[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Rules and Regulations]
[Pages 59875-59876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29768]
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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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Federal Register / Vol. 63, No. 215 / Friday, November 6, 1998 /
Rules and Regulations
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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: Final regulations.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations that adopt without change interim regulations that
corrected previous regulations which were inconsistent with statutory
provisions that govern 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. These regulations also authorize agencies to
reinstate SES career appointees who have competitive service
reinstatement eligibility to career appointments in competitive service
positions for which they qualify, including Senior Level (SL)
positions.
EFFECTIVE DATE: December 7, 1998.
FOR FURTHER INFORMATION CONTACT: Mr. Bede Bender (202) 606-1784.
SUPPLEMENTARY INFORMATION:
120-Day Moratorium on Involuntary Reassignments
On June 24, 1998, the Office of Personnel Management (OPM)
published interim regulations (63 FR 34257) to correct existing
regulations that were inconsistent with statutory provisions governing
the 120-day moratorium on involuntary reassignments of Senior Executive
Service (SES) career appointees. 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., the 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
The interim regulations published on June 24, 1998, also expanded
the eligibility of SES career appointees for reinstatement to Senior
Level (SL) positions. SL positions established under 5 CFR Part 319 are
in the competitive service and are covered by OPM regulations governing
the competitive service generally. Formerly, under 5 CFR
335.103(c)(1)(vi), agencies were required to follow competitive
procedures in agency merit promotion plans in order to reinstate a
person to a permanent or a 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 meant that career SES members
could 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 recognized that fact by
permitting reinstatement of career SES appointees to competitive
service positions above the GS-15 level.
The 30-day comment period expired on August 24, 1998. OPM did not
receive any comments during the comment period. Therefore, the interim
rule is being adopted as a final rule.
Regulatory Flexibility Act
I certify that these regulations will not have a significant impact
on a substantial number of small entities because they will apply 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, under the authority in 5 U.S.C. 3392, 3393, 3393a,
3395, 3397, 3593, and 3595, the interim regulations
[[Page 59876]]
amending 5 CFR Parts 317 and 335 (63 FR 34257) published on June 24,
1998, are adopted as final without any changes.
[FR Doc. 98-29768 Filed 11-5-98; 8:45 am]
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