§ 575.304 Ineligible categories of employees.

An agency may not pay a retention incentive to an employee in— (a)(1) A position to which an individual is appointed by the President, by and with the advice and consent of the Senate; (2) A position in the Senior Executive Service as a noncareer appointee (as defined in 5 U.S.C. 3132(a)(7)); (3) A position excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character; or (4) A position not otherwise covered by the exclusions in paragraphs (a), (b), and (c) of this section— (i) To which an individual is appointed by the President without the advice and consent of the Senate, except a Senior Executive Service position in which the individual serves as a career appointee (as defined in 5 U.S.C. 3132(a)(4)); (ii) Designated as the head of an agency, including an agency headed by a collegial body composed of two or more individual members; (iii) In which the employee is expected to receive an appointment as the head of an agency; or (iv) To which an individual is appointed as a Senior Executive Service limited term appointee or limited emergency appointee (as defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the appointment must be cleared through the White House Office of Presidential Personnel. (b) Notwithstanding any provision in this subpart, an agency may— (1) Continue to pay a retention incentive to an employee whose position is moved into Schedule Policy/Career based on the terms of the service agreement and require the employee to fulfill that agreed-upon service period; and (2) Continue to pay a retention incentive to an employee whose position is moved into Schedule Policy/Career at a time when the employee is receiving a retention incentive without a service agreement, so long as the agency finds that the payment otherwise continues to be warranted in consideration of the factors set forth in § 575.311(f).