stated: "The Civil Service Commission has the authority to authorize agencies to make temporary appointments, but it has not exercised that authority to the extent that it should.'

"Since the Whitten Amendment (section 1310) remains in effect until the December 16, 1950 national emergency is terminated, it has been necessary over the years to revise it a number of times in order to permit the Federal personnel system to operate effectively.

Comment

"Since a defense mobilization situation no longer exists, the Whitten Amendment is no longer needed and should be permitted to expire when the current declaration of national emergency is terminated. The President and the Civil Service Commission have adequate authority to act in future emergency situations to control appointments and promotions to avoid the mobilization problems the Amendment was intended to meet. Emergency preparedness plans have been carefully developed with this objective in mind. These plans are also designed to meet situations like the current economic and energy emergencies. For example, temporary organizations set up to deal with these emergencies have been authorized to make emergency indefinite rather than permanent appointments."

5 U.S.C. 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 non-appropriated 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 Civil Service Commission;

(2) the minimum rate of basic pay for the position has been increased under section 5303 of this title; or

(3) a state of national emergency exists.

(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.)

Recommendation: The Civil Service Commission recommends: "5 U.S.C. 3326 (b)-This provision, relating to the employment of retired military personnel, should be retained without amendment for use in future national emergencies. No action is needed if the present national emergency is terminated.

Purpose of Provision

The prohibition on employment by Defense agencies of most retired military personnel within 180 days of their retirement was included in the Dual Compensation Act (Public Law 88-448, approved August 19, 1964), to prevent certain non-merit practices in filling civilian positions with military personnel immediately following their retirement. The exception to the 180 day prohibition during a period of national emergency was included to avoid an obstacle to rapid mobilization to meet national defense needs.

Comment

Exceptions to the 180 day prohibition in U.S.C. 3326 are not being made on the ground that a state of national emergency now exists. The Civil Service Commission and the Department of Defense agreed, immediately following enactment of the Dual Compensation Act, that the declaration of national emergency in Proclamation 2914 of December 16, 1950, would not be used as a basis for exceptions to the 180 day prohibition. Consequently, no action to amend 5 U.S.C. 3326 (b) is needed if the current state of national emergency is terminated. The provision for the exception should be retained, however, for use when needed in future national emergencies."

The Department of Defense, however, indicates that this authority is currently being used and requests that the statute be amended to grant these powers on a permanent basis.

It should be noted that the appointment powers in question may be exercised when there is no state of emergency under § (b) (1); a declaration of emergency simply does away with normal procedural restrictions on the power.

5 U.S.C. 5305. ANNUAL PAY REPORTS AND ADJUSTMENTS

(a) In order to carry out the policy stated in section 5301 of this title, the President shall

(1) direct such agent as he considers appropriate to prepare and submit to him annually, after considering such views and recommendations as may be submitted under the provisions of subsection (b) of this section, a report that—

(A) compares the rates of pay of the statutory pay systems with the rates of pay for the same levels of work in

annual surveys that shall be conducted by the Bureau of Labor Statistics;

(B) makes recommendation for appropriate adjustments in rates of pay; and

(C) includes the views and recommendations submitted under the provisions of subsection (b) of this section;

(2) after considering the report of his agent and the findings and recommendations of the Advisory Committee on Federal Pay reported to him under section 5306(b)(3) of this title, adjust the rates of pay of each statutory pay system in accordance with the principles under section 5301 (a) of this title effective as of the beginning of the first applicable pay period commencing on or after October 1 of the applicable year; and

(3) transmit to Congress a report of the pay adjustment, together with a copy of the report submitted to him by his agent and the findings and recommendations of the Advisory Committee on Federal Pay reported to him under section 5306 (b) (3) of this title.

*

(c) (1) If, because of national emergency or economic conditions affecting the general welfare, the President should, in any year, consider it inappropriate to make the pay adjustment required by subsection (a) of this section, he shall prepare and transmit to Congress before September 1 of that year such alternative plan with respect to a pay adjustment as he considers appropriate, together with the reasons therefore, in lieu of the pay adjustments required by subsection (a) of this section.

Recommendation: The Civil Service Commission comments: "5 U.S.C. 5305(c)(1)—This provision, relating to Federal pay comparability adjustments, is not restricted to use during national emergencies and should be retained without amendment. No action is needed if the current national emergency is terminated." Purpose of the Provision

The Federal Pay Comparability Act of 1970 (Public Law 91-–656, approved January 8, 1971) added section 5305 to title 5, providing for annual adjustments in the pay rates of the statutory pay systems to keep the rates comparable with those of private industry for the same levels of work. Recognizing that it might not always be in the best public interest to make such an automatic pay adjustment, Congress included authority to the President (in 5 U.S.C. 5305(c)) to transmit an alternate plan for pay adjustments when he considers it inappropriate to make the automatic adjustment because of “national emergency or economic conditions." Congress is given 30 days during which it may disapprove the alternative plan, in which case the automatic adjustment will become effective.

Comment

Since enactment of Federal Pay Comparability Act, the President has found it necessary to submit alternate plans under 5 U.S.C. 5305 (c) to keep Federal pay raises within the limits of national wage and

[Emphasis supplied.]

price stabilization guidelines. To meet similar needs to control Federal pay raises in the future, the authority in 5 U.S.C. 5305 (c) should be retained, without amendment. It should be noted that the wording of the authority to submit alternate plans does not restrict its use to a formally declared war or other national defense emergency. Consequently, no action is needed to amend this law in the event the national emergency proclaimed on December 16, 1950 (Proclamation No. 2914) is terminated."

5 U.S.C. 5335. PERIODIC STEP-INCREASES

(a) An employee paid on an annual basis, and occupying a permanent position within the scope of the General Schedule, who has not reached the maximum rate of pay for the grade in which his position is placed, shall be advanced in pay successively to the next higher rate within the grade at the beginning of the next pay period following the completion of

(1) each 52 calendar weeks of service in pay rates 1, 2, and 3: (2) each 104 calendar weeks of service in pay rates 4, 5, and 6; or

(3) each 156 calendar weeks of service in pay rates 7, 8, and 9;

subject to the following conditions:

(A) the employee did not receive an equivalent increase in pay from any cause during that period; and

(B) the work of the employee, except a hearing examiner appointed under section 3105 of this title, is of an acceptable level of competence as determined by the head of the agency.

(b) Under regulations prescribed by the Civil Service Commission, the benefit of successive step-increases shall be preserved for employees whose continuous service is interrupted in the public. interest by service with the armed forces or by service in essential non-Government civilian employment during a period of war or national emergency.

(c) When a determination is made under subsection (a) of this section that the work of an employee is not of an acceptable level of competence, the employee is entitled to prompt written notice of that determination and an opportunity for reconsideration of the determination within his agency under uniform procedures prescribed by the Commission. If the determination is affirmed on reconsideration, the employee is entitled to appeal to the Commission. If the reconsideration or appeal results in a reversal of the earlier determination, the new determination supersedes the earlier determination and is deemed to have been made as of the date of the earlier determination. The authority of the Commission to prescribe procedures and the entitlement of the employee to appeal to the Commission do not apply to a determination of acceptable level of competence made by the Librarian of Congress.

(d) An increase in pay granted by statute is not an equivalent increase in pay within the meaning of subsection (a) of this section.

(e) This section does not apply to the pay of an individual appointed by the President, by and with the advice and consent of the Senate. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 469; Pub. L. 90-83, § 1 (20), Sept. 11, 1967, 81 Stat. 199.)

Recommendation: The Civil Service Commission comments: "5 U.S.C. 5335 (b)-This provision, relating to within-grade stepincreases for Federal salaried employees, should be retained without amendment for use in future national emergencies. No action is needed if the current national emergency is terminated."

Comment

"In its emergency preparedness plans for future wars and national emergencies which require a substantial defense mobilization, the Civil Service Commission has provided for the replacement of its career appointment system with an 'emergency-indefinite' appointment system. The plans also include provisions for transfers with reemployment rights of Federal employees to non-Government jobs in defense industries when it becomes necessary to establish a national system of manpower controls. Therefore, the authority in 5 U.S.C. 5335 (b) should be retained for use when needed in future wars and national emergencies. However, this provision is not needed in peacetime. Consequently, no action is needed to amend this law in the event the national emergency proclaimed on December 16, 1950 (Proclamation No. 2914) is terminated."

The Department of Commerce concurs that this provision should be retained for use during future emergencies only. The Department of Defense, however, indicates that it is currently using 5 U.S.C. 5335 and recommends that it be made a permanently delegated authority not dependent on a state of emergency.

5 U.S.C. 5532. EMPLOYMENT OF RETIRED OFFICERS OF THE UNIFORMED SERVICES, REDUCTION IN RETIRED OR RETIREMENT PAY; EXCEPTIONS

(a) For the purpose of this section, "period for which he receives pay" means the full calendar period for which a retired officer of a regular component of a uniformed service receives the pay of a position when employed on a full-time basis, but only the days for which he actually receives that pay when employed on a part-time or inter

mittent basis.

(b) A retired officer of a regular component of a uniformed service who holds a position is entitled to receive the full pay of the position, but during the period for which he receives pay, his retired or retirement pay shall be reduced to an annual rate equal to the first $2,000 of the retired or retirement pay plus one-half of the remainder, if any. In the operation of the formula for the reduction of retired or retirement pay under this subsection, the amount of $2,000 shall be increased, from time to time, by appropriate percentage, in direct proportion to each increase in retired or retirement pay under section 1401a (b) of title 10 to reflect changes in the Consumer Price Index.