197, related to registration by Civil Service Commission of employees receiving compensation for injuries for certification for appointment to vacant positions.

§ 3316. Preference eligibles; reinstatement
On request of an appointing authority, a preference eligible who has resigned or who has been dismissed or furloughed may be certified for, and appointed to, a position for which he is eligible in the competitive service, an Executive agency, or the government of the District of Columbia.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 862.June 27, 1944, ch. 287, § 13, 58 Stat. 390.

The word “authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1).
The words “in the competitive service, an Executive agency, or the government of the District of Columbia” are substituted for “in the civil service, Federal, or District of Columbia, or in any establishment, agency, bureau, administration, project, or department, temporary or permanent” on authority of former section 869.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3317. Competitive service; certification from registers(a) The Office of Personnel Management shall certify enough names from the top of the appropriate register to permit a nominating or appointing authority who has requested a certificate of eligibles to consider at least three names for appointment to each vacancy in the competitive service.

(b) When an appointing authority, for reasons considered sufficient by the Office, has three times considered and passed over a preference eligible who was certified from a register, certification of the preference eligible for appointment may be discontinued. However, the preference eligible is entitled to advance notice of discontinuance of certification.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 95–454, title IX, § 906(a)(3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)

Repeal and Reenactment of SectionPub. L. 115–232, div. A, title XI, § 1107(a), (d), Aug. 13, 2018, 132 Stat. 2002, 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is repealed and a new section 3317 is enacted to read as follows:
§ 3317. Competitive service; certification using numerical ratings

(a) Certification.—
(1) In general.—The Director of the Office of Personnel Management, or the head of an agency to which the Director has delegated examining authority under section 1104(a)(2), shall certify a sufficient number of names from the top of the appropriate register or list of eligibles, as determined pursuant to regulations prescribed under subsection (c), and provide a certificate with such names to an appointing authority that has requested a certificate of eligibles to consider when filling a job in the competitive service.
(2) Minimum number of names certified.—Unless otherwise provided for in regulations prescribed under subsection (c), the number of names certified under paragraph (1) shall be not less than three.
(b) Discontinuance of Certification.—When an appointing authority, for reasons considered sufficient by the Director or head of an agency, has three times considered and passed over a preference eligible who was certified from a register, the Director or head of any agency may discontinue certifying the preference eligible for appointment. The Director or the head of an agency shall provide to such preference eligible notice of the intent to discontinue certifying such preference eligible prior to the discontinuance of certification.
(c) Regulations.—The Director shall prescribe regulations for the administration of this section. Such regulations shall include the establishment of mechanisms for identifying the eligibles who will be considered for each vacancy. Such mechanisms may include cut-off scores.
(d) Definition.—In this section, the term “Director” means the Director of the Office of Personnel Management.

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 857 (1st sentence and 2d proviso).June 27, 1944, ch. 287, § 8 (1st sentence and 2d proviso), 58 Stat. 389.

In subsection (a), the word “authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1). The words “in the competitive service” have been added for clarity. Application of the section to the excepted service in the executive branch and to the government of the District of Columbia, as provided in former section 858, is carried into section 3320.
In subsection (b), the word “thereafter” is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1979—Subsec. (a). Pub. L. 96–54, § 2(a)(14), substituted “Office of Personnel Management” for “Civil Service Commission”.
Subsec. (b). Pub. L. 96–54, § 2(a)(15), amended subsec. (b) in same manner as amendment by Pub. L. 95–454. See 1978 Amendment note set out below.
1978—Subsec. (b). Pub. L. 95–454 which purported to amend section 3317b of this title by substituting “Office” for “Commission” was executed to subsec. (b) of this section as the probable intent of Congress.

Statutory Notes and Related Subsidiaries
Effective Date of 2018 AmendmentPub. L. 115–232, div. A, title XI, § 1107(d), Aug. 13, 2018, 132 Stat. 2005, provided that:
“(1) In general.—The amendments made by this section [enacting this section and section 3318 of this title, amending sections 3319 and 3320 of this title, and repealing this section and section 3318 of this title] shall take effect on the date on which the Director of the Office of Personnel Management issues final regulations to implement sections 3317, 3318, and 3319 of title 5, United States Code, as amended or added by this section.

“(2) Regulations required.—The Director shall issue regulations under paragraph (1) not later than one year after the date of enactment of this section [Aug. 13, 2018].”

Effective Date of 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 AmendmentAmendment 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.

§ 3318. Competitive service; selection from certificates(a) The nominating or appointing authority shall select for appointment to each vacancy from the highest three eligibles available for appointment on the certificate furnished under section 3317(a) of this title, unless objection to one or more of the individuals certified is made to, and sustained by, the Office of Personnel Management for proper and adequate reason under regulations prescribed by the Office.

(b) Other Appointing Authorities.—(1) In general.—During the 240-day period beginning on the date of issuance of a certificate of eligibles under section 3317(a), an appointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the “other appointing authority”) may select an individual from that certificate in accordance with this subsection for an appointment to a position that is—(A) in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the “original position”); and

(B) at a similar grade level as the original position.

(2) Applicability.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority.

(3) Requirements.—The selection of an individual under paragraph (1)—(A) shall be made in accordance with subsection (a); and

(B) subject to paragraph (4), may be made without any additional posting under section 3327.

(4) Internal notice.—Before selecting an individual under paragraph (1), and subject to the requirements of any collective bargaining obligation of the other appointing authority, the other appointing authority shall—(A) provide notice of the available position to employees of the other appointing authority;

(B) provide up to 10 business days for employees of the other appointing authority to apply for the position; and

(C) review the qualifications of employees submitting an application.

(5) Collective bargaining obligations.—Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.

(c)(1) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not a preference eligible, such authority shall file written reasons with the Office for passing over the preference eligible. The Office shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings of the Office.

(2) In the case of a preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this subsection, notify the preference eligible of the proposed passover, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, before completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notification was timely sent to the preference eligible’s last known address.

(3) A preference eligible not described in paragraph (2) of this subsection, or his representative, shall be entitled, on request, to a copy of—(A) the reasons submitted by the appointing authority in support of the proposed passover, and

(B) the findings of the Office.

(4) In the case of a preference eligible described in paragraph (2) of this subsection, the functions of the Office under this subsection may not be delegated.

(d) When three or more names of preference eligibles are on a reemployment list appropriate for the position to be filled, a nominating or appointing authority may appoint from a register of eligibles established after examination only an individual who qualifies as a preference eligible under section 2108(3)(C)–(G) of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 90–83, § 1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95–454, title III, § 307(d), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224; Pub. L. 114–137, § 2(a), Mar. 18, 2016, 130 Stat. 310.)

Repeal and Reenactment of SectionPub. L. 115–232, div. A, title XI, § 1107(a), (d), Aug. 13, 2018, 132 Stat. 2003, 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is repealed and a new section 3318 is enacted to read as follows:
§ 3318. Competitive service; selections using numerical ratings

(a) In General.—An appointing authority shall select for appointment from the eligibles certified for appointment on a certificate furnished under section 3317(a), unless objection to one or more of the individuals certified is made to, and sustained by, the Director of the Office of Personnel Management or the head of an agency to which the Director has delegated examining authority under section 1104(a)(2), for proper and adequate reason under regulations prescribed by the Director.
(b) Other Appointing Authorities.—
(1) In general.—During the 240-day period beginning on the date of issuance of a certificate of eligibles under section 3317(a), an appointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the “other appointing authority”) may select an individual from that certificate in accordance with this subsection for an appointment to a position that is—
(A) in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the “original position”); and
(B) at a similar grade level as the original position.
(2) Applicability.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority.
(3) Requirements.—The selection of an individual under paragraph (1)—
(A) shall be made in accordance with subsection (a); and
(B) subject to paragraph (4), may be made without any additional posting under section 3327.
(4) Internal notice.—Before selecting an individual under paragraph (1), the other appointing authority shall—
(A) provide notice of the available position to employees of the other appointing authority;
(B) provide up to 10 business days for employees of the other appointing authority to apply for the position; and
(C) review the qualifications of employees submitting an application.
(c) Pass Over.—
(1) In general.—Subject to subparagraph (2), if an appointing authority proposes to pass over a preference eligible certified for appointment under subsection (a) and select an individual who is not a preference eligible, the appointing authority shall file written reasons with the Director or the head of the agency for passing over the preference eligible. The Director or the head of the agency shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Director or the head of the agency shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2). When the Director or the head of the agency has completed review of the proposed pass-over of the preference eligible, the Director or the head of the agency shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings.
(2) Preference eligible individuals who have a compensable service-connected disability.—In the case of a preference eligible described in section 2108(3)(C) who has a compensable service-connected disability of 30 percent or more, the appointing authority shall notify the Director under paragraph (1) and, at the same time, notify the preference eligible of the proposed pass-over, of the reasons for the proposed pass-over, and of the individual’s right to respond to those reasons to the Director within 15 days of the date of the notification. The Director shall, before completing the review under paragraph (1), require a demonstration by the appointing authority that the notification was timely sent to the preference eligible’s last known address.
(3) Further consideration not required.—When a preference eligible, for reasons considered sufficient by the Director, or in the case of a preference eligible described in paragraph (1), by the head of an agency, has been passed over in accordance with this subsection for the same position, the appointing authority is not required to give further consideration to that preference eligible while selecting from the same list for a subsequent appointment to such position.
(4) Delegation prohibition.—In the case of a preference eligible described in paragraph (2), the functions of the Director under this subsection may not be delegated to an individual who is not an officer or employee of the Office of Personnel Management.
(d) Special Rule Regarding Reemployment Lists.—When the names of preference eligibles are on a reemployment list appropriate for the position to be filled, an appointing authority may appoint from a register of eligibles established after examination only an individual who qualifies as a preference eligible under subparagraph (C), (D), (E), (F), or (G) of section 2108(3).
(e) Consideration Not Required.—In accordance with regulations prescribed by the Director, an appointing officer is not required to consider an eligible who has been considered by the appointing officer for three separate appointments from the same or different certificates for the same position.
(f) Regulations.—The Director shall prescribe regulations for the administration of this section.
(d)[sic] Definition.—In this section, the term “Director” means the Director of the Office of Personnel Management.

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a), (b)5 U.S.C. 633(2)2.Jan. 16, 1883, ch. 27, § 2(2)2, 22 Stat. 404.
 5 U.S.C. 857 (less 1st sentence, 2d proviso, and last sentence).June 27, 1944, ch. 287, § 8 (less 1st sentence, 2d proviso, and last sentence), 58 Stat. 389.Aug. 14, 1953, ch. 485, § 2, 67 Stat. 582.
(c)5 U.S.C. 864 (less 1st sentence).June 27, 1944, ch. 287, § 15 (less 1st sentence), 58 Stat. 391.

The word “authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1).
In subsection (a), the provisions of former section 633(2)2 are merged in the requirement of former section 857, since the certificate must be of the three highest on the register and the nominating or appointing employee may select one of the three.
In subsection (c), the prohibition in former section 864 is restated in positive form. The words “an individual who qualifies as a preference eligible under section 2108(3)(B)–(F)” are substituted for “ten-point preference eligibles”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2016—Subsecs. (b) to (d). Pub. L. 114–137 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
1978—Subsec. (a). Pub. L. 95–454, § 906(a)(2), (3), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively.
Subsec. (b). Pub. L. 95–454, § 307(d), designated existing provisions as par. (1), substituted provisions respecting authority of the Office with respect to the selection procedures applicable, for provisions respecting authority of the Commission with respect to the selection procedures applicable, and added pars. (2) to (4).
1967—Subsec. (c). Pub. L. 90–83 substituted “section 2108(3)(C)–(G)” for “section 2108(3)(B)–(F).” See Historical and Revision Notes under section 3305 of this title.

Statutory Notes and Related Subsidiaries
Effective Date of 2018 AmendmentRepeal and reenactment of section effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as a note under section 3317 of this title.

Effective Date of 1978 AmendmentAmendment 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.

RegulationsPub. L. 114–137, § 2(d), Mar. 18, 2016, 130 Stat. 312, provided that: “Not later than 1 year after the date of enactment of this Act [Mar. 18, 2016], the Director of the Office of Personnel Management shall issue an interim final rule with comment to carry out the amendments made by this section [amending this section and sections 3319 and 9510 of this title].”

§ 3319. Alternative ranking and selection procedures(a) The Office, in exercising its authority under section 3304, or an agency to which the Office has delegated examining authority under section 1104(a)(2), may establish category rating systems for evaluating applicants for positions in the competitive service, under 2 or more quality categories based on merit consistent with regulations prescribed by the Office of Personnel Management, rather than assigned individual numerical ratings.

(b) Within each quality category established under subsection (a), preference-eligibles shall be listed ahead of individuals who are not preference eligibles. For other than scientific and professional positions at GS–9 of the General Schedule (equivalent or higher), qualified preference-eligibles who have a compensable service-connected disability of 10 percent or more shall be listed in the highest quality category.

(c) Selection.—(1) In general.—An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories.

(2) Use by other appointing officials.—Under regulations prescribed by the Office of Personnel Management, appointing officials other than the appointing official described in paragraph (1) (in this subsection referred to as the “other appointing official”) may select an applicant for an appointment to a position that is—(A) in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the “original position”); and

(B) at a similar grade level as the original position.

(3) Applicability.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority.

(4) Requirements.—The selection of an individual under paragraph (2)—(A) shall be made in accordance with this subsection; and

(B) subject to paragraph (5), may be made without any additional posting under section 3327.

(5) Internal notice.—Before selecting an individual under paragraph (2), and subject to the requirements of any collective bargaining obligation of the other appointing authority (within the meaning given that term in section 3318(b)(1)), the other appointing official shall—(A) provide notice of the available position to employees of the appointing authority employing the other appointing official;

(B) provide up to 10 business days for employees of the other appointing authority to apply for the position; and

(C) review the qualifications of employees submitting an application.

(6) Collective bargaining obligations.—Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.

(7) Preference eligibles.—Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section 11 So in original. 3317(b) and 1 3318(c), as applicable, are satisfied.

(d) Each agency that establishes a category rating system under this section shall submit in each of the 3 years following that establishment, a report to Congress on that system including information on—(1) the number of employees hired under that system;

(2) the impact that system has had on the hiring of veterans and minorities, including those who are American Indian or Alaska Natives, Asian, Black or African American, and native Hawaiian or other Pacific Islanders; and

(3) the way in which managers were trained in the administration of that system.

(e) The Office of Personnel Management may prescribe such regulations as it considers necessary to carry out the provisions of this section.

(Added Pub. L. 107–296, title XIII, § 1312(a)(2), Nov. 25, 2002, 116 Stat. 2290; amended Pub. L. 114–137, § 2(b), Mar. 18, 2016, 130 Stat. 311; Pub. L. 115–232, div. A, title XI, § 1107(b)(1), Aug. 13, 2018, 132 Stat. 2005.)

Amendment of SectionPub. L. 115–232, div. A, title XI, § 1107(b)(1), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is amended—
(1) by amending the section heading to read as follows: “§ 3319. Competitive service; selection using category rating”; and
(2) in subsection (c), by striking paragraph (6), redesignating paragraph (7) as paragraph (6), and amending paragraph (6) (as so redesignated) to read as follows:
(6) Preference eligibles.—
(A) Satisfaction of certain requirements.—Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of sections 3317(b) and 3318(c), as applicable, are satisfied.
(B) Further consideration not required.—When a preference eligible, for reasons considered sufficient by the Director, or in the case of a preference eligible described in section 3318(c)(1), by the head of an agency, has been passed over in accordance with section 3318(c) for the same position, the appointing authority is not required to give further consideration to that preference eligible while selecting from the same list for a subsequent appointment to such position.
(C) List of eligibles issued from a standing register; discontinuation of certification.—In the case of lists of eligibles issued from a standing register, when an appointing authority, for reasons considered sufficient by the Director or the head of an agency, has three times considered and passed over a preference eligible who was certified from a register, certification of the preference eligible for appointment may be discontinued. However, the preference eligible is entitled to advance notice of discontinuance of certification in accordance with regulations prescribed by the Director.
See 2018 Amendment notes below.

Editorial Notes

References in TextThe General Schedule, referred to in subsec. (b), is set out under section 5332 of this title.

Prior ProvisionsA prior section 3319, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421, related to prohibitions on employment of members of same family in the competitive service, prior to repeal by Pub. L. 95–454, title III, § 307(h)(1), title IX, § 907, Oct. 13, 1978, 92 Stat. 1149, 1227, effective 90 days after Oct. 13, 1978.

Amendments2018—Pub. L. 115–232, § 1107(b)(1)(A), substituted “Competitive service; selection using category rating” for “Alternative ranking and selection procedures” in section catchline.
Subsec. (c)(6). Pub. L. 115–232, § 1107(b)(1)(B), redesignated par. (7) as (6) and amended it generally. Prior to amendment, text read as follows: “Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section 3317(b) and 3318(c), as applicable, are satisfied.”
Pub. L. 115–232, § 1107(b)(1)(B), struck out par. (6). Text read as follows: “Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.”
Subsec. (c)(7). Pub. L. 115–232, § 1107(b)(1)(B), redesignated par. (7) as (6).
2016—Subsec. (c). Pub. L. 114–137 added subsec. (c) and struck out former subsec. (c) which read as follows:
“(1) An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories.
“(2) Notwithstanding paragraph (1), the appointing official may not pass over a preference-eligible in the same category from which selection is made, unless the requirements of section 3317(b) or 3318(b), as applicable, are satisfied.”

Statutory Notes and Related Subsidiaries
Effective Date of 2018 AmendmentAmendment by Pub. L. 115–232 effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as a note under section 3317 of this title.

Effective DateSection effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as a note under section 101 of Title 6, Domestic Security.

§ 3320. Excepted service; government of the District of Columbia; selection
The nominating or appointing authority shall select for appointment to each vacancy in the excepted service in the executive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308–3318 of this title. This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 115–232, div. A, title XI, § 1107(b)(2), Aug. 13, 2018, 132 Stat. 2005.)

Amendment of SectionPub. L. 115–232, div. A, title XI, § 1107(b)(2), (d), Aug. 13, 2018, 132 Stat. 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, this section is amended by striking “sections 3308–3318” and inserting “sections 3308 through 3319”. See 2018 Amendment note below.

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 858.June 27, 1944, ch. 287, § 9, 58 Stat. 389.
 5 U.S.C. 869.June 27, 1944, ch. 287, § 20, 58 Stat. 391.

Former sections 858 and 869 are combined and restated for clarity and to conform to section 3318(a). The word “authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1). The words “shall select for appointment to each vacancy in the expected service in the executive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308–3318 of this title” are substituted for “In the unclassified Federal, and District of Columbia, civil service, and in all other positions and employment hereinbefore referred to in (c) of section 851 of this title . . . shall make selection from the qualified applicants in accordance with the provisions of this chapter”. The reference to the excepted service “in the executive branch” is substituted for the exception of the legislative and judicial branches in former section 869. Former section 869 did not prohibit the application of those provisions of the Act of June 27, 1944, which relate to the competitive service in the legislative or judicial branch by reason of the specific provisions of section 311 of the Act of June 10, 1921, as amended (31 U.S.C. 52); 28 U.S.C. 602; and Executive Order No. 67 of June 13, 1895. The reference to appointments of postmasters is omitted from this section since those referred to are in the competitive service. The application of former section 869 to the remainder of the Act of June 27, 1944, is covered by the sections into which the remainder is carried (see Table I).
This section merely continues, and does not in any way change, the requirements in former section 858 relative to the selection of applicants for positions in the excepted service. Under this section, the Federal Bureau of Investigation and other agencies having positions in the excepted service will continue to fill those positions in the same manner that they have been filled under former section 858. Such excepted appointments are appointments authorized to be made without regard to the statutes, rules, and regulations governing appointments in the competitive service and this is not changed.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2018—Pub. L. 115–232 substituted “sections 3308 through 3319” for “sections 3308–3318”.

Statutory Notes and Related Subsidiaries
Effective Date of 2018 AmendmentAmendment by Pub. L. 115–232 effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as an Effective Date of Repeal note under section 3317 of this title.

Assistance of United States Civil Service Commission in Developing Merit System for District of ColumbiaPub. L. 93–198, title VII, § 734, Dec. 24, 1973, 87 Stat. 823, authorized the United States Civil Service Commission to advise and assist the District of Columbia Mayor and Council in the further development of the merit system or systems required by the District of Columbia charter, which was approved on May 7, 1974, and authorized the Commission to enter into agreements with the District government to make available its registers of eligibles as a recruiting source to fill District positions as needed, with the costs of any specific services furnished by the Civil Service Commission to be compensated for under the provisions of section 685a of former Title 31, Money and Finance [31 U.S.C. 1537].

§ 3321. Competitive service; probationary period(a) The President may take such action, including the issuance of rules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation—(1) before an appointment in the competitive service becomes final; and

(2) before initial appointment as a supervisor or manager becomes final.

(b) An individual—(1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and

(2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section,

shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance.

(c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, or any individual covered by section 1599e of title 10.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 95–454, title III, § 303(a), Oct. 13, 1978, 92 Stat. 1146; Pub. L. 100–325, § 2(d), May 30, 1988, 102 Stat. 581; Pub. L. 114–92, div. A, title XI, § 1105(c)(1), Nov. 25, 2015, 129 Stat. 1024.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 633(2)4.Jan. 16, 1883, ch. 27. § 2(2)4, 22 Stat. 404.

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. Wording is changed because in practice an appointment is not made after probation. The words “or employment” are omitted as included within “appointment”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2015—Subsec. (c). Pub. L. 114–92 inserted “, or any individual covered by section 1599e of title 10” before period at end.
1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.
1978—Pub. L. 95–454 substituted “probationary period” for “probation; period of” in section catchline, designated existing provisions as subsec. (a), substituted provisions authorizing the President to take necessary action, for provisions authorizing the President to prescribe rules, and added subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 3322. Voluntary separation before resolution of personnel investigation(a) With respect to any employee occupying a position in the competitive service or the excepted service who is the subject of a personnel investigation and resigns from Government employment prior to the resolution of such investigation, the head of the agency from which such employee so resigns shall, if an adverse finding was made with respect to such employee pursuant to such investigation, make a permanent notation in the employee’s official personnel record file. The head shall make such notation not later than 40 days after the date of the resolution of such investigation.

(b) Prior to making a permanent notation in an employee’s official personnel record file under subsection (a), the head of the agency shall—(1) notify the employee in writing within 5 days of the resolution of the investigation and provide such employee a copy of the adverse finding and any supporting documentation;

(2) provide the employee with a reasonable time, but not less than 30 days, to respond in writing and to furnish affidavits and other documentary evidence to show why the adverse finding was unfounded (a summary of which shall be included in any notation made to the employee’s personnel file under subsection (d)); and

(3) provide a written decision and the specific reasons therefore to the employee at the earliest practicable date.

(c) An employee is entitled to appeal the decision of the head of the agency to make a permanent notation under subsection (a) to the Merit Systems Protection Board under section 7701.

(d)(1) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the agency head shall make a notation in the employee’s official personnel record file indicating that an appeal disputing the notation is pending not later than 2 weeks after the date on which such appeal was filed.

(2) If the head of the agency is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) from the employee’s official personnel record file.

(3) If the employee is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) and the notation of an adverse finding made under subsection (a) from the employee’s official personnel record file.

(e) In this section, the term “personnel investigation” includes—(1) an investigation by an Inspector General; and

(2) an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service under chapter 43 or chapter 75.

(Added Pub. L. 114–328, div. A, title XI, § 1140(a), Dec. 23, 2016, 130 Stat. 2470.)

Editorial Notes
Prior ProvisionsA prior section 3322, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422, related to temporary appointments after age 70 in the competitive service, prior to repeal by Pub. L. 95–256, § 5(b)(1), Apr. 6, 1978, 92 Stat. 191, effective Sept. 30, 1978.

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 114–328, div. A, title XI, § 1140(b), Dec. 23, 2016, 130 Stat. 2471, provided that: “The amendment made by subsection (a) [enacting this section] shall apply to any employee described in section 3322 of title 5, United States Code, (as added by such subsection) who leaves the service after the date of enactment of this Act [Dec. 23, 2016].”

§ 3323. Automatic separations; reappointment; reemployment of annuitants(a) An individual who reaches the retirement age prescribed for automatic separation applicable to him may not be continued in the civil service or in the government of the District of Columbia. An individual separated on account of age under a statute or regulation providing for retirement on account of age is not eligible for appointment in the civil service or in the government of the District of Columbia. The President, when in his judgment the public interest so requires, may except an individual from this subsection by Executive order. This subsection does not apply to an individual named by a statute providing for the continuance of the individual in the civil service or in the government of the District of Columbia.

(b)(1) Notwithstanding other statutes, an annuitant, as defined by section 8331 or 8401, receiving annuity from the Civil Service Retirement and Disability Fund is not barred by reason of his retired status from employment in an appointive position for which the annuitant is qualified. An annuitant so reemployed, other than an annuitant reappointed under paragraph (2) of this subsection, serves at the will of the appointing authority.

(2) Subject to such regulations as the Director of the Office of Personnel Management may prescribe, any annuitant to whom the first sentence of paragraph (1) of this subsection applies and who has served as an administrative law judge pursuant to an appointment under section 3105 of this title may be reappointed an administrative law judge under such section for a specified period or for such period as may be necessary for such administrative law judge to conduct and complete the hearing and disposition of one or more specified cases. The provisions of this title that apply to or with respect to administrative law judges appointed under section 3105 of this title shall apply to or with respect to administrative law judges reappointed under such section pursuant to the first sentence of this paragraph.

(c) Notwithstanding subsection (a) of this section, a member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980 is not barred by reason of his retired status from employment in a position in the civil service for which he is qualified. An annuitant so reemployed serves at the will of the appointing authority.

(d) Notwithstanding subsection (a) of this section, the Chief of Engineers of the Army, under section 569a of title 33, may employ a retired employee whose expert assistance is needed in connection with river and harbor or flood control works. There shall be deducted from the pay of an employee so reemployed an amount equal to the annuity or retired pay allocable to the period of actual employment.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 96–465, title II, § 2314(a), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 98–224, § 2, Mar. 2, 1984, 98 Stat. 47; Pub. L. 102–378, § 2(10), Oct. 2, 1992, 106 Stat. 1347.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 715a.June 30, 1932, ch. 314, § 204, 47 Stat. 404.
(b)5 U.S.C. 2263(a).July 31, 1956, ch. 804, § 401 “Sec. 13(a)”, 70 Stat. 757.
(c)22 U.S.C. 915(c).Sept. 8, 1960, Pub. L. 86–723, § 10(d), 74 Stat. 832.
(d)33 U.S.C. 544a, 701l.June 20, 1938, ch. 535, § 5, 52 Stat. 805.

In subsection (a), the words “On and after July 1, 1932” are omitted as executed. The words “heretofore or hereafter” are omitted as unnecessary. The words “in the civil service” are substituted for “civilian service in any branch or service of the United States Government” and “to any appointive office, position, or employment under the United States” in view of the definition of “civil service” in section 2101.
In subsection (b), the words “receiving annuity from the Civil Service Retirement and Disability Fund” are substituted for “heretofore or hereafter retired under this chapter”. The word “authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1).
In subsection (c), the words “Notwithstanding subsection (a) of this section” are substituted for “Notwithstanding the provisions of sections 62 and 715a of title 5” to reflect the codification of former section 715a in subsection (a) of this section and in view of the repeal of section 62 of title 5 by § 402(a)(7) of the Act of Aug. 19, 1964, Pub. L. 88–448, 78 Stat. 492. The words “heretofore or hereafter” and “hereafter” are omitted as unnecessary. The words “in a position in the civil service” are substituted for “in Federal Government service in any appointive position” in view of the definition of “civil service” in section 2101. The word “authority” is substituted for “officer” in recognition of the several appointing authorities named in section 2105(a)(1).
In subsection (d), the words “Notwithstanding subsection (a) of this section” are substituted for “The provisions of section 715a of title 5 shall not be so construed as to prevent” to reflect the codification of former section 715a in subsection (a) of this section, and to conform to the style of this section. The words “under section 569a of title 33” are substituted for “under agreement as authorized by sections 569a, 584a and 607a of title 33” on authority of the provision contained in section 569a of title 33. The word “employee” is coextensive with and substituted for “civilian employee” in view of the definition of “employee” in section 2105. The last sentence is restated for clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

References in TextSection 812 of the Foreign Service Act of 1980, referred to in subsec. (c), is classified to section 4052 of Title 22, Foreign Relations and Intercourse.

Amendments1992—Subsec. (b)(1). Pub. L. 102–378 substituted “annuitant, as defined by section 8331 or 8401,” for “annuitant as defined by section 8331 of this title”.
1984—Subsec. (b). Pub. L. 98–224 designated existing provisions as par. (1), substituted “the annuitant” for “he” and inserted “, other than an annuitant reappointed under paragraph (2) of this subsection,”, and added par. (2).
1980—Subsec. (c). Pub. L. 96–465 substituted “member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980” for “Foreign Service officer retired under section 1001 or 1002 of title 22 or a Foreign Service staff officer or employee retired under section 1063 of title 22”.

Statutory Notes and Related Subsidiaries
Effective Date of 1980 AmendmentAmendment by Pub. L. 96–465 effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as an Effective Date note under section 3901 of Title 22, Foreign Relations and Intercourse.

§ 3324. Appointments to positions classified above GS–15(a) An appointment to a position classified above GS–15 pursuant to section 5108 may be made only on approval of the qualifications of the proposed appointee by the Director of the Office of Personnel Management on the basis of qualification standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director. This section does not apply to a position—(1) to which appointment is made by the Chief Judge of the United States Tax Court;

(2) to which appointment is made by the President;

(3) to which appointment is made by the Librarian of Congress; or

(4) the incumbent of which is paid from—(A) appropriations for the Executive Office of the President under the heading “The White House Office”, “Special Projects”, “Council of Economic Advisers”, or “National Security Council”; or

(B) funds appropriated to the President under the heading “Emergency Fund for the President” by the Treasury, Post Office, and Executive Office Appropriation Act, 1966, or a later statute making appropriations for the same purpose.

(b) The Office may prescribe regulations necessary for the administration of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 90–83, § 1(10), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(17), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(C)(i), (ii)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 102–378, § 2(11), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 110–372, § 2(c)(2), Oct. 8, 2008, 122 Stat. 4044.)

Historical and Revision Notes

1966 Act

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1105(i).June 20, 1958, Pub. L. 85–462, § 10 “(i)”, 72 Stat. 213.Sept. 13, 1960, Pub. L. 86–768, 74 Stat. 910.

In subsection (a), the words “in GS–16, 17, and 18” are substituted for “in grades 16, 17, and 18 of the General Schedule”.
In subsection (a)(2), the words “by the President” are coextensive with and substituted for “by the President alone or by the President by and with the advice and consent of the Senate”.
In subsection (a)(4)(A), the words “Office of Emergency Planning” are substituted for “Office of Defense Mobilization” on authority of 1958 Reorg. Plan No. 1, § 2(a), effective July 1, 1958, 72 Stat. 1799, as amended Aug. 26, 1958, Pub. L. 85–763, 72 Stat. 861, and Sept. 22, 1961, Pub. L. 87–296, 75 Stat. 630. Reference to “President’s Advisory Committee on Government Organization” is omitted since the Committee was abolished by Executive Order No. 10917, February 10, 1961.
In subsection (a)(4)(B), the words “ ‘Emergency Fund for the President’ by the Treasury, Post Office, and Executive Office Appropriation Act, 1966” are substituted for “ ‘Emergency Fund for the President, National Defense’ by the General Government Matters Appropriation Act, 1959” to reflect the heading and title of the current appropriation Act.
Subsection (b) is added on authority of former sections 1072 and 1072a, which are carried into section 5115.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 ActThis section amends 5 U.S.C. 3324(a)(4)(A) to correct typographical errors.

Editorial Notes

References in TextThe Treasury, Post Office, and Executive Office Appropriation Act, 1966, referred to in subsec. (a)(4)(B), is Pub. L. 89–57, June 30, 1965, 79 Stat. 196. For classification of this Act to the Code, see Tables.

Amendments2008—Subsec. (a). Pub. L. 110–372 substituted “the Director of the Office of Personnel Management on the basis of qualification standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director” for “the Office of Personnel Management” in introductory provisions.
1992—Pub. L. 102–378, § 2(11)(A), substituted “GS–15” for “GA–15” in section catchline.
Subsec. (a)(1). Pub. L. 102–378, § 2(11)(B), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “provided for in section 5108(c)(2) of this title;”.
1990—Pub. L. 101–509, § 529 [title I, § 101(b)(9)(C)(ii)], which directed that “to positions classified above GA–15” be substituted for “at GS–16, 17, or 18” in section catchline, was executed by making the substitution for “at GS–16, 17, and 18”, as the probable intent of Congress.
Subsec. (a). Pub. L. 101–509, § 529 [title I, § 101(b)(9)(C)(i)], substituted “classified above GS–15 pursuant to section 5108” for “in GS–16, 17, or 18”.
1979—Subsec. (a)(4)(A). Pub. L. 96–54 struck out reference to Office of Emergency Planning.
1978—Subsecs. (a), (b). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 2008 AmendmentAmendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1992 AmendmentAmendment by Pub. L. 102–378 effective May 4, 1991, see section 9(b)(4) of Pub. L. 102–378, set out as a note under section 6303 of this title.

Effective Date of 1990 AmendmentAmendment 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 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 AmendmentAmendment 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.

Effective Date of 1967 AmendmentAmendment by Pub. L. 90–83 effective as of Sept. 6, 1966, for all purposes, see section 9(h) of Pub. L. 90–83, set out as a note under section 5102 of this title.

§ 3325. Appointments to scientific and professional positions(a) Positions established under section 3104 of this title are in the competitive service. However, appointments to the positions are made without competitive examination on approval of the qualifications of the proposed appointee by the Office of Personnel Management on the basis of standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director of the Office of Personnel Management.

(b) This section does not apply to positions established under section 3104(c).

(c) The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purpose of this section.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 423; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 102–378, § 2(12), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 110–372, § 2(c)(3), Oct. 8, 2008, 122 Stat. 4044.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 1162(a).Oct. 4, 1961, Pub. L. 87–367, § 202 “Sec. 2(a)”, 75 Stat. 790.
(b)5 U.S.C. 1161(g) (2d sentence).Oct. 11, 1962, Pub. L. 87–793, § 1001(a)(2) “(g) (2d sentence)”, 76 Stat. 863.

In subsection (a), the words “or its designee” are substituted for “or such officers or agents as the Commission may designate”.
For repeal of the Act of Aug. 1, 1947, ch. 433, 61 Stat. 715, as amended, see revision note for section 3104.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2008—Subsec. (a). Pub. L. 110–372, § 2(c)(3)(A), substituted “on the basis of standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director of the Office of Personnel Management” for “or its designee for this purpose”.
Subsec. (c). Pub. L. 110–372, § 2(c)(3)(B), added subsec. (c).
1992—Subsec. (b). Pub. L. 102–378 substituted “section 3104(c)” for “section 3104(a)(7) of this title”.
1978—Subsec. (a). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.

Statutory Notes and Related Subsidiaries
Effective Date of 2008 AmendmentAmendment by Pub. L. 110–372 effective on the first day of the first pay period beginning on or after the 180th day following Oct. 8, 2008, see section 2(d) of Pub. L. 110–372, set out as a note under section 5376 of this title.

Effective Date of 1978 AmendmentAmendment 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.

§ 3326. Appointments of retired members of the armed forces to positions in the Department of Defense(a) For the purpose of this section, “member” and “Secretary concerned” have the meanings given them by section 101 of title 37.

(b) A retired member of the armed forces may be appointed to a position in the civil service in or under the Department of Defense (including a nonappropriated fund instrumentality under the jurisdiction of the armed forces) during the period of 180 days immediately after his retirement only if—(1) the proposed appointment is authorized by the Secretary concerned or his designee for the purpose, and, if the position is in the competitive service, after approval by the Office of Personnel Management; or

(2) the minimum rate of basic pay for the position has been increased under section 5305 of this title.

(c) A request by appropriate authority for the authorization, or the authorization and approval, as the case may be, required by subsection (b)(1) of this section shall be accompanied by a statement which shows the actions taken to assure that—(1) full consideration, in accordance with placement and promotion procedures of the department concerned, was given to eligible career employees;

(2) when selection is by other than certification from an established civil service register, the vacancy has been publicized to give interested candidates an opportunity to apply;

(3) qualification requirements for the position have not been written in a manner designed to give advantage to the retired member; and

(4) the position has not been held open pending the retirement of the retired member.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 423; Pub. L. 96–54, § 2(a)(14), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(3)(A)], Nov. 5, 1990, 104 Stat. 1427, 1439; Pub. L. 114–328, div. A, title XI, § 1111, Dec. 23, 2016, 130 Stat. 2450.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 3101 (as applicable to 5 U.S.C. 3103).Aug. 19, 1964, Pub. L. 88–448, § 101 (as applicable to § 204), 78 Stat. 484.
(b), (c)5 U.S.C. 3103.Aug. 19, 1964, Pub. L. 88–448, § 204, 78 Stat. 487.

In subsection (a), the definition of “armed forces” is omitted as unnecessary in view of the definition in section 2101.
In subsection (b), the words “position in the civil service” are substituted for “civilian office” in view of the definition of “civil service” in section 2101. The words “(including a nonappropriated fund instrumentality under the jurisdiction of the armed forces)” are added on authority of former section 3101(3).
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments2016—Subsec. (b)(3). Pub. L. 114–328 struck out par. (3) which read as follows: “a state of national emergency exists.”
1990—Subsec. (b)(2). Pub. L. 101–509 substituted “5305” for “5303”.
1979—Subsec. (b)(1). Pub. L. 96–54 substituted “Office of Personnel Management” for “Civil Service Commission”.

Statutory Notes and Related Subsidiaries
Suspension of SectionPub. L. 101–510, div. A, title XII, § 1206(f), Nov. 5, 1990, 104 Stat. 1661, provided that: “Section 3326 of title 5, United States Code, shall not be in effect for the period beginning on the date of the enactment of this Act [Nov. 5, 1990] and ending two years after such date.”

Effective Date of 1990 AmendmentAmendment 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 1979 AmendmentAmendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

§ 3327. Civil service employment information(a) The Office of Personnel Management shall provide that information concerning opportunities to participate in competitive examinations conducted by, or under authority delegated by, the Office of Personnel Management shall be made available to the employment offices of the United States Employment Service.

(b) Subject to such regulations as the Office may issue, each agency shall promptly notify the Office and the employment offices of the United States Employment Service of—(1) each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which the agency seeks applications from persons outside the Federal service, and

(2) the period during which applications will be accepted.

As used in this subsection, “agency” means an agency as defined in section 5102(a)(1) of this title other than an agency all the positions in which are excepted by statute from the competitive service.

(Added Pub. L. 95–454, title III, § 309(a), Oct. 13, 1978, 92 Stat. 1151.)

Editorial Notes
Prior ProvisionsA prior section 3327, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424, which prescribed standards for determination of qualifications of postmasters, including experience in postal field service, seniority, length of service, level of difficulty and responsibility of work, attendance, awards and commendations, and performance rating, was repealed by Pub. L. 91–375, § 6(c)(7)(A), Aug. 12, 1970, 84 Stat. 776. See section 1001 of Title 39, Postal Service.

Statutory Notes and Related Subsidiaries
Effective DateSection effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.

§ 3328. Selective Service registration(a) An individual—(1) who was born after December 31, 1959, and is or was required to register under section 3 of the Military Selective Service Act (50 U.S.C. App. 453); 11 See References in Text note below. and

(2) who is not so registered or knowingly and willfully did not so register before the requirement terminated or became inapplicable to the individual,

shall be ineligible for appointment to a position in an Executive agency.

(b) The Office of Personnel Management, in consultation with the Director of the Selective Service System, shall prescribe regulations to carry out this section. Such regulations shall include provisions prescribing procedures for the adjudication of determinations of whether a failure to register was knowing and willful. Such procedures shall require that such a determination may not be made if the individual concerned shows by a preponderance of the evidence that the failure to register was neither knowing nor willful. Such procedures may provide that determinations of eligibility under the requirements of this section shall be adjudicated by the Executive agency making the appointment for which the eligibility is determined.

(Added Pub. L. 99–145, title XVI, § 1622(a)(1), Nov. 8, 1985, 99 Stat. 777; amended Pub. L. 100–180, div. A, title XII, § 1249, Dec. 4, 1987, 101 Stat. 1167.)

Editorial Notes

References in TextSection 3 of the Military Selective Service Act, referred to in subsec. (a)(1), was classified to section 453 of the former Appendix to Title 50, War and National Defense, prior to editorial reclassification and renumbering as section 3802 of Title 50.

Amendments1987—Subsec. (b). Pub. L. 100–180 struck out “within the Office” after “for the adjudication” in second sentence and inserted at end “Such procedures may provide that determinations of eligibility under the requirements of this section shall be adjudicated by the Executive agency making the appointment for which the eligibility is determined.”

§ 3329. Appointments of military reserve technicians to positions in the competitive service(a) For the purpose of this section, the term “military reserve technician” has the meaning given the term “military technician (dual status)” by section 8401(30).

(b) The Secretary of Defense shall take such steps as may be necessary to ensure that, except as provided in subsection (d), any military reserve technician who is involuntarily separated from technician service, after completing at least 15 years of such service and 20 years of service creditable under section 12732 of title 10, by reason of ceasing to satisfy the condition described in section 8401(30)(B) 11 See References in Text note below. shall, if appropriate written application is submitted within 1 year after the date of separation, be provided placement consideration in a position described in subsection (c) through a priority placement program of the Department of Defense.

(c)(1) The position for which placement consideration shall be provided to a former military technician under subsection (b) shall be a position—(A) in either the competitive service or the excepted service;

(B) within the Department of Defense; and

(C) in which the person is qualified to serve, taking into consideration whether the employee in that position is required to be a member of a reserve component of the armed forces as a condition of employment.

(2) To the maximum extent practicable, the position shall also be in a pay grade or other pay classification sufficient to ensure that the rate of basic pay of the former military technician, upon appointment to the position, is not less than the rate of basic pay last received by the former military technician for technician service before separation.

(d) This section shall not apply in the case of—(1) an involuntary separation for cause on charges of misconduct or delinquency; or

(2) a technician who, as of the date of application under this section, is eligible for immediate (including for disability) or early retirement under subchapter III of chapter 83 or under chapter 84.

(e) The Secretary of Defense shall, in consultation with the Director of the Office of Personnel Management, prescribe such regulations as may be necessary to carry out this section.

(Added Pub. L. 102–484, div. A, title V, § 544(a), Oct. 23, 1992, 106 Stat. 2415; amended Pub. L. 104–106, div. A, title X, § 1037(a), Feb. 10, 1996, 110 Stat. 431; Pub. L. 105–85, div. A, title XI, § 1103, Nov. 18, 1997, 111 Stat. 1923; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–293.)

Editorial Notes

References in TextSection 8401(30) of this title, referred to in subsecs. (a) and (b), was amended generally by Pub. L. 106–65, div. A, title V, § 522(c)(2), Oct. 5, 1999, 113 Stat. 597, and, as so amended, no longer contains a subpar. (B).

Codification
Another section 3329 was renumbered section 3330 of this title.

Amendments2000—Subsec. (a). Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(1)(A)], substituted “the term ‘military technician (dual status)’ ” for “such term”.
Subsec. (b). Pub. L. 106–398, § 1 [[div. A], title X, § 1087(f)(1)(B)], substituted “section 12732 of title 10” for “section 1332 of title 10”.
1997—Subsec. (b). Pub. L. 105–85 struck out “a position described in subsection (c) not later than 6 months after the date of the application” after “program of the Department of Defense”.
1996—Subsec. (b). Pub. L. 104–106, § 1037(a)(1), substituted “be provided placement consideration in a position described in subsection (c) through a priority placement program of the Department of Defense” for “be offered”.
Subsec. (c). Pub. L. 104–106, § 1037(a)(2), added subsec. (c) and struck out former subsec. (c) which read as follows: “The position to be offered shall be a position—
“(1) in the competitive service;
“(2) within the Department of Defense;
“(3) for which the individual is qualified; and
“(4) the rate of basic pay for which is not less than the rate last received for technician service before separation.”

§ 3330. Government-wide list of vacant positions(a) For the purpose of this section, the term “agency” means an Executive agency, excluding the Government Accountability Office and any agency (or unit thereof) whose principal function is the conduct of foreign intelligence or counterintelligence activities, as determined by the President.

(b) The Office of Personnel Management shall establish and keep current a comprehensive list of all announcements of vacant positions in the competitive service within each agency that are to be filled by appointment for more than one year and for which applications are being (or will soon be) accepted from outside the agency’s work force.

(c) Included for any position listed shall be—(1) a brief description of the position, including its title, tenure, location, and rate of pay;

(2) application procedures, including the period within which applications may be submitted and procedures for obtaining additional information; and

(3) any other information which the Office considers appropriate.

(d) The list shall be available to members of the public.

(e) The Office shall prescribe such regulations as may be necessary to carry out this section. Any requirement under this section that agencies notify the Office as to the availability of any vacant positions shall be designed so as to avoid any duplication of information otherwise required to be furnished under section 3327 of this title or any other provision of law.

(f) The Office may, to the extent it determines appropriate, charge such fees to agencies for services provided under this section and for related Federal employment information. The Office shall retain such fees to pay the costs of providing such services and information.

(Added Pub. L. 102–484, div. D, title XLIV, § 4431(a), Oct. 23, 1992, 106 Stat. 2719, § 3329; renumbered § 3330 and amended Pub. L. 104–52, title IV, § 4(1), Nov. 19, 1995, 109 Stat. 490; Pub. L. 104–106, div. A, title X, § 1037(b)(1), Feb. 10, 1996, 110 Stat. 432; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes
Amendments2004—Subsec. (a). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.
1996—Pub. L. 104–106, which directed renumbering of the section 3329 of this title that was added by Pub. L. 102–484, § 4431, as section 3330 of this title, could not be executed because of the intervening renumbering of that section by Pub. L. 104–52, § 4(1)(A). See 1995 Amendment note below.
1995—Pub. L. 104–52, § 4(1)(A), renumbered section 3329 of this title, relating to government-wide list of vacant positions, as this section.
Subsec. (f). Pub. L. 104–52, § 4(1)(B), added subsec. (f).

§ 3330a. Preference eligibles; administrative redress(a)(1)(A) A preference eligible who alleges that an agency has violated such individual’s rights under any statute or regulation relating to veterans’ preference may file a complaint with the Secretary of Labor.

(B) A veteran described in section 3304(f)(1) who alleges that an agency has violated such section with respect to such veteran may file a complaint with the Secretary of Labor.

(2)(A) A complaint under this subsection must be filed within 60 days after the date of the alleged violation.

(B) Such complaint shall be in writing, be in such form as the Secretary may prescribe, specify the agency against which the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.

(3) The Secretary shall, upon request, provide technical assistance to a potential complainant with respect to a complaint under this subsection.

(b)(1) The Secretary of Labor shall investigate each complaint under subsection (a).

(2) In carrying out any investigation under this subsection, the Secretary’s duly authorized representatives shall, at all reasonable times, have reasonable access to, for purposes of examination, and the right to copy and receive, any documents of any person or agency that the Secretary considers relevant to the investigation.

(3) In carrying out any investigation under this subsection, the Secretary may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In case of disobedience of the subpoena or contumacy and on request of the Secretary, the Attorney General may apply to any district court of the United States in whose jurisdiction such disobedience or contumacy occurs for an order enforcing the subpoena.

(4) Upon application, the district courts of the United States shall have jurisdiction to issue writs commanding any person or agency to comply with the subpoena of the Secretary or to comply with any order of the Secretary made pursuant to a lawful investigation under this subsection and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order of the Secretary as a contempt of court.

(c)(1)(A) If the Secretary of Labor determines as a result of an investigation under subsection (b) that the action alleged in a complaint under subsection (a) occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the agency specified in the complaint complies with applicable provisions of statute or regulation relating to veterans’ preference.

(B) The Secretary of Labor shall make determinations referred to in subparagraph (A) based on a preponderance of the evidence.

(2) If the efforts of the Secretary under subsection (b) with respect to a complaint under subsection (a) do not result in the resolution of the complaint, the Secretary shall notify the person who submitted the complaint, in writing, of the results of the Secretary’s investigation under subsection (b).

(d)(1) If the Secretary of Labor is unable to resolve a complaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought—(A) before the 61st day after the date on which the complaint is filed; or

(B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2).

(2) An appeal under this subsection may not be brought unless—(A) the complainant first provides written notification to the Secretary of such complainant’s intention to bring such appeal; and

(B) appropriate evidence of compliance with subparagraph (A) is included (in such form and manner as the Merit Systems Protection Board may prescribe) with the notice of appeal under this subsection.

(3) Upon receiving notification under paragraph (2)(A), the Secretary shall not continue to investigate or further attempt to resolve the complaint to which the notification relates.

(e)(1) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board from any action which is appealable to the Board under any other law, rule, or regulation, in lieu of administrative redress under this section.

(2) A preference eligible may not pursue redress for an alleged violation described in subsection (a) under this section at the same time the preference eligible pursues redress for such violation under any other law, rule, or regulation.

(Added Pub. L. 105–339, § 3(a), Oct. 31, 1998, 112 Stat. 3182; amended Pub. L. 108–454, title VIII, § 804(a), Dec. 10, 2004, 118 Stat. 3626.)

Editorial Notes
Amendments2004—Subsec. (a)(1). Pub. L. 108–454 designated existing provisions as subpar. (A) and added subpar. (B).

§ 3330b. Preference eligibles; judicial redress(a) In lieu of continuing the administrative redress procedure provided under section 3330a(d), a preference eligible, or a veteran described by section 3330a(a)(1)(B) with respect to a violation described by such section, may elect, in accordance with this section, to terminate those administrative proceedings and file an action with the appropriate United States district court not later than 60 days after the date of the election.

(b) An election under this section may not be made—(1) before the 121st day after the date on which the appeal is filed with the Merit Systems Protection Board under section 3330a(d); or

(2) after the Merit Systems Protection Board has issued a judicially reviewable decision on the merits of the appeal.

(c) An election under this section shall be made, in writing, in such form and manner as the Merit Systems Protection Board shall by regulation prescribe. The election shall be effective as of the date on which it is received, and the administrative proceeding to which it relates shall terminate immediately upon the receipt of such election.

(Added Pub. L. 105–339, § 3(a), Oct. 31, 1998, 112 Stat. 3184; amended Pub. L. 108–454, title VIII, § 804(b), Dec. 10, 2004, 118 Stat. 3626.)

Editorial Notes
Amendments2004—Subsec. (a). Pub. L. 108–454, which directed insertion of “, or a veteran described by section 3330a(a)(1)(B) with respect to a violation described by such section,” after “a preference eligible” in subsec. (a) of section 3330b, without specifying the Code title to be amended, was executed by making the insertion in subsec. (a) of this section, to reflect the probable intent of Congress.

§ 3330c. Preference eligibles; remedy(a) If the Merit Systems Protection Board (in a proceeding under section 3330a) or a court (in a proceeding under section 3330b) determines that an agency has violated a right described in section 3330a, the Board or court (as the case may be) shall order the agency to comply with such provisions and award compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. If the Board or court determines that such violation was willful, it shall award an amount equal to backpay as liquidated damages.

(b) A preference eligible who prevails in an action under section 3330a or 3330b shall be awarded reasonable attorney fees, expert witness fees, and other litigation expenses.

(Added Pub. L. 105–339, § 3(a), Oct. 31, 1998, 112 Stat. 3184.)

§ 3330d. Appointment of military spouses(a) Definitions.—In this section:(1) The term “active duty”—(A) has the meaning given that term in section 101(d)(1) of title 10;

(B) includes full-time National Guard duty (as defined in section 101(d)(5) of title 10); and

(C) for a member of a reserve component (as described in section 10101 of title 10), does not include training duties or attendance at a service school.

(2) The term “agency”—(A) has the meaning given the term “Executive agency” in section 105 of this title; and

(B) does not include the Government Accountability Office.

(3) The term “spouse of a disabled or deceased member of the Armed Forces” means an individual—(A) who is married to a member of the Armed Forces who—(i) is retired, released, or discharged from the Armed Forces; and

(ii) on the date on which the member retires, is released, or is discharged, has a disability rating of 100 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs; or

(B) who—(i) was married to a member of the Armed Forces on the date on which the member dies while on active duty in the Armed Forces; and

(ii) has not remarried.

(b) Appointment Authority.—The head of an agency may appoint noncompetitively—(1) a spouse of a member of the Armed Forces on active duty; or

(2) a spouse of a disabled or deceased member of the Armed Forces.

(c) Special Rules Regarding Spouse of a Disabled or Deceased Member of the Armed Forces.—(1) In general.—An appointment of an eligible spouse as described in subparagraph (A) or (B) of subsection (a)(3) is not restricted to a geographical area.

(2) Single permanent appointment.—A spouse of a disabled or deceased member of the Armed Forces may not receive more than 1 permanent appointment under this section.

(Added Pub. L. 112–239, div. A, title V, § 566(a), Jan. 2, 2013, 126 Stat. 1749; amended Pub. L. 114–328, div. A, title XI, § 1131, Dec. 23, 2016, 130 Stat. 2457; Pub. L. 115–232, div. A, title V, § 573(a), (c), Aug. 13, 2018, 132 Stat. 1779.)

Amendment of SectionFor expiration of amendment by Pub. L. 115–232 and revival of section, see Termination Date of 2018 Amendment note below.

Editorial Notes
Amendments2018—Pub. L. 115–232, § 573(c), (e), temporarily amended section catchline generally, substituting “Appointment of military spouses” for “Appointment of certain military spouses”. See Termination Date of 2018 Amendment note below.
Subsec. (a)(3) to (6). Pub. L. 115–232, § 573(a)(1), (e), temporarily redesignated par. (6) as (3) and temporarily struck out former pars. (3) to (5) which defined geographic area of the permanent duty station, permanent change of station, and relocating spouse of a member of the Armed Forces, respectively. See Termination Date of 2018 Amendment note below.
Subsecs. (b) to (d). Pub. L. 115–232, § 573(a)(2)–(4), (e), temporarily added subsec. (b) relating to appointment authority, temporarily redesignated subsec. (d) as (c) and substituted “subsection (a)(3)” for “subsection (a)(6)” in par. (1), and temporarily struck out former subsecs. (b) and (c) relating to appointment authority and special rules regarding relocating spouse, respectively. See Termination Date of 2018 Amendment note below.
2016—Subsec. (c)(3). Pub. L. 114–328 added par. (3).

Statutory Notes and Related Subsidiaries
Termination Date of 2018 AmendmentPub. L. 115–232, div. A, title V, § 573(e), Aug. 13, 2018, 132 Stat. 1779, provided that:
“Effective on the date that is 5 years after the date of the enactment of this Act [Aug. 13, 2018]—
“(1) the authority provided by this section [amending this section and enacting provisions set out as a note below], and the amendments made by this section [amending this section], shall expire; and

“(2) the provisions of section 3330d of title 5, United States Code, amended or repealed by such section are restored or revived as if such section had not been enacted.”

RegulationsPub. L. 112–239, div. A, title V, § 566(b), Jan. 2, 2013, 126 Stat. 1751, provided that: “Not later than 180 after the date of the enactment of this Act [Jan. 2, 2013], the Director of the Office of Personnel Management shall amend section 315.612 of title 5, Code of Federal Regulations (relating to noncompetitive appointment of certain military spouses), in accordance with the amendment made by subsection (a) [enacting this section] and promulgate or amend any other regulations necessary to carry out the amendment made by subsection (a).”

OPM Limitation and ReportsPub. L. 115–232, div. A, title V, § 573(d), Aug. 13, 2018, 132 Stat. 1779, provided that:
“(1) Relocating spouses.—With respect to the noncompetitive appointment of a relocating spouse of a member of the Armed Forces under subsection (b)(1) of section 3330d of title 5, United States Code, as amended by subsection (a), the Director of the Office of Personnel Management—“(A) shall monitor the number of such appointments;

“(B) shall require the head of each agency with authority to make such appointments under such section to submit an annual report to the Director on such appointments, including information on the number of individuals so appointed, the types of positions filled, and the effectiveness of the authority for such appointments; and

“(C) not later than 18 months after the date of the enactment of this Act [Aug. 13, 2018], shall submit a report to the Committee on Oversight and Government Reform [now Committee on Oversight and Reform] of the House of Representatives and the Committee on Homeland Security and Government Affairs of the Senate on the use and effectiveness of such authority.

“(2) Non-relocating spouses.—With respect to the noncompetitive appointment of a spouse of a member of the Armed Forces other than a relocating spouse described in paragraph (1), the Director of the Office of Personnel Management—“(A) shall treat the spouse as a relocating spouse under paragraph (1); and

“(B) may limit the number of such appointments.”

Executive Documents

Ex. Ord. No. 13832. Enhancing Noncompetitive Civil Service Appointments of Military Spouses
Ex. Ord. No. 13832, May 9, 2018, 83 F.R. 22343, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1784 of title 10, United States Code, and sections 3301 and 3302 of title 5, United States Code, it is hereby ordered as follows:
Section 1. Definitions. (a) “Military spouse” means:
(i) the husband or wife of a member of the Armed Forces who, as determined by the Secretary of Defense, is performing active duty pursuant to orders that authorize a permanent change of station move, if such husband or wife relocates to the member’s new permanent duty station;
(ii) the husband or wife of a totally disabled retired or separated member of the Armed Forces; or
(iii) the unremarried widow or widower of a member of the Armed Forces killed while performing active duty.
(b) “Member of the Armed Forces” has the meaning set forth in 5 CFR 315.612(b)(4).
(c) “Agency” has the meaning set forth in section 3330d of title 5, United States Code.
(d) “Military spouse hiring authority” shall refer to the appointment authority set forth in 5 U.S.C. 3330d and 5 CFR 315.612.
Sec. 2. Policy. (a) Military spouses make critical contributions to the personal and financial success of our military families. Military service of spouses, however, often impairs the spouse’s ability to obtain and maintain employment, and to achieve career goals. Multiple and frequent relocations make it challenging for military spouses to maintain the home front, to comply with licensure and other job requirements, and to obtain adequate childcare.
(b) It shall be the policy of the United States to enhance employment support for military spouses. This policy will assist agencies in tapping into a pool of talented individuals and will promote the national interest of the United States and the well-being of our military families. It will also help retain members of the Armed Forces, enhance military readiness, recognize the tremendous sacrifices and service of the members of our Armed Forces and their families, and decrease the burden of regulations that can inhibit the entry of military spouses into the workforce.
Sec. 3. Promoting Hiring for Military Spouses. (a) To the greatest extent possible consistent with hiring needs, agencies shall, when filling vacant positions in the competitive service, indicate in job opportunity announcements (JOAs) that they will consider candidates under the military spouse hiring authority in addition to candidates identified on the competitive or merit promotion certificate for the position as well as those candidates identified through any other hiring authority a JOA indicates an agency will consider.
(b) Agencies shall actively advertise and promote the military spouse hiring authority and actively solicit applications from military spouses for posted and other agency positions (including through USAJOBS).
(c) The Office of Personnel Management (OPM) shall consider whether changes to 5 CFR 315.612 are appropriate to account for cases in which there are no agency job openings within the geographic area of the permanent duty station of the member of the Armed Forces for which the member’s spouse is qualified.
(d) OPM shall also periodically circulate notifications concerning the military spouse hiring authority and its eligibility requirements to each agency’s Chief Human Capital Officer or the agency’s equivalent officer, for such officer to transmit to appropriate offices and to notify eligible populations. Within 180 days of the date of this order [May 9, 2018], OPM shall post to its website, and circulate to each agency’s Chief Human Capital Officer or the agency’s equivalent officer, information about the military spouse hiring authority. That posting shall include a discussion of section 1131 of the National Defense Authorization Act for Fiscal Year 2017, Public Law 114–328, which amended 5 U.S.C. 3330d(c) to eliminate the time limitation on noncompetitive appointment for a relocating spouse of a member of the Armed Forces.
(e) Within 180 days of the date of this order, OPM shall educate agencies concerning the military spouse hiring authority and ensure human resources personnel and hiring managers are briefed on techniques for its effective use. Concurrently, within 180 days of the date of this order, OPM shall provide any additional clarifying guidance it deems appropriate to agencies on provisions of the Telework Enhancement Act of 2010, Public Law 111–292 [enacting chapter 65 and section 5711 of this title and provisions set out as a note under section 6501 of this title and amending provisions set out as a note and provisions listed in a table under section 6120 of this title], and agencies shall ensure that human resources personnel and hiring managers are briefed as needed on techniques for the effective use of telework.
(f) Beginning in Fiscal Year 2019, agencies shall report annually (by December 31 of each year) to OPM and the Department of Labor the number of positions made available under the military spouse hiring authority, the number of applications submitted under the military spouse hiring authority, and the number of military spouses appointed under the military spouse hiring authority during the preceding fiscal year. Such report shall also describe actions taken during that period to advertise the military spouse hiring authority, as well as any other actions taken to promote the hiring of military spouses.
Sec. 4. Administrative Provisions. (a) The Director of OPM shall administer this order and shall, in coordination with the Secretary of Labor, through the Assistant to the President for Domestic Policy, provide an annual report to the President regarding the implementation of this order and any recommendations for improving the hiring of military spouses, including steps to enhance the effectiveness of the military spouse hiring authority.
(b) The annual report described in subsection (a) of this section shall also include recommendations, developed in consultation with the Secretary of Defense and the Secretary of Homeland Security, for actions that could be taken to improve license portability and remove barriers to the employment of military spouses.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.

§ 3330e. Review of official personnel file of former Federal employees before rehiring(a) If a former Government employee is a candidate for a position within the competitive service or the excepted service, prior to making any determination with respect to the appointment or reinstatement of such employee to such position, the appointing authority shall review and consider merit-based information relating to such employee’s former period or periods of service such as official personnel actions, employee performance ratings, and disciplinary actions, if any, in such employee’s official personnel record file.

(b) In subsection (a), the term “former Government employee” means an individual whose most recent position with the Government prior to becoming a candidate as described under subsection (a) was within the competitive service or the excepted service.

(c) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this section. Such regulations may not contain provisions that would increase the time required for agency hiring actions.

(Added Pub. L. 114–328, div. A, title XI, § 1136(a), Dec. 23, 2016, 130 Stat. 2460.)

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 114–328, div. A, title XI, § 1136(b), Dec. 23, 2016, 130 Stat. 2460, provided that: “The amendment made by subsection (a) [enacting this section] shall apply to any former Government employee (as described in section 3330e of title 5, United States Code, as added by such subsection) appointed or reinstated on or after the date that is 180 days after the date of enactment of this Act [Dec. 23, 2016].”

SUBCHAPTER II—OATH OF OFFICE
§ 3331. Oath of office
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 16.R.S. § 1757.May 13, 1884, ch. 46, §§ 2, 3, 23 Stat. 22.

All but the quoted language in R.S. § 1757 is omitted as obsolete since R.S. § 1757 was originally an alternative oath to the oath prescribed in R.S. § 1756 which oath was repealed by the Act of May 13, 1884, ch. 46, § 2, 23 Stat. 22. The words “An individual, except the President, . . . in the civil service or uniformed services” are substituted for “any person . . . either in the civil, military, or naval service, except the President of the United States”. The second sentence of former section 16 is changed to read, “This section does not affect other oaths required by law.”.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3332. Officer affidavit; no consideration paid for appointment
An officer, within 30 days after the effective date of his appointment, shall file with the oath of office required by section 3331 of this title an affidavit that neither he nor anyone acting in his behalf has given, transferred, promised, or paid any consideration for or in the expectation or hope of receiving assistance in securing the appointment.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 21a.Dec. 11, 1926, ch. 4, § 1, 44 Stat. 918.Mar. 2, 1927, ch. 284, 44 Stat. 1346.Sept. 23, 1950, ch. 1010, § 10, 64 Stat. 987.

The section is restated for clarity and conciseness. The term “officer” is coextensive with and substituted for “Each individual appointed hereafter as a civil officer of the United States by the President, by and with the advice and consent of the Senate, or by the President alone, or by a court of law, or by the head of a department” in view of the definition of “officer” in section 2104.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

§ 3333. Employee affidavit; loyalty and striking against the Government(a) Except as provided by subsection (b) of this section, an individual who accepts office or employment in the Government of the United States or in the government of the District of Columbia shall execute an affidavit within 60 days after accepting the office or employment that his acceptance and holding of the office or employment does not or will not violate section 7311 of this title. The affidavit is prima facie evidence that the acceptance and holding of office or employment by the affiant does not or will not violate section 7311 of this title.

(b) An affidavit is not required from an individual employed by the Government of the United States or the government of the District of Columbia for less than 60 days for sudden emergency work involving the loss of human life or the destruction of property. This subsection does not relieve an individual from liability for violation of section 7311 of this title.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 118q.Aug. 9, 1955, ch. 690, § 2, 69 Stat. 624.
 [Uncodified].June 29, 1956, ch. 479, § 3 (as applicable to the Act of Aug. 9, 1955, ch. 690, § 2, 69 Stat. 624), 70 Stat. 453.

The section is restated for clarity and to conform to the style of section 3332.
In subsection (a), the words “after August 9, 1955” are omitted as executed. The words “if the affidavit is executed prior to acceptance of such office or employment” are omitted as unnecessary. The words “From and after July 1, 1956”, appearing in the Act of June 29, 1956, are omitted as executed.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

SUBCHAPTER III—DETAILS, VACANCIES, AND APPOINTMENTS

Editorial Notes
Amendments1998—Pub. L. 105–277, div. C, title I, § 151(c)(2), Oct. 21, 1998, 112 Stat. 2681–616, substituted “DETAILS, VACANCIES, AND APPOINTMENTS” for “DETAILS” as subchapter heading.

Statutory Notes and Related Subsidiaries
Annual Report to Congress on Employees or Members of Armed Services Detailed to Executive Agencies; ExemptionsPub. L. 103–329, title VI, § 619, Sept. 30, 1993, 108 Stat. 2420, which directed each Executive agency detailing personnel submit an annual report to Senate and House Committees on Appropriations on all employees or members of armed services detailed to Executive agencies, listing grade, position, and offices of each person detailed and agency to which each such person was detailed, with exemptions for certain intelligence agencies, terminated, effective May 15, 2000, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 151 of House Document No. 103–7. Similar provisions were contained in the following prior appropriations acts:
Pub. L. 103–123, title VI, § 617, Oct. 28, 1993, 107 Stat. 1263.
Pub. L. 102–393, title VI, § 619, Oct. 6, 1992, 106 Stat. 1769; repealed by Pub. L. 104–66, title III, § 3001(h), Dec. 21, 1995, 109 Stat. 734.
Pub. L. 102–141, title VI, § 619, Oct. 28, 1991, 105 Stat. 871.
Pub. L. 101–509, title VI, § 616, Nov. 5, 1990, 104 Stat. 1474.
Pub. L. 101–136, title VI, § 616, Nov. 3, 1989, 103 Stat. 819.
Pub. L. 100–440, title VI, § 616, Sept. 22, 1988, 102 Stat. 1754.
Pub. L. 100–202, § 101(m) [title VI, § 621], Dec. 22, 1987, 101 Stat. 1329–390, 1329–427.

§ 3341. Details; within Executive or military departments(a) The head of an Executive department or military department may detail employees among the bureaus and offices of his department, except employees who are required by law to be exclusively engaged on some specific work.

(b)(1) Details under subsection (a) of this section may be made only by written order of the head of the department, and may be for not more than 120 days. These details may be renewed by written order of the head of the department, in each particular case, for periods not exceeding 120 days.

(2) The 120-day limitation in paragraph (1) for details and renewals of details does not apply to the Department of Defense in the case of a detail—(A) made in connection with the closure or realignment of a military installation pursuant to a base closure law or an organizational restructuring of the Department as part of a reduction in the size of the armed forces or the civilian workforce of the Department; and

(B) in which the position to which the employee is detailed is eliminated on or before the date of the closure, realignment, or restructuring.

(c) For purposes of this section, the term “base closure law” has the meaning given such term in section 101(a)(17) of title 10.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 424; Pub. L. 104–106, div. A, title X, § 1033(a), Feb. 10, 1996, 110 Stat. 429; Pub. L. 109–163, div. A, title X, § 1056(a)(4), Jan. 6, 2006, 119 Stat. 3439.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 38.R.S. § 166.May 28, 1896, ch. 252, § 3, 29 Stat. 179.

The words “Executive department” are substituted for “department” as the definition of “department” applicable to this section is coextensive with the definition of “Executive department” in section 101.
The words “or military department” are inserted to preserve the application of the source law. 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 law for this section, 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 word “detail” is coextensive with and is substituted for “alter the distribution”. The word “clerks” is omitted as included in “employees”. The words “as he may find it necessary and proper to do” and “from time to time” are omitted as surplusage.
This section was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 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.

Editorial Notes
Amendments2006—Subsec. (c). Pub. L. 109–163 amended subsec. (c) generally. Prior to amendment, subsec. (c) defined the terms “base closure law” and “military installation” for purposes of this section.
1996—Subsec. (b). Pub. L. 104–106 designated existing provisions as par. (1) and added par. (2).
Subsec. (c). Pub. L. 104–106, § 1033(a)(2), added subsec. (c).

Statutory Notes and Related Subsidiaries
Effective Date of 1996 AmendmentPub. L. 104–106, div. A, title X, § 1033(b), Feb. 10, 1996, 110 Stat. 430, provided that: “The amendments made by subsection (a) [amending this section] apply to details made before the date of the enactment of this Act [Feb. 10, 1996] but still in effect on that date and details made on or after that date.”

Transfer of Appropriated Funds; Funding of Detailed EmployeesFor restriction on availability of funds for salaries of employees reassigned on temporary detail basis to another position without independent approval by head of employing department or agency, see section 515(3) of Pub. L. 103–333, set out as a note under section 1301 of Title 31, Money and Finance.

[§ 3342. Repealed. Pub. L. 102–378, § 2(13)(A), Oct. 2, 1992, 106 Stat. 1347]

Section, added Pub. L. 101–416, § 2(a)(1), Oct. 12, 1990, 104 Stat. 902, related to Federal participants in executive exchange programs.

A prior section 3342, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425, which prohibited details of employees from field service to Executive department in District of Columbia except for temporary duty, details specifically provided for by law, or detailing of one employee from Bureau of Customs for duty in District of Columbia, was repealed by Pub. L. 89–762, § 1(a), Nov. 5, 1966, 80 Stat. 1312.

Statutory Notes and Related Subsidiaries
Effective Date of RepealSection repealed effective Oct. 1, 1991, see section 9(b)(3) of Pub. L. 102–378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.

§ 3343. Details; to international organizations(a) For the purpose of this section—(1) “agency”, “employee”, and “international organization” have the meanings given them by section 3581 of this title; and

(2) “detail” means the assignment or loan of an employee to an international organization without a change of position from the agency by which he is employed to an international organization.

(b) The head of an agency may detail, for a period of not more than 5 years, an employee of his agency to an international organization which requests services, except that under special circumstances, where the President determines it to be in the national interest, he may extend the 5-year period for up to an additional 3 years.

(c) An employee detailed under subsection (b) of this section is deemed, for the purpose of preserving his allowances, privileges, rights, seniority, and other benefits, an employee of the agency from which detailed, and he is entitled to pay, allowances, and benefits from funds available to that agency. The authorization and payment of these allowances and other benefits from appropriations available therefor is deemed to comply with section 5536 of this title.

(d) Details may be made under subsection (b) of this section—(1) without reimbursement to the United States by the international organization; or

(2) with agreement by the international organization to reimburse the United States for all or part of the pay, travel expenses, and allowances payable during the detail, and the reimbursement shall be credited to the appropriation, fund, or account used for paying the amounts reimbursed.

(e) An employee detailed under subsection (b) of this section may be paid or reimbursed by an international organization for allowances or expenses incurred in the performance of duties required by the detail, without regard to section 209 of title 18.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 91–175, pt. V, § 502(a), Dec. 30, 1969, 83 Stat. 825.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

(a)5 U.S.C. 2331.Aug. 28, 1958, Pub. L. 85–795, § 2, 72 Stat. 959.
(b)–(e)5 U.S.C. 2332.Aug. 28, 1958, Pub. L. 85–795, § 3, 72 Stat. 959.

In subsection (a)(2), the words “without a change of position from the agency by which he is employed to an international organization” are substituted for “without the employee’s transfer from the Federal agency by which he is employed” to eliminate the necessity of carrying into this section the definition of “transfer” appearing in former section 2331(5).
In subsection (e), the words “section 209 of title 18” are substituted for “section 1914 of title 18” on authority of the Act of Oct. 23, 1962, Pub. L. 87–849, § 2, 76 Stat. 1126.
Other definitions appearing in former section 2331 are omitted from this section as inappropriate but are carried into section 3581.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1969—Subsec. (b). Pub. L. 91–175 substituted “5” for “3” and inserted provision enabling President, regarding an agency employee detailed to an international organization for 5 years, to extend the 5-year period for up to an additional 3 years.

Executive Documents
Details to International OrganizationsFor provisions concerning the providing for details of Federal employees to international organizations and the delegation of Presidential authority, concerning the extension of a detail under this section, to the Secretary of State, see Ex. Ord. No. 11552, Aug. 24, 1970, 35 F.R. 13569, set out as a note under section 3584 of this title.

§ 3344. Details; administrative law judges
An agency as defined by section 551 of this title which occasionally or temporarily is insufficiently staffed with administrative law judges appointed under section 3105 of this title may use administrative law judges selected by the Office of Personnel Management from and with the consent of other agencies.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 95–251, § 2(a)(1), (b)(2), Mar. 27, 1978, 92 Stat. 183; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 1010 (4th sentence).June 11, 1946, ch. 324, § 11 (4th sentence), 60 Stat. 244.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes
Amendments1978—Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission”.
Pub. L. 95–251 substituted references to administrative law judges for references to hearing examiners in section catchline and wherever appearing in text.

Statutory Notes and Related Subsidiaries
Effective Date of 1978 AmendmentAmendment 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.

§ 3345. Acting officer(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.

(b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

(2) Paragraph (1) shall not apply to any person if—(A) such person is serving as the first assistant to the office of an officer described under subsection (a);

(B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and

(C) the Senate has approved the appointment of such person to such office.

(c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.

(2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–611; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

References in TextThe General Schedule, referred to in subsec. (a)(3)(B), is set out under section 5332 of this title.

Prior ProvisionsA prior section 3345, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 100–398, § 7(a)(1), (2), Aug. 17, 1988, 102 Stat. 988, provided for details to office of head of Executive agency or military department, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998.

Amendments2004—Subsec. (a). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in introductory provisions.

Statutory Notes and Related Subsidiaries
Effective DatePub. L. 105–277, div. C, title I, § 151(d), Oct. 21, 1998, 112 Stat. 2681–616, provided that:
“(1) Effective date.—Subject to paragraph (2), this section [enacting this section and sections 3346 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3301 of this title] and the amendments made by this section shall take effect 30 days after the date of enactment of this section [Oct. 21, 1998].

“(2) Application.—“(A) In general.—This section shall apply to any office that becomes vacant after the effective date of this section.

“(B) Immediate application of time limitation.—Notwithstanding subparagraph (A), for any office vacant on the effective date of this section, the time limitations under section 3346 of title 5, United States Code (as amended by this section) shall apply to such office. Such time limitations shall apply as though such office first became vacant on the effective date of this section.

“(C) Certain nominations.—If the President submits to the Senate the nomination of any person after the effective date of this section for an office for which such person had been nominated before such date, the next nomination of such person after such date shall be considered a first nomination of such person to that office for purposes of sections 3345 through 3349 and section 3349d of title 5, United States Code (as amended by this section).”

Executive Documents

Ex. Ord. No. 13472. Executive Branch Responsibilities With Respect To Orders of Succession
Ex. Ord. No. 13472, Sept. 11, 2008, 73 F.R. 53353, 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. Policy. It is the policy of the Federal Government to ensure that each executive branch agency can perform its essential functions and remain an effectively functioning part of the Federal Government under all conditions. Accordingly, each agency shall take all appropriate actions to establish, maintain, and, as necessary, revise an order of succession, or to propose presidential action to establish or revise an order of succession.
Sec. 2. Definitions. As used in this order:
(a) “agency” means:
(i) an executive agency as defined in section 105 of title 5, United States Code, other than the Government Accountability Office; and
(ii) the United States Postal Service and the Postal Regulatory Commission; and
(b) “order of succession” means a list of officials by position who shall act as and perform the functions and duties of the office of the head of the agency in the event that the office-holder has died, resigned, or otherwise become unable to perform the functions and duties of the office. “Order of succession” does not include any order, rule, memorandum, or other document delegating or partially delegating the authority of an office.
Sec. 3. Orders of Succession Requiring Presidential Action.
(a) Each agency for which presidential action is required to establish an order of succession shall draft a proposed order of succession if no such order exists and, not later than 30 days from the date of this order, send such proposed draft order to the Counsel to the President for review and comment.
(b) Each agency described in subsection 3(a) of this order shall send any proposed updates or revisions to the agency’s order of succession to the Counsel to the President for review and comment.
(c) Upon completion of the requirements set forth by subsections (a) or (b) of this section with respect to a proposed order, the agency shall submit the proposed order to the Office of Management and Budget in accordance with Executive Order 11030, as amended.
Sec. 4. Orders of Succession Not Requiring Presidential Action. (a) Each agency for which presidential action is not required to establish an order of succession because of the agency’s existing legal authority shall establish and maintain such order in accordance with applicable law and any applicable guidance issued by the President or the Secretary of Homeland Security, including the laws and guidance regarding continuity plans and programs for the executive branch.
(b) Each agency described in subsection 4(a) of this order shall update and revise its order of succession as necessary. Before implementing any revisions to its order of succession, such agency shall send the proposed revisions to the Counsel to the President for review and comment.
(c) Not later than 30 days from the date of this order, and not later than 7 days from the issuance date of any subsequent final revision to an existing order of succession, each agency described in subsection 4(a) of this order shall provide a copy of its order of succession to the Counsel to the President, the Assistant to the President for Homeland Security and Counterterrorism, and the Director of the Office of Management and Budget.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(b) Nothing in this order shall be construed to delegate the President’s authority under the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., to designate individuals to perform the functions and duties of a vacant office temporarily in an acting capacity.
(c) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.

George W. Bush.

EXECUTIVE DOCUMENTS DESIGNATING ORDERS OF SUCCESSION
Provisions relating to the exercise of Presidential authorities to designate an order of succession for executive agencies and offices are contained in the following:

Council on Environmental Quality
Memorandum of President of the United States, Sept. 6, 2019, 84 F.R. 48227, as corrected Sept. 16, 2019, 84 F.R. 48549.
Memorandum of President of the United States, Jan. 13, 2017, 82 F.R. 7627, revoked by Memorandum of President of the United States, § 3, Sept. 6, 2019, 84 F.R. 48227.
Memorandum of President of the United States, Mar. 13, 2015, 80 F.R. 14289, revoked by Memorandum of President of the United States, § 3, Jan. 13, 2017, 82 F.R. 7627.
Memorandum of President of the United States, Sept. 18, 2008, 73 F.R. 54487, revoked by Memorandum of President of the United States, § 3, Mar. 13, 2015, 80 F.R. 14289.

Department of Agriculture
Ex. Ord. No. 13612, May 21, 2012, 77 F.R. 31153.
Ex. Ord. No. 13542, May 13, 2010, 75 F.R. 27921, revoked by Ex. Ord. No. 13612, § 3, May 21, 2012, 77 F.R. 31154.
Ex. Ord. No. 13241, Dec. 18, 2001, 66 F.R. 66258, as amended by Ex. Ord. No. 13261, § 4(a), Mar. 19, 2002, 67 F.R. 13243; Ex. Ord. No. 13484, §§ 1, 2, Jan. 9, 2009, 74 F.R. 2285, revoked by Ex. Ord. No. 13542, § 3, May 13, 2010, 75 F.R. 27922.
Ex. Ord. No. 11957, Jan. 13, 1977, 42 F.R. 3295, revoked by Ex. Ord. No. 13241, § 4, Dec. 18, 2001, 66 F.R. 66259.

Department of Commerce
Ex. Ord. No. 13613, May 21, 2012, 77 F.R. 31155.
Ex. Ord. No. 13242, Dec. 18, 2001, 66 F.R. 66260, as amended by Ex. Ord. No. 13261, § 4(b), Mar. 19, 2002, 67 F.R. 13243, revoked by Ex. Ord. No. 13613, § 3, May 21, 2012, 77 F.R. 31155.
Ex. Ord. No. 11880, Oct. 2, 1975, 40 F.R. 46089, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12998, Apr. 5, 1996, 61 F.R. 15873, revoked by Ex. Ord. No. 13242, § 4, Dec. 18, 2001, 66 F.R. 66261.

Department of Defense
Ex. Ord. No. 13963, Dec. 10, 2020, 85 F.R. 81331.
Ex. Ord. No. 13533, Mar. 1, 2010, 75 F.R. 10163, revoked by Ex. Ord. No. 13963, § 3, Dec. 10, 2020, 85 F.R. 81332.
Ex. Ord. No. 13394, Dec. 22, 2005, 70 F.R. 76665, revoked by Ex. Ord. No. 13533, § 3, Mar. 1, 2010, 75 F.R. 10164.
Ex. Ord. No. 13000, Apr. 24, 1996, 61 F.R. 18483, revoked by Ex. Ord. No. 13394, § 5, Dec. 22, 2005, 70 F.R. 76666.

Department of Health and Human Services
Ex. Ord. No. 13461, Feb. 15, 2008, 73 F.R. 9437.
Ex. Ord. No. 13250, Dec. 28, 2001, 67 F.R. 1597, as amended by Ex. Ord. No. 13261, § 4(h), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13461, § 4, Feb. 15, 2008, 73 F.R. 9438.

Department of Homeland Security
For order of succession within the Department of Homeland Security, see Ex. Ord. No. 13286, § 88, Feb. 28, 2003, 68 F.R. 10632, as amended, set out as a note under section 111 of Title 6, Domestic Security.

Department of Housing and Urban Development
Ex. Ord. No. 13243, Dec. 18, 2001, 66 F.R. 66262, as amended by Ex. Ord. No. 13261, § 4(c), Mar. 19, 2002, 67 F.R. 13244.
Ex. Ord. No. 11274, Mar. 30, 1966, 31 F.R. 5243, as amended by Pub. L. 101–509, title V, § 529 [title I, § 112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, revoked by Ex. Ord. No. 13243, § 4, Dec. 18, 2001, 66 F.R. 66263.

Department of Justice
Ex. Ord. No. 13787, Mar. 31, 2017, 82 F.R. 16723.
Ex. Ord. No. 13775, Feb. 9, 2017, 82 F.R. 10697, revoked by Ex. Ord. No. 13787, § 3, Mar. 31, 2017, 82 F.R. 16723.
Ex. Ord. No. 13762, Jan. 13, 2017, 82 F.R. 7619, revoked by Ex. Ord. No. 13775, § 3, Feb. 9, 2017, 82 F.R. 10697.
Ex. Ord. No. 13557, Nov. 4, 2010, 75 F.R. 68679, revoked by Ex. Ord. No. 13762, § 3 Jan. 13, 2017, 82 F.R. 7619.
Ex. Ord. No. 13481, Dec. 9, 2008, 73 F.R. 75531, revoked by Ex. Ord. No. 13557, § 3, Nov. 4, 2010, 75 F.R. 68679.
Memorandum of President of the United States, Dec. 8, 2006, 71 F.R. 74753, superseded by Ex. Ord. No. 13481, § 3, Dec. 9, 2008, 73 F.R. 75531.

Department of Labor
Ex. Ord. No. 13755, Dec. 23, 2016, 81 F.R. 96329.
Ex. Ord. No. 13245, Dec. 18, 2001, 66 F.R. 66268, as amended by Ex. Ord. No. 13261, § 4(e), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13755, § 3, Dec. 23, 2016, 81 F.R. 96329.
Ex. Ord. No. 10513, Jan. 19, 1954, 19 F.R. 369, revoked by Ex. Ord. No. 13245, § 4, Dec. 8, 2001, 66 F.R. 66269.

Department of State
Ex. Ord. No. 13251, Dec. 28, 2001, 67 F.R. 1599, as amended by Ex. Ord. No. 13261, § 4(i), Mar. 19, 2002, 67 F.R. 13244.
Ex. Ord. No. 12343, Jan. 27, 1982, 47 F.R. 4225, revoked by Ex. Ord. No. 13251, § 4, Dec. 28, 2001, 67 F.R. 1599.

Department of the Air Force
Ex. Ord. No. 12909, Apr. 22, 1994, 59 F.R. 21909.

Department of the Army
Ex. Ord. No. 12908, Apr. 22, 1994, 59 F.R. 21907.

Department of the Interior
Ex. Ord. No. 13915, Apr. 14, 2020, 85 F.R. 21733.
Ex. Ord. No. 13244, Dec. 18, 2001, 66 F.R. 66267, as amended by Ex. Ord. No. 13261, § 4(d), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13915, § 4, Apr. 14, 2020, 85 F.R. 21734.
Ex. Ord. No. 11487, Oct. 6, 1969, 34 F.R. 15593, as amended by Pub. L. 101–509, title V, § 529 [title I, § 112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, revoked by Ex. Ord. No. 13244, § 4, Dec. 18, 2001, 66 F.R. 66267.

Department of the Navy
Ex. Ord. No. 12879, Nov. 8, 1993, 58 F.R. 59929.

Department of the Treasury
Ex. Ord. No. 13735, Aug. 12, 2016, 81 F.R. 54709.
Ex. Ord. No. 13246, Dec. 18, 2001, 66 F.R. 66270, as amended by Ex. Ord. No. 13261, § 4(f), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13735, § 4, Aug. 12, 2016, 81 F.R. 54709.
Ex. Ord. No. 11822, Dec. 10, 1974, 39 F.R. 43275, revoked by Ex. Ord. No. 13246, § 4, Dec. 18, 2001, 66 F.R. 66270.

Department of Transportation
Ex. Ord. No. 13485, Jan. 9, 2009, 74 F.R. 2287.

Department of Veterans Affairs
Ex. Ord. No. 13736, Aug. 12, 2016, 81 F.R. 54711.
Ex. Ord. No. 13247, Dec. 18, 2001, 66 F.R. 66271, as amended by Ex. Ord. No. 13261, § 4(g), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13736, § 3(a), (b), Aug. 12, 2016, 81 F.R. 54711.
Memorandum of President of the United States, Feb. 12, 2003, 68 F.R. 10141, revoked by Ex. Ord. No. 13736, § 3(d), Aug. 12, 2016, 81 F.R. 54711.

Environmental Protection Agency
Ex. Ord. No. 13973, Jan. 8, 2021, 86 F.R. 3733.
Ex. Ord. No. 13763, Jan. 13, 2017, 82 F.R. 7621, revoked by Ex. Ord. No. 13973, § 3, Jan. 8, 2021, 86 F.R. 3734.
Ex. Ord. No. 13737, Aug. 12, 2016, 81 F.R. 54713, revoked by Ex. Ord. No. 13763, § 3, Jan. 13, 2017, 82 F.R. 7622.
Ex. Ord. No. 13614, May 21, 2012, 77 F.R. 31157, revoked by Ex. Ord. No. 13737, § 3, Aug. 12, 2016, 81 F.R. 54714.
Ex. Ord. No. 13261, Mar. 19, 2002, 67 F.R. 13243, as amended by Ex. Ord. No. 13344, July 7, 2004, 69 F.R. 41747, revoked by Ex. Ord. No. 13614, § 3, May 21, 2012, 77 F.R. 31157, amended by Ex. Ord. No. 13736, § 3(b), Aug. 12, 2016, 81 F.R. 54711.

Federal Bureau of Investigation
Memorandum of President of the United States, Feb. 9, 2007, 72 F.R. 7343.

Federal Emergency Management Agency
Memorandum of President of the United States, Nov. 26, 2002, 67 F.R. 79513, terminated upon the transfer of the authorities, functions, personnel, and assets of the Federal Emergency Management Agency to the Department of Homeland Security.

Federal Mediation and Conciliation Service
Memorandum of President of the United States, Jan. 13, 2017, 82 F.R. 7629.
Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96333.
Memorandum of President of the United States, Oct. 17, 2014, 79 F.R. 63803.

General Services Administration
Memorandum of President of the United States, Sept. 2, 2020, 85 F.R. 55585.
Memorandum of President of the United States, Sept. 20, 2013, 78 F.R. 59161, revoked by Memorandum of President of the United States, § 3, Sept. 2, 2020, 85 F.R. 55585.

Millennium Challenge Corporation
Memorandum of President of the United States, May 21, 2012, 77 F.R. 31161.

National Aeronautics and Space Administration
Memorandum of President of the United States, Jan. 16, 2009, 74 F.R. 4099.

National Archives and Records Administration
Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96331.
Memorandum of President of the United States, May 21, 2012, 77 F.R. 31163, revoked by Memorandum of President of the United States, § 3, Dec. 23, 2016, 81 F.R. 96331.

National Endowment for the Arts
Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96335.

National Endowment for the Humanities
Memorandum of President of the United States, Aug. 12, 2016, 81 F.R. 54717.

Office of Management and Budget
Ex. Ord. No. 13615, May 21, 2012, 77 F.R. 31159.
Ex. Ord. No. 13370, Jan. 13, 2005, 70 F.R. 3137, revoked by Ex. Ord. No. 13615, § 3, May 21, 2012, 77 F.R. 31159.

Office of Personnel Management
Memorandum of President of the United States, Dec. 10, 2020, 85 F.R. 81775.
Memorandum of President of the United States, Aug. 12, 2016, 81 F.R. 54715, revoked by Memorandum of President of the United States, § 3, Dec. 10, 2020, 85 F.R. 81775.
Memorandum of President of the United States, May 21, 2012, 77 F.R. 31165, revoked by Memorandum of President of the United States, § 3, Aug. 12, 2016, 81 F.R. 54715.
Memorandum of President of the United States, May 5, 2005, 70 F.R. 28773, superseded by Memorandum of President of the United States, May 21, 2012, 77 F.R. 31165.
Memorandum of President of the United States, Mar. 11, 2003, 68 F.R. 12281, superseded by Memorandum of President of the United States, May 5, 2005, 70 F.R. 28773.

Office of Science and Technology Policy
Memorandum of President of the United States, Jan. 13, 2017, 82 F.R. 7625.
Memorandum of President of the United States, Aug. 5, 2009, 74 F.R. 39871, revoked by Memorandum of President of the United States, § 3, Jan. 13, 2017, 82 F.R. 7625.

Office of the Director of National Intelligence
Memorandum of President of the United States, Sept. 20, 2013, 78 F.R. 59159.
Memorandum of President of the United States, Mar. 8, 2011, 76 F.R. 13499, revoked by Memorandum of President of the United States, § 4, Sept. 20, 2013, 78 F.R. 59159.
Memorandum of President of the United States, Oct. 3, 2008, 73 F.R. 58869, revoked by Memorandum of President of the United States, § 5, Mar. 8, 2011, 76 F.R. 13499.
Memorandum of President of the United States, Dec. 20, 2005, 70 F.R. 76375, superseded by Memorandum of President of the United States, § 4, Oct. 3, 2008, 73 F.R. 58869.

Office of the United States Trade Representative
Memorandum of President of the United States, Feb. 20, 2007, 72 F.R. 8085.

Overseas Private Investment Corporation
Memorandum of President of the United States, June 6, 2011, 76 F.R. 33613.
Memorandum of President of the United States, Jan. 16, 2009, 74 F.R. 4101, revoked by Memorandum of President of the United States, § 3, June 6, 2011, 76 F.R. 33613.

Pension Benefit Guaranty Corporation
Memorandum of President of the United States, Apr. 2, 2020, 85 F.R. 19637.
Memorandum of President of the United States, Feb. 1, 2013, 78 F.R. 8953, revoked by Memorandum of President of the United States, § 3, Apr. 2, 2020, 85 F.R. 19637.
Memorandum of President of the United States, Dec. 9, 2008, 73 F.R. 75533, superseded by Memorandum of President of the United States, § 3, Feb. 1, 2013, 78 F.R. 8953.

Social Security Administration
Memorandum of President of the United States, Dec. 23, 2016, 81 F.R. 96337.
Memorandum of President of the United States, Oct. 17, 2014, 79 F.R. 63805, revoked by Memorandum of President of the United States, § 3, Dec. 23, 2016, 81 F.R. 96337.
Memorandum of President of the United States, Oct. 17, 2008, 73 F.R. 62845, revoked by Memorandum of President of the United States, § 3, Oct. 17, 2014, 79 F.R. 63805.
Memorandum of President of the United States, Apr. 17, 2006, 71 F.R. 20333, superseded by Memorandum of President of the United States, § 3, Oct. 17, 2008, 73 F.R. 62845.

United States Agency for International Development
Memorandum of President of the United States, Dec. 9, 2008, 73 F.R. 75535.

United States Section, International Boundary and Water Commission, United States and Mexico
Memorandum of President of the United States, Aug. 31, 2009, 74 F.R. 45533.

United States International Development Finance Corporation
Memorandum of President of the United States, Jan. 8, 2021, 86 F.R. 2949.

§ 3346. Time limitation(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—(1) for no longer than 210 days beginning on the date the vacancy occurs; or

(2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve—(A) until the second nomination is confirmed; or

(B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–612.)

Editorial Notes
Prior ProvisionsA prior section 3346, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for details to subordinate offices, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3345 of this title.

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3347. Exclusivity(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless—(1) a statutory provision expressly—(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(2) the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.

(b) Any statutory provision providing general authority to the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(1) applies.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 106–31, title V, § 5011, May 21, 1999, 113 Stat. 112; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes
Prior ProvisionsA prior section 3347, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for Presidential authority relating to details, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3345 of this title.

Amendments2004—Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in introductory provisions of subsec. (a) and in subsec. (b).
1999—Subsec. (b). Pub. L. 106–31 substituted “subsection (a)(1)” for “subsection (a)(2)”.

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3348. Vacant office(a) In this section—(1) the term “action” includes any agency action as defined under section 551(13); and

(2) the term “function or duty” means any function or duty of the applicable office that—(A)(i) is established by statute; and

(ii) is required by statute to be performed by the applicable officer (and only that officer); or

(B)(i)(I) is established by regulation; and

(II) is required by such regulation to be performed by the applicable officer (and only that officer); and

(ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs.

(b) Unless an officer or employee is performing the functions and duties in accordance with sections 3345, 3346, and 3347, if an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—(1) the office shall remain vacant; and

(2) in the case of an office other than the office of the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office), only the head of such Executive agency may perform any function or duty of such office.

(c) If the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period.

(d)(1) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect.

(2) An action that has no force or effect under paragraph (1) may not be ratified.

(e) This section shall not apply to—(1) the General Counsel of the National Labor Relations Board;

(2) the General Counsel of the Federal Labor Relations Authority;

(3) any Inspector General appointed by the President, by and with the advice and consent of the Senate;

(4) any Chief Financial Officer appointed by the President, by and with the advice and consent of the Senate; or

(5) an office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) if a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes
Prior ProvisionsA prior section 3348, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 100–398, § 7(b), Aug. 17, 1988, 102 Stat. 988, provided for time limitations relating to details, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3346 of this title.

Amendments2004—Subsec. (b). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in two places.
Subsec. (e)(5). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3349. Reporting of vacancies(a) The head of each Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) shall submit to the Comptroller General of the United States and to each House of Congress—(1) notification of a vacancy in an office to which this section and sections 3345, 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d apply and the date such vacancy occurred immediately upon the occurrence of the vacancy;

(2) the name of any person serving in an acting capacity and the date such service began immediately upon the designation;

(3) the name of any person nominated to the Senate to fill the vacancy and the date such nomination is submitted immediately upon the submission of the nomination; and

(4) the date of a rejection, withdrawal, or return of any nomination immediately upon such rejection, withdrawal, or return.

(b) If the Comptroller General of the United States makes a determination that an officer is serving longer than the 210-day period including the applicable exceptions to such period under section 3346 or section 3349a, the Comptroller General shall report such determination immediately to—(1) the Committee on Governmental Affairs of the Senate;

(2) the Committee on Government Reform and Oversight of the House of Representatives;

(3) the Committees on Appropriations of the Senate and House of Representatives;

(4) the appropriate committees of jurisdiction of the Senate and House of Representatives;

(5) the President; and

(6) the Office of Personnel Management.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–614; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes
Prior ProvisionsA prior section 3349, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for restrictions relating to details to fill vacancies, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3347 of this title.

Amendments2004—Subsec. (a). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in introductory provisions.

Statutory Notes and Related Subsidiaries

Change of Name
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.

Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3349a. Presidential inaugural transitions(a) In this section, the term “transitional inauguration day” means the date on which any person swears or affirms the oath of office as President, if such person is not the President on the date preceding the date of swearing or affirming such oath of office.

(b) With respect to any vacancy that exists during the 60-day period beginning on a transitional inauguration day, the 210-day period under section 3346 or 3348 shall be deemed to begin on the later of the date occurring—(1) 90 days after such transitional inauguration day; or

(2) 90 days after the date on which the vacancy occurs.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3349b. Holdover provisions
Sections 3345 through 3349a shall not be construed to affect any statute that authorizes a person to continue to serve in any office—(1) after the expiration of the term for which such person is appointed; and

(2) until a successor is appointed or a specified period of time has expired.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3349c. Exclusion of certain officers
Sections 3345 through 3349b shall not apply to—(1) any member who is appointed by the President, by and with the advice and consent of the Senate to any board, commission, or similar entity that—(A) is composed of multiple members; and

(B) governs an independent establishment or Government corporation;

(2) any commissioner of the Federal Energy Regulatory Commission;

(3) any member of the Surface Transportation Board; or

(4) any judge appointed by the President, by and with the advice and consent of the Senate, to a court constituted under article I of the United States Constitution.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

§ 3349d. Notification of intent to nominate during certain recesses or adjournments(a) The submission to the Senate, during a recess or adjournment of the Senate in excess of 15 days, of a written notification by the President of the President’s intention to submit a nomination after the recess or adjournment shall be considered a nomination for purposes of sections 3345 through 3349c if such notification contains the name of the proposed nominee and the office for which the person is nominated.

(b) If the President does not submit a nomination of the person named under subsection (a) within 2 days after the end of such recess or adjournment, effective after such second day the notification considered a nomination under subsection (a) shall be treated as a withdrawn nomination for purposes of sections 3345 through 3349c.

(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.)

Statutory Notes and Related Subsidiaries
Effective DateSection effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

SUBCHAPTER IV—TRANSFERS
§ 3351. Preference eligibles; transfer; physical qualifications; waiver
In determining qualifications of a preference eligible for transfer to another position in the competitive service, an Executive agency, or the government of the District of Columbia, the Office of Personnel Management or other examining agency shall waive—(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and

(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 94–183, § 2(4), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large

 5 U.S.C. 854 (1st 2 sentences, so much as relates to transfer).June 27
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