00-6626. Excepted Service; The Career Conditional Employment System; Promotion and Internal Placement

AGENCY:

Office of Personnel Management.

ACTION:

Interim regulations with request for comments.

SUMMARY:

Pursuant to Section 511 of the Veterans Millennium Health Care and Benefits Act, OPM is reissuing interim regulations, with amendments, to implement the staffing provisions of the Veterans Employment Opportunities Act (VEOA) of 1998. Among other things, the VEOA allows preference eligibles or veterans who have been honorably discharged from the armed forces after 3 or more years of active service to apply for vacancies under merit promotion procedures when an agency is accepting applications from outside its own workforce. Comments are invited.

DATES:

Interim rules are effective March 17, 2000. Comments must be received on or before April 17, 2000.

ADDRESSES:

Send or deliver written comments to: Mary Lou Lindholm, Associate Director for Employment, Office of Personnel Management, Room 6500, 1900 E Street, NW, Washington, DC 20415-9000.

FOR FURTHER INFORMATION CONTACT:

Mr. Raleigh M. Neville on [phone] or FAX [phone].

SUPPLEMENTARY INFORMATION:

Under VEOA, Congress amended 5 U.S.C. 3304 to allow eligible veterans to compete for vacancies under an agency's merit promotion procedures. The act also required OPM to create an appointing authority to permit the appointment of these veterans. However, absent specific legislation or Executive order, OPM has no authority to permit the noncompetitive appointment of candidates in the competitive service. Accordingly, OPM created an excepted appointing authority under Schedule B. This allowed eligible veterans to be appointed noncompetitively into the excepted service. OPM issued interim regulations (63 FR 66705) on December 3, 1998, to implement the VEOA.

In enacting the Veterans Millennium and Health Care and Benefits Act (Pub. L. 106-117), Congress amended the VEOA to clarify that if an eligible veteran competes under the agency's merit promotion procedures and is selected, he or she will be given a career or career conditional appointment in the competitive service.

Pub. L. 106-117 also clarified that veterans who are released from their initial tours of active duty shortly before completing the 3 years required in the statute are also eligible to compete under these provisions. (In this connection, it is customary for the military to release individuals a few days before completing 3-year tours “for the convenience of the Government.” These individuals should normally be considered eligible.)

As a result of these amendments, agencies may no longer make any new appointments under Schedule B authority YKB/Sch B 213.3202(n). However, OPM will temporarily leave the Schedule B authority in place until further notice. Veterans who were appointed under this Schedule B authority, but who did not compete under an agency merit promotion announcement, will remain under this authority until such time as they do compete and are selected. Veterans who competed under a merit promotion announcement must be converted to a career conditional or career appointment retroactive to the date of their original appointment under the VEOA. OPM is also making a technical update in § 315.801 on when probation is required. OPM is deleting the list of persons subject to probation when appointed by special authority or by conversion (the list was not complete), and including a new subsection specifying that such persons are subject to probation unless specifically exempt in the authority itself.

Waiver of Delay in Effective Date

Pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to waive the delay in effective date and make these regulations effective in less than 30 days. The delay in effective date is being waived because the provisions of the new law became effective upon enactment, November 30, 1999.

Regulatory Flexibility Act

I certify that these regulations will not have a significant impact on a substantial number of small entities (including small businesses, small organizational units and small governmental jurisdictions) because the regulations apply only to appointment procedures for certain employees in Federal agencies.

E.O. 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 213, 315, and 335

• Government employees
• Reporting and recordkeeping requirements

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending parts 213, 315, and 335 of Title 5, Code of Federal Regulations, as follows:

PART 213—EXCEPTED SERVICE

1. The authority citation for part 213 is revised to read as follows:

Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; § 213.101 also issued under 5 U.S.C. 2103; § 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h) and 8456; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 4301 et seq.; and Pub.L. 105-339.

§ 213.3202

[Amended]

2. In § 213.3202, paragraph (n) is revised to read as follows:

* * * * *

(n) Positions when filled by preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of continuous active military service and who, in accordance with the provisions of Pub.L. 105-339, applied for these positions under merit promotion procedures when applications were being accepted from individuals outside its own workforce. These veterans may be promoted, demoted, or reassigned, as appropriate, to other positions within the agency but would remain employed under this excepted authority as long as there is no break in service. No new appointments may be made under this authority after November 30, 1999.

PART 315—CAREER AND CAREER CONDITIONAL EMPLOYMENT

3. The authority citation for part 315 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577. 3 CFR, 1954-1958 Comp. P. 218, unless otherwise noted. §§ 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. §§ 315.602 and 315.604 also issued under 5 U.S.C. 1104. § 315.603 also issued under 5 U.S.C. 8151. § 315.605 also issued under E.O. 120034, 3 CFR, 1978 Comp. p. 111. § 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. § 315.607 also issued under 22 U.S.C. 2506. § 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp., p. 293. § 315.610 also issued under 5 U.S.C. 3304(d). § 315.611 also issued under Section 511, Pub. L. 106-117. § 315.710 also issued under E.O. 12596, 3 CFR, 1987, Comp., p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp., p. 264.

§ 315.611

[Added]

4. A new section 315.611 is added to subpart F to read as follows:

Subpart F—Career or Career-Conditional Appointment Under Special Authorities

* * * * *

§ 315.611

Appointment of certain veterans who have competed under agency merit promotion announcements.

(a) Agency authority. An agency may appoint a preference eligible or a veteran who has substantially completed at least 3 years of continuous active military service provided

(1) The veteran was selected from among the best qualified following competition under a merit promotion announcement open to candidates outside the agency's workforce; and

(2) The veteran's most recent separation from the military was under honorable conditions.

(b) Definitions. “Agency” in this context means an executive agency as defined in 5 U.S.C. 105. The agency determines in individual cases whether a candidate was released “shortly before” completing the required 3 years and should therefore be eligible for appointment.

§ 315.801

[Revised]

5. In § 315.801 paragraph (a) is revised and a new paragraph (e) is added to read as follows:

Subpart H—Probation on Initial Appointment to a Competitive Position

§ 315.801

Probationary period; when required.

(a) The first year of service of an employee who is given a career or career-conditional appointment under this part is a probationary period when the employee:

(1) Was appointed from a competitive list of eligibles established under subpart C of this part;

(2) Was reinstated under subpart D of this part unless during any period of service which affords a current basis for reinstatement, the employee completed a probationary period or served with competitive status under an appointment which did not require a probationary period.

* * * * *

(e) A person who is appointed to the competitive service either by special appointing authority or by conversion under subparts F or G of this part serves a 1-year probationary period unless specifically exempt from probation by the authority itself.

PART 335—PROMOTION AND INTERNAL PLACEMENT

6. The authority citation for part 335 is revised to read as follows:

Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 5 U.S.C. 3304 (f), and Pub.L. 106-117.

§ 335.106

[Revised]

7. Section 335.106 is revised to read as follows:

§ 335.106

Special selection procedures for certain veterans under merit promotion.

Preference eligibles or veterans who have been separated under honorable conditions from the armed forces after completing (as determined by the agency) 3 or more years of continuous active military service may compete for vacancies under merit promotion when an agency accepts applications from individuals outside its own workforce. Those veterans selected will be given career or career conditional appointments under § 315.611 of this chapter.