Rule2021-11894
Promotion and Internal Placement
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 8, 2021
Effective
July 8, 2021
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing final regulations to give agencies, in individual hiring processes, the discretion to select and reinstate certain former Federal employees, to fill vacancies at any grade level or with promotion potential for which the individual is qualified, notwithstanding the grade of the position the individual had previously held on a permanent basis in the competitive service. An agency will be able to effectuate such reinstatements non-competitively, pursuant to a job opportunity announcement open to outside candidates, provided the former employee qualifies for the position as posted. The regulations will help agencies to recruit former Federal employees who have developed more enhanced or higher-level skill-sets than they had when they left government to apply for agency vacancies at grade levels appropriate to their current knowledge, skills, and abilities. Previously, an agency could reinstate an individual, without competition, only to a position at a grade level that was no higher than the grade level of a position the individual had held on a permanent basis in the competitive service. Reinstatement to a higher-graded position, or to a position with greater promotion potential, required competition. The intended effect of this hiring authority is to broaden the choices available to agencies when filling vacant positions and to promote a workforce in which individuals who have developed their competencies through extended service in the Federal Government and individuals who have developed their competencies in the private or non-profit sectors can enhance each other's strengths by sharing knowledge and perspectives.
Full Text
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<title>Federal Register, Volume 86 Issue 108 (Tuesday, June 8, 2021)</title>
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[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Rules and Regulations]
[Pages 30375-30379]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11894]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Rules
and Regulations
[[Page 30375]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 335
RIN 3206-AN77
Promotion and Internal Placement
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to give agencies, in individual hiring processes, the
discretion to select and reinstate certain former Federal employees, to
fill vacancies at any grade level or with promotion potential for which
the individual is qualified, notwithstanding the grade of the position
the individual had previously held on a permanent basis in the
competitive service. An agency will be able to effectuate such
reinstatements non-competitively, pursuant to a job opportunity
announcement open to outside candidates, provided the former employee
qualifies for the position as posted. The regulations will help
agencies to recruit former Federal employees who have developed more
enhanced or higher-level skill-sets than they had when they left
government to apply for agency vacancies at grade levels appropriate to
their current knowledge, skills, and abilities. Previously, an agency
could reinstate an individual, without competition, only to a position
at a grade level that was no higher than the grade level of a position
the individual had held on a permanent basis in the competitive
service. Reinstatement to a higher-graded position, or to a position
with greater promotion potential, required competition. The intended
effect of this hiring authority is to broaden the choices available to
agencies when filling vacant positions and to promote a workforce in
which individuals who have developed their competencies through
extended service in the Federal Government and individuals who have
developed their competencies in the private or non-profit sectors can
enhance each other's strengths by sharing knowledge and perspectives.
DATES: This rule is effective July 8, 2021.
FOR FURTHER INFORMATION CONTACT: Michelle T. Glynn, Telephone: 202-606-
1571, Fax: 202-606-3340, TDD: 202-418-3134, or email:
<a href="/cdn-cgi/l/email-protection#7c11151f1419101019521b100512123c130c11521b130a"><span class="__cf_email__" data-cfemail="0f62666c676a63636a2168637661614f607f6221686079">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On December 26, 2019, the Office of
Personnel Management (OPM) published proposed regulations in the
Federal Register at 84 FR 70906 to change the criteria for how an
agency may reinstate certain former Federal employees to a position in
the competitive service in part 335 of title 5, Code of Federal
Regulations (CFR). OPM received 36 comments on the proposed rule: 20
from individuals, 11 from Federal agencies, 4 from professional
associations, and 1 from a Federal employees' union (``the Federal
Employees' Union'').
Ten individuals, eight Federal agencies, and 2 professional
associations expressed their general support for the proposed changes.
Three Federal agencies recommended OPM place a limitation on the
number of times an individual can be noncompetitively reinstated under
this hiring authority. OPM is not adopting this suggestion because the
purpose of this rule is to broaden choices for an agency seeking to
fill a vacancy by enabling an agency to choose to reinstate a former
employee, non-competitively, when such a former employee applies for
the position and establishes qualifications at the appropriate level,
and regardless of the grade or promotion potential of that employee's
prior Federal position. Limitations on the number of times an
individual could apply for a position through this reinstatement
authority could act as a disincentive for individuals who have
developed their knowledge, skills, and abilities through experiences
outside of the Federal Government to attempt to return to Federal
service. The Federal government can benefit when an employee leaves
Federal service if the employee obtains new experiences in the private
sector, the non-profit sector, academia, or state and local government
that enrich the knowledge, skills, and abilities of the employee.
Facilitating the return to Government of people who have broadened
their work experience in this way advances the civil service's goal of
an effective and efficient government. Apart from providing the agency
with additional choices in making selections for current vacancies, it
enables agencies to build a workforce of individuals who bring a
variety of knowledge, training, and experiences to their work.
Accordingly, OPM seeks to remove barriers to reinstating Federal
employees who have already competed for a Federal position once or who
otherwise meet the service requirement for career tenure in accordance
with 5 CFR 315.201 and reinstatement eligibility under 5 CFR 315.401,
performed successfully, and subsequently gained valuable new skills and
experiences when they apply to positions commensurate with their
current level of qualification.
One commenter asked whether this rule waives the three-year time
limit on reinstatement eligibility in 5 CFR 315.401(b) for individuals
who did not complete the requirement for career tenure. OPM is not
waiving the time limitations in 5 CFR 315.401(b). Former career-
conditional employees are eligible for reinstatement for three years.
Former career employees have lifetime eligibility for reinstatement.
Another individual commented that an employee who leaves an agency
before completing 52 weeks at their current grade level should not be
allowed to be reinstated after one year to a position at a higher grade
level because the employee did not obtain all of the knowledge, skills,
experience, and training at the lower grade to be eligible for work at
the higher grade. OPM agrees, in part, with this comment, but it has
already addressed through existing regulation. Individuals seeking
reinstatement to a higher-graded position under this rule must meet
time-in-grade (TIG) restrictions in accordance with 5 CFR part 300
subpart F; reinstatement is not an exclusion from TIG restriction per 5
CFR 315.603(b)(2). OPM disagrees with the commenter's belief that an
individual could not meet the qualifications for higher-graded work if
the requisite education or experience was obtained outside of Federal
employment. OPM has
[[Page 30376]]
concluded that some individuals can and do acquire such skills and or
experience from work with other employers. The proposed regulation
acknowledges this possibility and provides that, when it arises, such
former employees may apply for positions at higher levels, or with
higher promotion potential, than the positions they previously held,
and agencies may reinstate such individuals at that grade level, just
as agencies do now when appointing other individuals from outside the
agency's workforce who apply under other non-competitive hiring
authorities (e.g., when agencies hire individuals under the non-
competitive appointment of certain military spouses, or the non-
competitive appointment of present and former Peace Corps personnel).
OPM believes its rationale for this rule is sound: That individuals who
have previously proven their ability to be successful in Federal
employment over an extended period should be allowed to apply for
vacant positions at the grade level for which they currently qualify,
and agencies should be able to appoint them, non-competitively, through
this expansion to the reinstatement provision. The presence of
restrictions on the grade level to which an individual could be
reinstated could serve as a disincentive for highly qualified
individuals to apply for positions that would enable them to rejoin the
Federal workforce.
Three Federal agencies and three individuals suggested OPM limit
reinstatement under this provision to one grade level higher than the
highest grade level an individual held. OPM is not adopting this
suggestion because the intent of this rule is to allow individuals to
be reinstated at any grade level for which a position is posted and for
which the individual qualifies.
Four individuals, one professional association, one Federal agency,
and the Federal Employees' Union stated this proposed rule should also
apply to current Federal employees who have completed one year of
service after a competitive appointment and were rated at least fully
successful on their most recent performance appraisal. OPM cannot adopt
this recommendation. Current Federal employees cannot be reinstated;
reinstatement is a personnel action that applies to certain former
federal employees. The scope of the proposed regulation concerned
reinstatement of former Federal employees only.
Seven individuals, two Federal agencies, and the Federal Employees'
Union commented that this hiring authority will be abused and
questioned the fairness of allowing former Federal employees to come
back to Federal service at higher grade levels noncompetitively when
current Federal employees must compete for higher grade levels. There
are many safeguards built into this enhanced flexibility. This
flexibility was proposed as a discretionary action under 5 CFR part
335. This means an agency may except reinstatement actions from the
competitive procedures of part 335 but is not required to do so.
Discretionary actions must be taken in accordance with the hiring
agency's merit promotion plans pursuant to 5 CFR 335.103, and any
collective bargaining agreements the hiring agency has in place. Before
an agency may select a former employee and reinstate him or her to a
position at a higher grade level or with higher promotion potential
than the position the individual previously held, the agency must
provide public notice through a job opportunity announcement, clear its
Reemployment Priority List (RPL) as well as its Career Transition
Assistance Plans (CTAP), and Interagency Career Transition Assistance
Plans (ICTAP); consider applicants under the Veterans Employment
Opportunities Act of 1998, as amended (VEOA), 5 U.S.C. 3304(f) and the
Land Management Workforce Flexibilities Act, as applicable; and assess
whether the individual meets all qualifications requirements for the
position to which the individual is being reinstated. OPM will assess
agency use of this flexibility as part of its on-going oversight work
or will consider whether to conduct a specific evaluation of this
flexibility after it has been in operation for a year, depending on how
widely it is used. OPM's purpose in modifying its reinstatement
regulation is to expand agency choice by permitting an agency to select
and reinstate into Government former successful Federal employees who
have obtained new knowledge, skills, and abilities from outside
government that qualifies them for the positions posted. An agency may
also consider and select from among candidates who qualified through
the normal progression through established steps and grades and the
agency's merit promotion program. OPM believes that permitting these
choices will enhance the quality of hiring, and thus Government,
generally, and enable agencies to exploit knowledge, skills, and
abilities acquired and developed both within and outside the Federal
sector, enhancing diversity of thought and methods and enriching the
workforce. In that scenario, the Federal government recoups the value
of the training and development invested in the employee when he or she
was previously in Federal service and recoups the benefit of the
additional training and development the person received while working
outside of government. It can be a benefit for Federal workers to gain
new perspectives on how to best deliver agency missions from jobs
outside of government, and OPM seeks to facilitate agencies' ability to
pursue that benefit by permitting them to select former Federal
employees non-competitively, when they qualify for posted positions,
even if the grade level of or promotion potential for the position
exceeds the grade the former employee previously held.
Seven individuals, two Federal agencies and the Federal Employees'
Union state the changes will discourage current Federal employees, if
someone is hired noncompetitively, because current Federal employees do
not have the same opportunity to compete for a higher graded position;
they believe this hiring will be abused. It is more accurate to view
the two methods of qualifying for selection as counterparts for two
different groups of people with prior experience in Government. Both
former successful Federal employees and current successful employees
will have the ability to qualify and be selected through methods that
recognize the knowledge, skills, and abilities they have acquired,
though through different paths. We also note that an agency that
ultimately reinstates an individual to a higher grade level or with
greater promotion potential, using this authority, must first have
complied with public notice requirements, met CTAP/ICTAP procedures,
considered other candidates from outside their agency pursuant to the
VEOA and Land Management requirements; assessed that the individual met
all qualifications requirements; and concluded that the former employee
was the candidate with the highest relative level of knowledge, skills,
and experience, in accordance with the Merit Systems Principles. As
previously noted, OPM believes these safeguards are adequate to protect
this discretionary flexibility from abuse. OPM will assess agency use
of this flexibility as part of its on-going oversight work or consider
whether to conduct a specific evaluation of this flexibility after it
has been in operation for a year, depending on how widely it is used.
This proposal also does not eliminate an agency's discretion to limit
the area of consideration to agency employees when filling positions.
We are simply providing a new option for agencies that expands choices
and
[[Page 30377]]
reflects the fact that employees who have moved to jobs outside
government to develop their abilities may wish to come back to Federal
service in a position that makes good use of newly acquired skills.
Agencies may lose out on such candidates if their only means of re-
entry continues to be to return to a position at the last grade they
occupied or apply again through the sort of open competitive
examination that they underwent when they originally entered Government
service.
Two individuals and 3 Federal agencies questioned OPM's assertion
that former employees actually acquire skills or experience in private
industry that would qualify them for non-competitive appointment to
higher graded positions under this rule. In addition, these commenters
stated OPM's argument is not substantive and lacks merit and logic. OPM
is not asserting that all former employees will have acquired the sorts
of skills or experience in the private sector that would qualify them
for appointment to higher-graded positions than the positions in the
Government they previously held, or that they will necessarily be among
the best candidates for the position. OPM simply recognizes that some
individuals may, in fact, acquire such skills and or experience. If
they, do, the proposed rule provides agencies the flexibility to select
and reinstate such individuals in hiring processes for particular
positions, at the grade level for which those individuals qualify, just
as agencies may appoint other individuals from outside of the agency's
workforce at a grade level appropriate to their knowledge, skills, and
abilities. OPM believes its rationale for this rule is sound: That
permitting individual agencies to appoint a former successful Federal
employee at a grade level for which the employee qualifies, benefits
Government, by attracting former employees who have obtained important
new knowledge, skills, and abilities from outside of government and
thus enhancing the choices available to the agency under the Merit
System Principles. For example, the an agency could secure a huge
benefit if an individual was first hired into an entry-level position
through a normal competitive process, spent several years with the
agency learning about a program and obtaining valuable training and
development, then went to private industry to experience the impact of
the program first hand, then went to a state government to become a
program manager of a similar state program, and now wants to return to
her original agency as a program manager for the Federal program. There
is value in facilitating an agency's ability to select such an
individual, in a particular hiring action, through a non-competitive
process. The presence of restrictions on the grade level to which an
individual may be reinstated currently serves as a disincentive for
individuals to consider rejoining the Federal workforce.
One individual commented that the proposed rule is not in the best
interest of the American people. OPM disagrees. First, we note that the
proposed rule is a discretionary action but used requires: The
applicant to be reinstatement eligible, meet time-in-grade
requirements, and meet all qualifications requirements needed for the
position the individual is seeking. It also requires the agency to
adhere to the Merit System Principles when using this authority.
Because of these safeguards, OPM believes the proposed language is in
the public interest; it provides wider choice to agencies by
encouraging qualified former employees to apply, thereby enhancing
merit.
One Federal agency commented that the language at the new proposed
paragraph 335.103(c)(3)(viii) does not clearly emphasize that these
enhanced skills/experiences were obtained in the private sector. The
comment is ambiguous; OPM interprets it to mean, ``Proposed paragraph
335.103(c)(3)(viii) does not clearly emphasize that these enhanced
skills/experience, putatively gained in the private sector, were
actually acquired.'' When using this authority, a hiring agency must
determine, based on an assessment of all of the pertinent skills,
abilities and experience the applicant possesses, that the applicant
possesses the qualifications required for the position to which he or
she has applied and the agency is seeking to fill, including the grade
level at which the agency intends to fill it. Reinstatement is
available only if the agency determines the applicant does possess such
qualifications. If the agency determines the applicant is qualified,
for example, for a higher grade than that of the position the applicant
had in a prior federal job, this rule rules allows the agency the
discretion to appoint the applicant at that level, notwithstanding the
grade of the position the applicant previously occupied.
One Federal agency suggested OPM provide an exception to ICTAP
under this hiring authority. OPM is not adopting this suggestion. The
purpose of ICTAP is to restore employees who were involuntarily
separated to comparable positions for which they are deemed to be well-
qualified. In other words, ICTAP is a means to `make an employee whole'
whose career was disrupted through no fault (or action) of that
employee. An exception to ICTAP would vacate the selection priority
that ICTAP eligible individuals would otherwise have when applying for
positions.
One Federal agency suggested OPM include a statement that former
employees who received a Voluntary Separation Incentive Payment (VSIP)
must repay the VSIP if rehired under this rule. OPM is not adopting
this recommendation because VSIP repayment provisions already exist at
5 CFR part 576 subpart B. Agencies must ensure that any hiring action
is made in accordance with 5 CFR 576 subpart B regardless of the
authority under which the individual is being appointed.
An individual asked what research OPM conducted to support the
claim that the proposed rule would ``benefit'' both agencies as well as
individuals seeking reemployment with the government. OPM believes the
benefits to agencies to be self-evident: The regulation will provide
greater choice to agencies, and provide an ability to recruit back to
Government former Federal employees who have developed enhanced or
higher-level skillsets than they had when they left government.
This proposed regulation is part of OPM's on-going efforts to
provide tools to help agencies attract and retain the talent they need
to carry out their mission requirements.
One individual and three Federal agencies asked OPM to clarify the
phrase ``most recent'' in the context of using the performance rating
from an individual's last Federal appointment. These commenters also
asked that OPM explain the value of relying on the most recent
performance rating if the former employee has been out of Federal
service for many years. The term ``most recent'' means the last Federal
rating of record under 5 CFR part 430 an individual received from his
or her last career or career-conditional position. The value of using a
former employee's most recent (i.e., last) rating of record under 5 CFR
part 430 for these purposes is to ensure the individual was performing
to expectations at the time he or she left Federal service and to
provide consistency with other requirements for career advancement in
the competitive service. Under 5 CFR 335.104, performance is an
important factor for advancement to a higher grade level. Typically,
agencies consider an individual's performance during the rating cycle
that precedes the personnel action to be taken or the most recent
rating of record. This is especially so for appointments (including
[[Page 30378]]
reinstatements) or promotions to higher grades. Absence of this
requirement for this noncompetitive appointment by reinstatement would
create unnecessary disparate treatment among individuals vying for the
same position.
Two Federal agencies suggested OPM eliminate the proposed
requirement that an individual must have received a rating of record of
Fully Successful to be eligible under these rules. These agencies
suggested that OPM replace this requirement with consideration of an
individual's entire Federal employment record. OPM is not adopting this
suggestion. The requirement that an individual must have a rating of
record under 5 CFR part 430 aligns with 5 CFR 335.104, thus providing
consistency and fairness with respect to Federal employees vying for
the same position through career ladder promotions. An individual whose
last rating was not fully successful or its equivalent may still
compete for Federal positions under normal competitive processes.
Four Federal agencies stated there are inconsistencies by using the
word ``if'' at 335.103(c)(1)(vi) and the word ``provided'' at
335.103(c)(3)(viii) and recommends changing and use the same word in
both places for consistency. OPM disagrees. Section 335.103(c)(1)(vi)
originally said that an agency must apply competitive procedures to
reinstatement at a higher grade level or with more promotion potential.
This rule added the phrase ``if'' the individual did not wait at least
a year to reapply or did not have a most recent rating of record of
Fully Successful or above. 335.103(c)(3)(viii) is a new section that
provides that an agency may except from competitive procedures
reinstatement of an employee at a higher grade level or with more
promotion potential, ``provided'' that the employee has waited at least
a year and has a most recent rating of record of Fully Successful or
above. Thus, the two provisions are not parallel. ``If'' connotes ``on
the condition that'' and ``provided'' connotes ``as long as''. As a
result, OPM is not adopting this suggestion.
Three Federal agencies recommend OPM also allow individuals
separated ``involuntarily'' due to reduction in force (RIF), or
recovered after disability retirement or medical inability to be
eligible under these rules. OPM agrees these provisions should apply to
individuals who are separated involuntarily as a result of a RIF. We
have modified proposed Sec. 335.103(c)(3)(viii) by removing the word
``voluntary'' in this section. This change extends eligibility to any
individual who is separated for at least 1 year before being reinstated
and has a rating of record for his or her most recent career or career-
conditional position of at least Fully Successful (or equivalent).
Individuals returning to work after disability retirement must be
qualified for higher-graded work the same as anyone else and may be
subject to any requirements pertaining to reemployed annuitants and/or
provisions affecting their retirement payments in accordance with 5
U.S.C. 8837(d) and 5 U.S.C. 8455(a), and the corresponding implementing
provisions at 5 CFR parts 831 and 843. OPM is not adopting the
suggestion to include individuals who recovered after medical inability
because regulations at 5 CFR part 353 subpart C address restoring an
individual to duty after compensable injury or illness.
Seven individuals, four Federal agencies, one professional
organization and the Federal Employees' Union believe this proposal is
contrary to Merit System Principles and deprives certain bargaining
unit employees of their collectively bargained right to first
consideration. OPM disagrees these rules are contrary to Merit System
Principles. These rules allow an agency (at its own discretion) to
consider an individual who has previously succeeded as a Federal
employee and achieved career status at the grade level for which the
individual currently qualifies through a non-competitive process. The
rules do not require an agency to use this authority or to hire any
particular individual. Agencies must still adhere to their merit
promotion plans and Merit Systems Principles in making hiring decisions
under this authority. An agency could require competition under 5 CFR
335, Promotion and Internal Placement, if the agency chose to do so.
OPM also disagrees that this proposal will deprive employees of any
rights those employees may have pursuant to their agency's collective
bargaining agreement (CBA). As to any right of first consideration,
making selections for a position from any appropriate source is a
management right. 5 U.S.C. 7106(a)(2)(C)(ii). It would abrogate that
management right to require an agency to limit a selection to
bargaining unit employees. However, whether a currently applicable
collective-bargaining provision relating to ``first consideration'' of
bargaining-unit employees is negotiable and therefore enforceable is a
case-by-case determination to be adjudicated by the FLRA and the
courts. OPM expresses no views concerning any particular proposal or
provision. In addition, the final rule merely allows agencies
additional flexibility to rehire former federal employees but does not
require them to do so. Thus, we do not agree that the final rule will
inevitably deprive bargaining unit employees of first consideration in
accordance with law. We note that any hiring mechanism or authority
that permits or requires agencies to consider candidates from outside
the agency's existing workforce can impact the ability for a current
employee to advance to a higher graded position, but, in this case, the
changes will benefit the effectiveness and efficiency of Government and
further Merit System Principles, by enhancing choices.
One Federal agency requested that OPM clarify whether applicants
eligible under these rules could be eligible for the superior
qualifications pay-setting authority, and, if so, how an individual
would meet these requirements. Agencies may use superior qualifications
pay-setting authority (which is not a hiring authority) to set the rate
of basic pay upon the first appointment as a civilian employee of the
Federal government or for reappointment to a GS position after a break
in service of 90-days or more, as stated at 5 CFR 531. The mechanics of
how to apply this pay flexibility are beyond the scope of the proposed
rule. Agencies interested in using the superior qualifications pay
authority should refer to 5 CFR 531.212 as well as OPM's Pay
Administration guidance at <a href="https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/superior-qualifications-and-special-needs-pay-setting-authority">https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/superior-qualifications-and-special-needs-pay-setting-authority</a>.
One individual asked OPM to clarify how positions filled using this
flexibility will be advertised or otherwise made available to job-
seekers. Reinstatement actions made under these rules are subject to
public notice requirements in accordance with 5 U.S.C. 3327 and 3330 as
well as the provisions for selection priority for displaced Federal
employees. This means agencies are required to post any vacant
positions they may fill through reinstatement on the USAJOBS website
(<a href="http://www.usajobs.gov">www.usajobs.gov</a>). Applicants should visit the USAJOBS website for
information about positions for which they may be interested in
applying.
One agency recommended OPM address the parameters for using this
reinstatement hiring flexibility to ensure compliance with merit system
principles and address how OPM oversight will be conducted. Use of this
hiring authority is discretionary on the part of agencies. When using
this
[[Page 30379]]
authority agencies are required to assess an applicant's qualifications
for the position being filled and avoid relying on prohibited
considerations in making selections in the same manner as they would
when making any other appointment.
A professional executive association suggested OPM develop a
legislative proposal to further cement the goals of this regulation.
Further legislation is not necessary; 5 U.S.C. 3301 and 3302 provides
the President the statutory authority to craft rules governing
competitive status, career tenure, and discretion in hiring. The
President delegated much of his authority to OPM through presidential
Civil Service Rules, see, especially, 5 CFR 2.2, and provided in Rule
VII, 5 CFR 7.1, that agencies have discretion to fill positions in the
competitive service by competitive appointment or by noncompetitive
selection of a present or former Federal employee.
Two of the comments we received were beyond the scope of the
proposed changes. One individual could not locate a copy of the
proposed regulation on the <a href="http://regulations.gov">regulations.gov</a> website. The other commenter
recommended OPM re-evaluate the 40-hour basic work week.
OPM is making two clarifying changes to the final rule which
commenters did not address. We have added references to Civil Service
Rules II and VII in the ``authority'' listing which are OPM's
authority, pursuant to the President's delegation of his own authority
under 5 U.S.C. 3301 and 3302, to establish and administer a system that
provides for career appointments for former employees eligible for
career appointment upon reinstatement, and agencies' authority to
select for positions in the competitive service by competitive
appointment or by noncompetitive selection of a present or former
Federal employee.
OPM has modified the wording in 5 CFR 335.103(c)(3)(viii) by
inserting the words, ``before applying for reinstatement,'' to parallel
the language used in 5 CFR 335.103(c)(1)(vi).
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact
on a substantial number of small entities because it applies only to
Federal agencies and employees.
E.O. 13563 and E.O. 12866, Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is not a ``significant regulatory action,''
under Executive Order 12866 and was not reviewed by OMB.
E.O. 13132, Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988, Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of nonagency parties and, accordingly, is not a ``rule'' as
that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Paperwork Reduction Act
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 335
Government employees.
Office of Personnel Management
Alexys Stanley,
Regulatory Affairs Analyst.
Accordingly, OPM is amending 5 CFR part 335 as follows:
* * * * *
PART 335--PROMOTION AND INTERNAL PLACEMENT
0
1. The authority citation for part 335 is revised to read as follows:
Authority: 5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577,
E.O. 11478, 3 CFR 1966-1970, Comp., page 803, unless otherwise
noted, E.O. 13087; and E.O. 13152, 3 CFR 19554-58 Comp., p.218; 5
U.S.C. 3304(f), and Pub. L. 106-117, and 5 CFR 2.2 and 7.1.
Subpart A--General Provisions
0
2. In Sec. 335.103, revise paragraph (c)(1)(vi) and add paragraph
(c)(3)(viii) to read as follows:
Sec. 335.103 Agency promotion programs.
* * * * *
(c) * * *
(1) * * *
(vi) Reinstatement to a permanent or temporary position at a higher
grade or with more promotion potential than a position previously held
on a permanent basis in the competitive service if the individual did
not wait 1 year or more after separating from Federal employment before
applying for reinstatement, or did not receive a rating of record for
his or her most recent career or career-conditional position of at
least Fully Successful (or equivalent).
* * * * *
(3) * * *
(viii) Reinstatement in accordance with 5 CFR part 315 to any
position in the competitive service for which the individual is
qualified at a higher grade level or with more promotion potential than
a career or career-conditional position previously held by the
individual; provided: The individual has been separated for at least
one year before applying for reinstatement, and the individual must
have received a rating of record for his or her most recent career or
career-conditional position of at least Fully Successful (or
equivalent).
* * * * *
[FR Doc. 2021-11894 Filed 6-7-21; 8:45 am]
BILLING CODE 6325-39-P
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