[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Rules and Regulations]
[Pages 34257-34258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16825]
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Rules and Regulations
Federal Register
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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
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 63, No. 121 / Wednesday, June 24, 1998 /
Rules and Regulations
[[Page 34257]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 317 and 335
RIN 3206-AH92
Employment in the Senior Executive Service; Promotion and
Internal Placement
AGENCY: Office of Personnel Management.
ACTION: Interim regulations with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations to correct existing regulations which are inconsistent with
statutory provisions governing the 120-day moratorium on involuntary
reassignments of career Senior Executive Service (SES) appointees
following the appointment of a new agency head or a new noncareer
immediate supervisor; and to authorize agencies to reinstate SES career
appointees who have competitive service reinstatement eligibility to
career appointments in any competitive service position for which
qualified, including Senior Level (SL) positions.
EFFECTIVE DATE: July 24, 1998.
COMMENTS DUE: August 24, 1998.
ADDRESSES: Send or deliver comments to Ms. K. Joyce Edwards, Assistant
Director for Executive Policy and Services, Office of Executive
Resources, Room 6484, U.S. Office of Personnel Management, 1900 E
Street NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT: Mr. Bede Bender (202) 606-1784.
SUPPLEMENTARY INFORMATION:
120-Day Moratorium on Involuntary Reassignments
The law in 5 U.S.C. 3395(e)(1) provides for a 120-day moratorium on
involuntary reassignments of SES career appointees following the
appointment of a new agency head or the career appointee's most
immediate supervisor who is a noncareer appointee and who has the
authority to make an initial appraisal of the career appointee's
performance. The law also provides in Sec. 3395(e)(2) for an exception
to the moratorium by permitting involuntary reassignments during the
120-day period when the reassignment results from a final
unsatisfactory performance rating issued prior to the appointment that
triggered the moratorium. In situations which meet this criterion for
exception, it does not matter if a new agency head or noncareer
supervisor (with authority to make an initial performance appraisal) is
appointed subsequently, i.e., after issuance of a final unsatisfactory
performance rating, nor does it matter if there has been a change in
the agency official responsible for taking the reassignment action (the
language of the current regulation). The reassignment action may
proceed if the conditions for the exception are met.
In instances where there is a change in agency head, it is possible
that career appointees will be subject to more than one moratorium--
which almost certainly will not run concurrently but may overlap to
some degree, i.e., appointment of a new agency head often results in
some turnover among noncareer appointees. When applying the regulation
in these instances, it is important to look at the starting date of
each moratorium independently, in relation to the date on which the
unsatisfactory rating was issued. For example, if a final rating of
unsatisfactory is issued after the appointment of a new agency head,
the moratorium initiated by that appointment must be allowed to run its
course before any involuntary reassignment action can be effected. If a
new noncareer supervisor is appointed after the new agency head, and
also after the issuance of the unsatisfactory rating (i.e., when the
rating is issued between the appointment of the new agency head and the
new noncareer supervisor), then the second moratorium (i.e., the
moratorium triggered by the appointment of the new noncareer
supervisor) does not apply to an involuntary reassignment resulting
from the unsatisfactory rating.
Conversion From Career SES to Career SL Appointment
Senior Level (SL) positions established under 5 CFR Part 319 are in
the competitive service and are covered by OPM regulations governing
the competitive service generally. Currently, under 5 CFR
335.103(c)(1)(vi), agencies must follow competitive procedures in
agency merit promotion plans in order to reinstate a person 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. This means that career SES members
may be reinstated to competitive service positions only at the same
grade or pay level as the highest position they held previously in the
competitive service.
By law, SES and SL positions are above the GS-15 level. In nearly
all cases, career SES appointees have already competed at least
Governmentwide. This regulatory change will recognize that fact by
permitting reinstatement of career SES appointees to competitive
service positions above the GS-15 level.
Waiver of Notice of Proposed Rulemaking
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking for the following
reasons: (1) The purpose of the interim regulations pertaining to the
120-day moratorium on involuntary reassignments is to correct existing
regulations which are inconsistent with statutory provisions governing
the involuntary reassignment of career Senior Executive Service
appointees. Because this change is taken directly from statute, public
comment is unnecessary. (2) The provision pertaining to conversion of
SES career to Senior Level career appointments was originally
incorporated in proposed Promotion and Internal Placement regulations
published in the Federal Register on February 20, 1996, in Volume 61,
Number 34, page 6327. No comments were received pertaining to the
proposed regulatory change.
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact
on a substantial number of small entities
[[Page 34258]]
because it pertains only to Federal agencies and employees.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Parts 317 and 335
Government employees.
U.S. Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending 5 CFR part 317 as follows:
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
1. The authority citation for part 317 continues to read as
follows:
Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3397, 3593, and
3595.
2. In Sec. 317.901, the text in paragraph (c) and (c)(1) is
republished for the convenience of the reader, paragraph (c)(2) is
revised to read as follows:
Sec. 317.901 Reassignments.
* * * * *
(c) A career appointee may not be involuntarily reassigned within
120 days after the appointment of the head of an agency, or within 120
days after the appointment of the career appointee's most immediate
supervisor who is a noncareer appointee and who has the authority to
make an initial appraisal of the career appointee's performance under
subpart C of part 430 of this chapter.
(1) In this paragraph--
(i) Head of an agency means the head of an executive or military
department or the head of an independent establishment.
(ii) Noncareer appointee includes an SES noncareer or limited
appointee, an appointee in a position filled by Schedule C, or an
appointee in an Executive Schedule or equivalent position that is not
required to be filled competitively.
(2) These restrictions do not apply to the involuntary reassignment
of a career appointee under 5 U.S.C. 4314(b)(3) based on a final
performance rating of ``Unsatisfactory'' that was issued before the
appointment of a new agency head or a new noncareer supervisor as
defined in paragraph (c)(1) of this section. If a moratorium is already
underway at the time the final rating is issued, then that moratorium
must be completed before the reassignment action can be effected.
PART 335--PROMOTION AND INTERNAL PLACEMENT
2. The authority citation for part 335 continues to read as
follows:
Authority: 5 U.S.C. 3301, 3302, 3330, and E.O. 10577 (3 CFR
1957-58 Comp., p. 218).
3. In Sec. 335.103(c)(3) the text is republished for the
convenience of the reader, a new paragraph (c)(3)(vii) is added to read
as follows.
Sec. 335.103 Agency Promotion Programs.
* * * * *
(c) * * *
(3) Discretionary actions. Agencies may at their discretion except
the following actions from competitive procedures of this section:
* * * * *
(vii) Appointments of career SES appointees with competitive
service reinstatement eligibility to any position for which they
qualify in the competitive service at any grade or salary level,
including Senior-Level positions established under 5 CFR Part 319--
Employment in Senior-Level and Scientific and Professional positions.
[FR Doc. 98-16825 Filed 6-23-98; 8:45 am]
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