[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25704]
[[Page Unknown]]
[Federal Register: October 18, 1994]
VOL. 59, NO. 200
Tuesday, October 18, 1994
OFFICE OF PERSONNEL MANAGEMENT
RIN 3206-AG14
5 CFR Parts 214, 317, 319, 359, and 534
Executive Positions and Employment
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed
regulations governing employment Procedures for Senior Executive
Service, senior-level, and scientific and professional positions as
part of the implementation of Federal Personnel Manual (FPM) sunset.
The regulations incorporate certain requirements that currently exist
only in the provisionally retained FPM and that would otherwise be
abolished after December 31, 1994, when the provisionally retained
material sunsets.
DATES: Comments on the proposed regulations must be received on or
before December 19, 1994.
ADDRESSES: Send or deliver written comments to Assistant Director,
Office of Executive Resources, HRDG, Room 6484, 1900 E Street NW.,
Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
Neal Harwood at 202-606-2826.
SUPPLEMENTARY INFORMATION: These proposed regulations affect senior-
level (SL), scientific and professional (ST), and Senior Executive
Service (SES) positions and employment.
One of the recommendations of the September 1993 Report of the
National Performance Review (From Red Tape to Results: Creating a
Government that Works Better and Costs Less) Was that the Federal
Personnel Manual (FPM) should be ``sunset.'' Following consultation
with agencies and other interested parties, the Director of the Office
of Personnel Management (OPM) issued a memorandum abolishing the FPM as
of December 31, 1993. Portions of the FPM and FPM supplements, however,
were provisionally retained until December 31, 1994.
The proposed regulations would continue certain requirements and
authorities that are currently in the provisionally retained FPM
material and that would otherwise go out of existence as of December
31, 1994, because they are not specified in existing regulations or
statute. No new requirements would be imposed on agencies under the
regulations.
Decisions on what to place in the proposed regulations were based
on whether the requirement or authority was necessary to continue
existing flexibilities (e.g., delegations of authority to agencies), to
assure uniformity in executive personnel operations where needed, and/
or to protect employee rights. The proposals take into account the
recommendation in the Report of the National Performance Review for a
``corporate approach to managing executive resources.'' Under such an
approach, there are some basic features of executive personnel systems
that need to be administered uniformly on a Governmentwide basis.
The proposed regulations also clarify certain existing regulatory
provisions and delete out-of-date provisions.
Draft copies of the proposed regulations were provided agencies and
the Senior Executives Association (SEA). We received comments from nine
agencies and the SEA. Several of the agencies expressed concern about
the level of detail in the regulations and recommended that procedural
requirements be placed in some other issuance, such as the handbook on
Executive Resources Management that OPM is planning to issue. SEA, on
the other hand, while agreeing with much of what was in the draft,
expressed concerns about certain current FPM requirements that had been
modified or deleted in the regulations.
With the abolishment of the FPM, procedural requirements now have
to be in regulation or an operations manual if they are not in statute.
Our planned handbook on Executive Resources Management is not an
operations manual and will be guidance only, except where it repeats
requirements already in statute or regulation. Therefore, if something
is to be required, it must be in regulation if it does not already
exist in statute. We have tried to hold these requirements to a
minimum, but a basic regulatory framework (including certain procedural
requirements) is necessary to assure an executive personnel system that
meets statutory requirements and carries out merit system principles.
In order to help us balance NPR's streamlining and flexibility
initiatives with its call for a corporate approach to managing
executive resources, please provide specifics on why a particular
provision should or should not be included in any comments.
The proposed regulations are summarized below, along with
references to where in the provisionally retained FPM material the
provisions are currently located. In the references, ``Ch'' refers to a
chapter in the basic FPM; and ``Supp'' refers to FPM Supplement 920-1,
Operations Handbook for the Senior Executive Service.
Part 214--Senior Executive Service
(1) Section 214.203, Reporting requirement. The section is added to
require that agencies provide such data on SES positions and employees
as OPM may request, in accordance with Civil Service Rule 5.2(a).
[Supp. S14-3]
(2) Section 214.204, Interchange agreements. The section is added
to state the authority of OPM and agencies to enter into interchange
agreements between the SES and agency executive personnel systems.
[Supp. S13-5]
Part 317--Employment in the Senior Executive Service
(1) Section 317.301, Conversion coverage. Paragraph (a)(4) is
redesignated (a)(5) and new paragraph (a)(4) is added to deal with
situations where OPM makes a determination that an agency previously
excluded from the SES on the basis it did not meet the definition of
``Executive agency'' does in fact meet the definition. This would allow
the conversion provisions of the section to apply, and career and
career-type employees could convert to career SES appointments without
further competition.
(2) Section 317.401, General. Paragraph (b) is added to require
that qualifications standards be established prior to a vacancy
announcement in a merit staffing action and prior to appointment in
other cases. [Supp. S5-2a(3)]
(3) Section 317.501, Recruitment and selection for initial SES
career appointment. Paragraph (a) is revised to reference existing
merit staffing requirements in the section. Paragraph (b)(2) is revised
to require that vacancies must be included in OPM's biweekly listing of
SES vacancies for at least 14 calendar days. [Supp. S5-4b(2)(c)]
Paragraph (f) is added to state OPM's authority to review agency merit
staffing actions and direct corrective action where necessary. [Supp.
S5-4h]
(4) Section 317.502, Qualifications Review Board (ORB)
certification. Paragraph (b) provides that QRB cases must be received
by OPM within 12 months [compared with 9 months in Supp. S5-4d(3)] of
the closing date of the announcement, unless the time period is
extended by OPM. Paragraph (d) is revised to clarify OPM's authority
regarding the disposition of QRB cases when an agency head has changed
or will be changing, or when there is a Presidential transition. [Supp.
S5-4d(7)] New paragraph (e) states that OPM will not submit to a QRB
the conversion of a noncareer SES employee to a career SES appointment
in the employee's own position since there is no bona fide vacancy.
[Former FPM Letter 273-4]
(5) Section 317.503, Probationary period. Paragraphs (c) and (d)
are redesignated (d) and (e). New paragraph (c) states the conditions
for crediting service towards completion of the probationary period.
[Supp. S5-4g(5)] New paragraph (f) states the conditions when an
employee separates from the SES before completion of the probationary
period and later receives a new SES career appointment. [Supp. S5-
4g(6)]
(6) Subpart F, Noncareer and Limited Appointments. The subpart,
which now covers only limited appointments, is revised to also cover
noncareer appointments.
Sections 317.601 and 317.604 are revised to provide that agencies
may appoint or reassign noncareer appointees only with the prior
approval of OPM unless otherwise provided by OPM. [Supp. S4-3d(2) and
S5-7b(2)]
Section 317.601 also is revised to provide a pool of limited
appointment authorities equal to two percent of an agency's SES
position allocation (with a minimum of one authority for each agency)
that agencies can use without getting prior OPM approval as long as the
appointee is currently a career or career-type appointee outside the
SES. (Limited appointment authorities already approved by OPM at the
time the pool goes into effect would not be counted against the pool.)
Where the pool is not available (e.g., for appointment of an individual
from outside the Federal service or when all the pool spaces have been
used), agencies would still have to get prior OPM approval unless
otherwise provided by OPM. (Under the regulations OPM could still
authorize an individual agency to make limited appointments on its own
under specified circumstances, e.g., to bring in persons from
universities on a rotating basis.) In using the pool, agencies would
have to comply with all other statutory and regulatory provisions
affecting limited appointments, e.g., that an appointment may be made
only to a general position and that the appointee must meet the
qualifications standard for the position. The regulation provides that
OPM may suspend the pool authority if necessary, either Governmentwide
or for an individual agency (e.g., if total appointments under the pool
and as approved by OPM are nearing the statutory five percent limit on
limited appointments Governmentwide or an agency is not making
appointments in accordance with statutory and regulatory provisions).
Section 317.605 is revised to provide that a noncareer or limited
appointee may be terminated at any time (unless a limited appointee is
covered under adverse action procedures), but must be given at least a
1-day notice. [Supp. S10-6b(1)]
(7) Section 317.703, Guaranteed reinstatement: Presidential
appointees. New paragraph (a)(2) states what Presidential appointees
have to do to maintain reinstatement rights to the SES if they receive
a new Presidential appointment. [Supp. S11-5b(2)]
(8) Section 317.801, Retention of SES provisions.
Paragraph (b) is revised. The paragraph describes the procedures
under which career SES appointees may elect to retain certain SES
benefits when they take appointments at Executive Level V or higher.
New paragraph (b)(2) states that the appointing agency is responsible
for informing the appointee of the election opportunity and that the
election must be in writing. [Supp. S5-9b(2)] New paragraph (b)(3)
states that if the appointee elects to retain SES basic pay, the
appointee is eligible for locality pay and special law enforcement pay
that would otherwise be received as an SES member, in accordance with
the provisions of the Federal Employees Pay Comparability Act of 1990
(FEPCA), Public Law 101-509.
Paragraph (d), relating to the retroactive election of SES benefits
by certain former career SES appointees under Public Law 101-335 of
July 17, 1990, and Public Law 102-378 of October 2, 1992, is deleted
since any such election has already been made.
(9) Section 317.901, Reassignments.
Paragraph (d) is added to state the authority of agencies to run
15-day (nongeographic) and 60-day (geographic) advance notices on
reassignments of career SES appointees concurrently with the 120-day
moratorium on involuntary reassignments. [Supp. S5-5c(4)(b)] If the
notice could not be issued until after the moratorium, the moratorium
in effect would be extended by the length of the notice period. Note
that there is nothing in the regulations to prevent recision of a
reassignment notice once it is issued based on the executive's
performance during the remainder of the moratorium period.
We are not placing in the regulations the provision in Supp. S5-
5c(4)(c) that if a 15 or 60-day advance notice of reassignment is
issued before the 120-day moratorium began, an involuntary reassignment
may not be effected until the moratorium has ended. Agencies, however,
still may delay the reassignment until after the moratorium if they
want. Note that it would not be in accord with the moratorium provision
for a proposed agency head or noncareer supervisor to have some other
official issue a reassignment notice prior to appointment to avoid
application of the moratorium.
(10) Section 317.903, Details. Paragraph (b) on time limits has
been revised to incorporate, with certain modifications, provisions in
Supp. S5-8c. The intent of the proposals is to reduce the paperwork
currently associated with details and to provide agencies greater
flexibility in temporarily staffing SES positions, while still
recognizing that the SES is a separate service and protecting the
rights of employees.
The regulations provide that an SES employee may not be detailed to
unclassified duties for more than 240 days (currently 120 days in the
Supp.). If the detail is for more than 240 days to a position at the
GS-15 level or below, prior OPM approval must be obtained (same as in
the Supp.).
The regulations also provide that there must be competition when
detailing a non-SES employee to an SES position for more than 240 days
(currently 120 days in the Supp.). However, an employee who is eligible
for a noncompetitive career SES appointment, e.g., an employee who has
SES reinstatement eligibility or who has been certified by a QRB
following completion of an SES candidate development program, is not
subject to the competitive requirement. As currently provided in the
Supp., when competition is required agencies may use the merit
promotion procedures under 5 CFR part 335, or their SES merit staffing
procedures, although it is not necessary to open competition outside
the agency.
The regulations do not require prior OPM approval after 240 days
when detailing a non-SES employee to an SES position, as currently
provided in the Supp., unless the position to which the employee is
detailed supervises other SES positions. We anticipate that providing
agencies with a pool of limited appointment authorities under section
317.601 will make it easier for agencies to use limited appointments
rather than details when a career or career-type employee from outside
the SES is serving temporarily in an SES position.
Part 319--Employment in Senior-Level and Scientific and Professional
Positions
Part 319 currently delegates to agency heads a variety of
authorities relating to senior-level (SL) and scientific and
professional (ST) positions and employees based on criteria established
in the FPM. In order to continue the delegations following FPM sunset,
we are proposing to incorporate the criteria in the regulations. Under
5 U.S.C. 1104, OPM is required to establish standards which shall apply
to the activities of any agency under delegated authority and to
establish and maintain an oversight program to assure that activities
under delegated authorities are in accordance with merit system
principles. Delegated authorities may be redelegate by agency heads.
We also are proposing to delete current section 319.103 on
conversion to the SL and ST systems under FEPCA since all conversion
actions have already taken place.
(1) Subpart A, General. The subpart contains provisions on coverage
[Ch. 319, 2-1 and 3-1], applicability of regulatory provisions relating
to the competitive and excepted services in general [Ch. 319, 2-1e],
and reporting requirements [Ch. 319, 1-3].
(2) Subpart B, Position Allocations and Establishment. The subpart
requires agencies to receive an allocation from OPM for their SL and ST
positions in accordance with 5 U.S.C. 3104 and 5108. It delegates
authority to agencies to establish individual SL and ST positions
within their allocation in accordance with prescribed criteria. [Ch.
319, 2-2 and 3-2]
(3) Subpart C, Qualifications Requirements. The subpart delegates
authority to agencies to establish qualifications standards and to
approve the qualifications of individual appointees in accordance with
prescribed criteria. [Ch. 319, 2-4, 3-3, and A-1]
(4) Subpart D, Recruitment and Examination.
The subpart delegates authority to agencies to recruit and examine
applicants and establish civil service registers for SL positions in
the competitive service in accordance with prescribed criteria. [Ch.
319, 2-5b and A-2] The criteria implement provisions in statute (5
U.S.C. chapter 33, subchapter I) and elsewhere in the regulations for
examination, certification, and selection of individuals who do not
have status in the competitive service. These criteria include rating
applicants on a 70 to 100-point scale, with veterans preference points
(5 CFR 337.101), and applying the ``rule of three'' in selection (5 CFR
part 332, subpart D). Actions to fill SL positions in the competitive
service by reassignment, promotion, transfer, or reinstatement of
individuals with status are subject to the regulatory provisions
applicable to those actions in general (e.g., 5 CFR part 335 for
promotions).
Under 5 U.S.C. 3325, ST positions are filled without competitive
examination. The subpart provides that since the positions are not
filled by competitive examination, citizenship and probationary period
requirements are not applicable. [Ch. 319, 2-5d and 3-4d]
Part 359, Removal From the SES; Guaranteed Placement in Other Personnel
Systems
(1) Subpart F, Reduction in Force.
Section 359.601(b) is revised by adding a definition of ``agency''
in paragraph (3) as an executive department or independent
establishment. Thus for RIF purposes the entire Department of Defense
is treated as one agency, although this still allows initial
competition to be held in separate components. [Supp. S10-7a(3)]
Section 359.602(a)(2) on competitive procedures is revised to
provide that final performance ratings, not interim ratings, must be
used in determining retention standing. Ratings for more than 1 year
may be considered. [Supp. S10-7d(5)] Section 359.602(a)(4) is added to
provide certain exceptions to the use of competitive procedures when an
agency is being abolished. [Supp. S10-7d(1)(b)]
Sections 359.603 (a)(1) and (d)(2) are revised to permit the agency
head to delegate to an official at the Assistant Secretary level or
above in departments, or an equivalent official above the director of
personnel in other agencies, the authority to certify to OPM that the
agency does not have an SES position for a RIF'd employee or that a
RIF'd employee referred by OPM is not qualified for the referred
position. Current regulations do not permit any delegation. Agencies
have pointed out that sometimes it is difficult to get the agency head
to act in a timely manner because of other activities where the agency
head is involved, and they have indicated the same problem would arise
if delegation was limited to the deputy agency head. We believe the
proposed condition on the degree of delegation will allow more
efficient conduct of the RIF program while providing that
determinations are reviewed at a high enough level to assure that
employee rights are protected.
Section 359.603(a)(4) is added to state explicitly that a RIF'd
employee remains a career SES appointee during the OPM placement
period. [Supp. S10-7e(1)(f)]
Section 359.603(d)(3) is added to cover situations where an agency
cancels a position to which a RIF'd employee was referred by OPM.
[Supp. S11-3f(4)(d)]
Section 359.603(f) is revised to state that OPM placement efforts
will cease if an employee declines a reasonable offer of placement.
[Supp. S11-3c(4)]
Section 359.605 is revised to bring the notice requirements
following a RIF into accordance with those in Supp. S10-7g.
(2) Subpart G, Guaranteed Placement.
In section 359.705, new paragraph (b) provides that an employee who
is placed in another agency under the subpart is entitled to saved pay
under 5 U.S.C. 3594. [Supp. S10-8d(2)]
New Section 359.705(c) provides that the Executive Level V cap that
normally applies to General Schedule basic pay does not apply if the
employee is receiving saved pay under 5 U.S.C. 3594. Thus the employee
could save his or her full SES basic pay even if it was above the rate
of Executive Level V. [Supp. S10-8d(3)] Note, however, that there is no
provision in statute for retaining locality pay upon removal from the
SES. Therefore, the employee is entitled only to any locality pay for
the position in which placed outside the SES. If the position is in the
General Schedule, the Executive Level IV cap on combined basic pay and
locality pay in 5 U.S.C. 5304(g)(1) would be applicable.
New section 359.705(e) states the conditions under which saved pay
is terminated. This is a matter not covered in existing regulations.
The termination provisions are similar to those for termination of pay
retention in 5 CFR 536.209.
(3) Subpart H, Furlough in the SES. Section 359.803 is revised to
indicate that 22 workdays are equivalent to 30 calendar days. [Supp.
S10-9b and c]
Part 534, Subpart D, Pay and Performance Awards Under the SES
(1) Section 534.401, Definitions and setting individual basic pay.
Paragraph (f) is added to incorporate from FPM Letter 920-22 provisions
restricting the reduction in pay of career SES members to performance
and disciplinary reasons.
(2) Section 534.403 Performance awards.
Paragraph (a)(1) is revised to include eligibility criteria
currently in Supp. S9-3b.
Paragraph (a)(4) is added to state the final authority of the
agency head to determine who receives a performance award and the
amount of the award. [Supp. S9-3f]
Paragraph (c) is revised to state that the minimum and maximum
limits of 5 and 20 percent of basic pay for individual awards do not
include locality pay. Per 5 U.S.C. 5304(c)(2)(A), locality pay is
considered part of basic pay only when provided by law or regulation. 5
U.S.C. 4505a(a)(2)(B) specifically provides that the rate of basic pay
for computing performance awards outside the SES be determined without
taking into account locality pay. The proposed regulation provides the
same exclusion for the SES.
Paragraph (f) is revised to provide that if the full performance
award cannot be paid because of the Executive Level I ceiling on
aggregate compensation and the excess amount is carried over to the
next calendar year, the full award is charged against the agency's
bonus pool for the fiscal year in which the initial payment was made.
[Supp. S9-3g(2)]
(3) Section 534.405, Restrictions on premium pay and compensatory
time. This section is added. Paragraph (a) notes the statutory
prohibition on premium pay, including overtime pay, for SES members.
Paragraph (b) provides that since SES members are not eligible for
overtime pay, they also may not receive compensatory time, except for
religious purposes. [Supp. S12-1b]
E.O. 12866, Regulatory Planning and Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it will only
affect Federal Government employees who are in executive positions.
List of Subjects
5 CFR Parts 214, 317, 319, and 359
Government employees.
5 CFR Part 534
Government employees, hospitals, students, wages.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM proposes to amend 5 CFR Parts 214, 317, 319, 359,
and 534 as follows:
PART 214--SENIOR EXECUTIVE SERVICE
1. The authority citation for part 214 continues to read as
follows:
Authority: 5 U.S.C. 3132.
Subpart B--General Provisions
2. In subpart B, Sec. 214.203 and Sec. 214.204 are added to read as
follows:
Sec. 214.203 Reporting requirements.
Agencies shall report such information as may be requested by OPM
relating to positions and employees in the Senior Executive Service.
Sec. 214.204 Interchange agreements.
(a) In accordance with 5 CFR 6.7, OPM and agency with an executive
personnel system essentially equivalent to the Senior Executive Service
(SES) may, pursuant to legislative and regulatory authorities, enter an
agreement providing for the movement of persons between the SES and the
other system. The agreement shall define the status and tenure that the
persons affected shall acquire upon the movement.
(b) Persons eligible for movement must be serving in permanent,
continuing positions with career or career-type appointments. They must
meet the qualifications requirements of any position to which moved.
(c) An interchange agreement may be discontinued by either party
under such conditions as provided in the agreement.
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
3. The authority citation for part 317 continues to read as
follows:
Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3397, 3593, and
3595.
Subpart C--Conversion to the Senior Executive Service
4. In subpart C, Sec. 317.301 is amended by redesignating paragraph
(a)(4) as paragraph (a)(5) and by adding a new paragraph (a)(4) to read
as follows:
Sec. 317.301 Conversion coverage.
(a) * * *
(4) The implementation of the SES in a formerly excluded agency
when OPM determines that the agency is an ``Executive agency'' under 5
U.S.C. 3132(a)(1).
* * * * *
Subpart D--Qualifications Standards
5. In subpart D, the current paragraph in Sec. 317.401 is
designated as paragraph (a), and paragraph (b) is added to read as
follows:
Sec. 317.401 General.
* * * * *
(b) A written qualification standard must be established for a
position before any appointment is made to the position. If a position
is being filled competitively, the standard must be established before
the position is announced.
Subpart E--Career Appointments
6. In subpart E, Sec. 317.501 is amended by revising the last
sentence of paragraph (a), revising paragraph (b)(2), and by adding
paragraph (f) to read as follows:
Sec. 317.501 Recruitment and selection for initial SES career
appointment.
(a) * * * The ERB shall, in accordance with the requirements of
this section, conduct the merit staffing process for initial SES career
appointment.
(b) * * *
(2) Announcements of SES vacancies to be filled by initial career
appointment must be listed in OPM's publication of SES vacancies for at
least 14 calendar days, including the date of publication.
* * * * *
(f) OPM review. OPM may review proposed career appointments to
ensure that they comply with all merit staffing requirements and are
free of any impropriety. An agency shall take such action as OPM may
require to correct an action contrary to any law, rule, or regulation.
7. Section 317.502 is amended by revising the last sentence of
paragraph (b), revising paragraph (d), redesignating paragraph (e) as
paragraph (f), and by adding a new paragraph (e) to read as follows:
Sec. 317.502 Qualifications Review Board certification.
* * * * *
(b) * * * Requests must be received by OPM within 12 months from
the closing date of a vacancy announcement, or in the case of an SES
candidate development program, within 12 months from the date of
completion of the program, unless the time period is extended by OPM.
* * * * *
(d) OPM may determine the disposition of agency QRB requests where
the QRB has not yet acted if the agency head leaves office or announces
an intention to leave office, if the President has nominated a new
agency head, or if there is a Presidential transition.
(e) OPM will not submit to a QRB any action to convert a noncareer
SES employee to a career SES appointment in the employee's current
position or a successor to that position.
* * * * *
8. Section 317.503 is amended by removing the last sentence in
paragraph (b), redesignating paragraphs (c) and (d) as paragraphs (d)
and (e) respectively, and adding a new paragraph (c) and paragraph (f)
to read as follows:
Sec. 317.503 Probationary period.
* * * * *
(c) The following conditions apply to crediting service towards
completion of the probationary period.
(1) Time on leave with pay while in an SES position is credited.
Earned leave for which the employee is compensated by lump-sum payment
upon separation is not credited.
(2) Time in a nonpay status while in an SES position is credited up
to a total of 30 calendar days (or 22 workdays). After 30 calendar
days, the probationary period is extended by adding to it time equal to
that served in a nonpay status.
(3) Time absent on military duty or due to compensable injury is
credited upon restoration to the SES when no other break in SES service
has occurred.
(4) Time following transfer to an SES position in another agency is
credited, i.e., the individual does not have to start a new
probationary period.
* * * * *
(f) An individual who separated from the SES during the
probationary period and who has been out of the SES more than 30
calendar days must serve a new 1-year probationary period upon
reappointment and may not credit previous time in a probationary
period. In the following situations, however, there is an exception and
the individual is only required to complete the remainder of the
previously served probationary period.
(1) The individual left the SES without a break in service for a
Presidential appointment and is exercising reinstatement rights under 5
U.S.C. 3593(b).
(2) The individual left the SES without a break in service for
other civilian employment that provides a statutory or regulatory
reemployment right to the SES when no other break in service occurred.
(3) The break in SES service was the result of military duty or
compensable injury, and the time credited under paragraph (c)(3) of
this section was not sufficient to complete the probationary period.
Subpart F--Noncareer and Limited Appointments
9. In subpart F, the heading for the subpart is revised to read as
follows:
10. Section 317.601 is revised to read as follows:
Sec. 317.601 Authorization
(a) An agency may make a noncareer or limited appointment only to a
general position.
(b) Each use of a noncareer appointment authority must be approved
individually by the Office of Personnel Management, and the authority
reverts to the Office upon departure of the incumbent, unless otherwise
provided by the Office.
(c) Use of a limited appointment authority is subject to the
conditions in this paragraph.
(1) Agencies are provided a pool of limited appointment authorities
equal to two percent of their Senior Executive Service (SES) position
allocation, or one authority, whichever is greater. An agency may use
the pool to make a limited appointment only of an individual who has a
career or career-conditional appointment (or an appointment of
equivalent tenure) in a permanent civil service position outside the
SES. If necessary, the Office of Personnel Management may suspend use
of the pool authority.
(2) Each use of a limited appointment authority other than under
paragraph (c)(1) of this section must be approved individually by the
Office, and the authority reverts to the Office upon departure of the
incumbent, unless otherwise provided by the Office.
11. Section 317.602 is amended by revising the heading and removing
the first sentence in paragraph (a) to read as follows:
Sec. 317.602 Conditions of a limited appointment.
* * * * *
12. Section 317.603 is amended by revising the heading and the
first sentence to read as follows:
Sec. 317.603 Selection.
An agency may make a noncareer or limited appointment without the
use of merit staffing procedures.* * *
13. Section 317.604 is amended by revising the heading, designating
the first paragraph as paragraph (b), redesignating paragraphs (a) and
(b) as paragraphs (b)(1) and (b)(2) respectively, and by adding a new
paragraph (a) to read as follows:
Sec. 317.604 Reassignment.
(a) An agency may reassign a noncareer appointee only with the
prior approval of the Office unless otherwise provided by the Office.
* * * * *
14. Section 317.605 is amended by revising paragraphs (a) and (b)
to read as follows:
Sec. 317.605 Tenure of appointees.
(a) A noncareer or limited appointee does not acquire status within
the Senior Executive Service on the basis of the appointment.
(b) An agency may terminate a noncareer or limited appointment at
any time, unless a limited appointee is covered under 5 CFR
752.601(c)(2). The agency must give the noncareer or limited appointee
a written notice at least 1 day prior to the effective date of the
removal.
* * * * *
Subpart G--SES Career Appointment by Reinstatement
15. In subpart G, Sec. 317.703 is amended by designating the
material after the heading in paragraph (a) as paragraph (a)(1) and
adding a new paragraph (a)(2) to read as follows:
Sec. 317.703 Guaranteed reinstated: Presidential appointees.
(a) * * *
(2) If an individual is serving under a Presidential appointment
with reinstatement entitlement and receives another Presidential
appointment without a break in service between the two appointments,
the individual continues to be entitled to be reinstated to the SES
following termination of the second appointment. If there is an interim
period between the two Presidential appointments, the individual must
be reinstated as an SES career appointee before the effective date of
the second appointment to preserve reinstatement entitlement following
termination of the second appointment.
* * * * *
Subpart H--Retention of SES Provisions
16. In subpart H, Sec. 317.801 is amended by revising the heading
for paragraph (b), designating the material after the heading in
paragraph (b) as paragraph (b)(1), adding paragraphs (b)(2) and (b)(3),
and by removing paragraph (d) to read as follows:
Sec. 317.801 Retention of SES Provisions.
* * * * *
(b) Election.
* * * * *
(2) The appointing agency is responsible for advising the appointee
of the election opportunity. The election decision must be in writing.
(3) If an appointee elects to retain SES basic pay, the appointee
is entitled to receive locality-based comparability payments under 5
CFR, part 531, subpart F, if such pay is applicable to SES employees in
the locality pay area, and any applicable special pay adjustment for a
law enforcement officer under 5 CFR part 531, subpart C, even though
the appointee may be in an Executive Schedule position otherwise
excluded from such payments.
Subpart I--Reassignments, Transfers, and Details
17. In subpart I, Sec. 317.901 is amended by adding paragraph (d)
to read as follows:
Sec. 317.901 Reassignments.
* * * * *
(d) A 15 or 60-day advance notice described in paragraph (b) of
this section may be issued during the 120-day moratorium on the
involuntary reassignment of a career appointee described in paragraph
(c) of this section, but an involuntary reassignment may not be
effected until the moratorium has ended.
18. Section 317.903 is amended by revising paragraph (b)(2) and by
adding paragraphs (b)(3) and (b)(4) to read as follows:
Sec. 317.903 Details.
* * * * *
(b) * * *
(2) An agency may not detail an SES employee to unclassified duties
for more than 240 days.
(3) An agency must use competitive procedures when detailing a non-
SES employee to an SES position for more than 240 days unless the
employee is eligible for a noncompetitive career SES appointment.
(4) An agency must obtain OPM approval for a detail of more than
240 days if the detail is of:
(i) A non-SES employee to an SES position that supervises other SES
positions; or
(ii) An SES employee to a position at the GS-15 or equivalent level
or below.
19. Part 319 is revised to read as follows:
PART 319--EMPLOYMENT IN SENIOR-LEVEL AND SCIENTIFIC AND
PROFESSIONAL POSITIONS
Subpart A--General
Sec.
319.101 Coverage.
319.102 Senior-level positions.
319.103 Scientific and professional positions.
319.104 Applicable instructions.
319.105 Reporting requirements.
Subpart B--Position Allocations and Establishment
319.201 Coverage.
319.202 Allocation of positions.
319.203 Establishment of positions.
Subpart C--Qualifications Requirements
319.301 Qualifications standards.
319.302 Individual qualifications.
Subpart D--Recruitment and Examination
319.401 Senior-level positions.
319.402 Scientific and professional positions.
Authority: 5 U.S.C. 1104, 3104, 3324, 3325, 5108, and 5376.
Subpart A--General
Sec. 319.101 Coverage.
(a) This part covers senior-level (SL) and scientific and
professional (ST) positions that are classified above GS-15 and are
paid under 5 U.S.C. 5376. See 5 CFR part 534, subpart E, for pay
provisions.
(b) Positions that meet the criteria for placement in the Senior
Executive Service (SES) under 5 U.S.C. 3132(a) may not be placed in the
SL or ST system and are not covered by this part.
Sec. 319.102 Senior-level positions.
(a) SL positions are positions classified above GS-15 pursuant to 5
U.S.C. 5108 that are not covered by other pay systems (e.g. the SES and
ST systems).
(b) Positions in agencies that are excluded from 5 U.S.C. chapter
51 (Classification) under section 5102(a), or positions that meet one
of the exclusions in section 5102(c), are excluded from the SL system.
(c) SL positions in the executive branch are in the competitive
service unless the position is excepted by statute, Executive order, or
the Office of Personnel Management (OPM).
Sec. 319.103 Scientific and professional positions.
(a) ST positions are established under 5 U.S.C. 3104 to carry out
research and development functions that require the services of
specially qualified personnel.
(b) Research and development functions are defined in appendix 2 of
the Introduction to the Position Classification Standards.
(c) An ST position must be engaged in research and development in
the physical, biological, medical, or engineering sciences, or a
closely related field.
(d) ST positions are in the competitive service.
Sec. 319.104 Applicable instructions.
Provisions in statute, Executive order, or regulations that relate
in general to competitive and excepted service positions and employment
apply to positions and employment under the SL and ST systems unless
there is a specific provision to the contrary.
Sec. 319.105 Reporting requirements.
Agencies shall report such information as may be requested by OPM
relating to SL and ST positions and employees.
Subpart B--Position Allocations and Establishment
Sec. 319.201 Coverage.
This section applies to SL positions in an executive agency per 5
U.S.C. 5108 and ST positions in any agency per 5 U.S.C. 3104.
Sec. 319.202 Allocation of positions.
SL and ST positions may be established only under a position
allocation approved by OPM.
Sec. 319.203 Establishment of positions.
(a) Prior approval of OPM is not required to establish individual
SL and ST positions within an allocation, but the positions must be
established in accordance with the standards and procedures in
paragraph (b) of this section. OPM reserves the right to require the
prior approval of individual positions if the agency is not in
compliance with these standards and procedures.
(b) Before an SL or ST position may be established, an agency must:
(1) Prepare a description of the duties, responsibilities, and
supervisory relationships of the position; and
(2) Determine, consistent with published position classification
standards and guides and accepted classification principles, that the
position is properly classified above GS-15. In addition, for an ST
position an agency must determine that the position meets the
functional research and development criteria described in Sec. 319.103.
Subpart C--Qualifications Requirements
Sec. 319.301 Qualifications standards.
(a) General. Agency heads are responsible for establishing
qualifications standards in accordance with the criteria in this
section.
(1) The standard must be in writing and identify the breadth and
depth of the knowledges, skills, and abilities, or other
qualifications, required for successful performance in position.
(2) Each criterion in the standard must be job related.
(3) The standard may not include any criterion prohibited by law or
regulation.
(b) Standards for senior-level positions.
(1) The standard must be specific enough to enable applicants to be
rated and ranked according to their degree of qualifications when the
position is being filled on a competitive basis.
(2) The standard may not include a minimum length of experience or
minimum education requirement beyond that authorized for similar
positions in the General Schedule.
(c) Standards for scientific and professional positions. (1) Unless
the agency obtains the approval of OPM, the standard must provide that
the candidate have at least 3 years of specialized experience in, or
closely related to, the field in which the candidate will work. At
least 1 year of this experience must have been in planning and
executing difficult programs of national significance or planning and
executing specialized programs that show outstanding attainments in the
field of research or consultation.
(2) Agencies may require that at least 1 year of the specialized
experience must be at least equivalent to experience at GS-15.
(3) Agencies may require applicants to furnish positive evidence
that they have performed highly creative or outstanding research where
similar abilities are required in the ST position.
Sec. 319.302 Individual qualifications.
Agency heads are delegated authority to approve the qualifications
of individuals appointed to SL and ST positions. The agency head must
determine that the individual meets the qualifications standards for
the position to which appointed.
Subpart D--Recruitment and Examination
Sec. 319.401 Senior-level positions.
(a) General. This section applies to appointments from a civil
service register. It does not apply to reassignments, promotions,
transfers, and reinstatements, which shall be made in accordance with
applicable statutory and regulatory provisions.
(1) Agency heads are delegated authority to recruit and examine
applicants for SL positions in the competitive service, establish
competitor inventories, and issue certificates of eligibles in
conformance with the requirements of this section, other applicable
regulations, and statute.
(2) Agencies shall take such action as OPM may require to correct
an action taken under delegated authority.
(3) Delegated authority may be terminated or suspended at any time
by OPM for reasons such as, but not limited to:
(i) Evidence of unequal treatment of candidates; or
(ii) Identifiable merit system abuses.
(b) Recruitment. (1) A recruiting plan, with appropriate emphasis
on affirmative recruitment, must be developed and followed.
(2) Vacancy announcements must remain open for a minimum of 14
calendar days. The closing date may not be a nonworkday.
(3) State Job Service offices must be notified of the vacancy in
accordance with 5 CFR 330.102. Publication in OPM's listing of Senior
Executive Service and other executive vacancies, which is provided the
offices, will satisfy this requirement.
(c) Evaluation of applicants. (1) Rating factors must be job-
related and based on competence and fitness.
(2) The qualification standard must be applied impartially to all
applicants.
(3) Bona fide consideration must be given to all applications
received from eligible applicants.
(4) All eligible applicants must be rated on the same basis.
(5) Numerical ratings must be used unless the total number of
eligible applicants is three or fewer and all are in the same category,
i.e., veterans or nonveterans.
(6) The raw score for eligible applicants must be converted to an
earned rating on a scale of 100 points, with the lowest passing score
set at 70 points.
(7) Five or ten points must be added to the earned rating of each
eligible applicant who meets the requirements for veteran preference.
(d) Establishment of a roster of eligibles. (1) Each eligible
applicant is entered on the roster according to the final numerical
rating. A preference eligible is listed ahead of a nonpreference
eligible with the same rating. A preference eligible who has a
compensable service-connected disability of 10 percent is listed ahead
of other eligibles without this kind of preference unless the vacancy
is a scientific or professional position where there is a minimum
education requirement.
(2) Applicants are placed on the selection certificate in the order
of their ranking on the roster of eligibles.
(e) Selection. (1) Selection must be from among the top three
candidates on the selection roster who are available for appointment.
(2) The selecting official may not pass over an eligible with
veteran preference to appoint an eligible without preference, or object
to any eligible, unless the action is approved by a designated agency
official. OPM, however, retains the final approval authority on:
(i) Objections or passovers based on suitability considerations.
(ii) Objections or passovers based on medical consideration of
preference eligibles with a compensable service-connected disability of
30 percent or more; and
(iii) Objections based on qualifications which would result in the
passover of a preference eligible with a compensable service-connected
disability of 30 percent or more.
(f) Applicant rights. (1) Applicants upon request must be given
their numerical score and their relative position on the certificate.
They also may have access to qualification questionnaires or reports of
qualification investigations about themselves, except for information
that would identify confidential sources.
(2) Applicant appeals, grievances, and complaints are subject to
the provisions of 5 CFR 300.104.
(g) Records. (1) Agencies must maintain records sufficient to allow
reconstruction of the merit staffing process.
(2) Records must be kept for 2 years after an appointment, or, if
no appointment is made, for 2 years after the closing date of the
vacancy announcement.
Sec. 319.402 Scientific and professional positions.
(a) ST positions are filled without competitive examination under 5
U.S.C. 3325.
(b) ST positions are not subject to the citizenship requirements in
5 CFR part 338, subpart A. Agencies, however, must observe any
restrictions on the employment of noncitizens in applicable
appropriations acts.
(c) ST employees acquire competitive status immediately upon
appointment. They are not required to serve a probationary or trial
period.
PART 359--REMOVAL FROM THE SENIOR EXECUTIVE SERVICE; GUARANTEED
PLACEMENT IN OTHER PERSONNEL SYSTEMS
20. The authority citation for part 359 continues to read as
follows:
Authority: 5 U.S.C. 1302 and 3596, unless otherwise noted.
Subpart F--Removal of Career Appointees as a Result of Reduction in
Force
Sec. 359.601 General.
* * * * *
(b) * * *
(3) Agency in this subpart means an executive department or an
independent establishment.
* * * * *
22. Section 359.602 is amended by adding a sentence at the end of
paragraph (a)(2) and by adding a new paragraph (a)(4) to read as
follows:
Sec. 359.602 Agency reductions in force.
(a) * * *
(2) * * * When performance ratings are used, they shall be the
final ratings under 5 CFR part 430, subpart C.
* * * * *
(4) Competitive procedures are not required if an agency is being
abolished, without a transfer of functions, and all SES appointees will
be separated at the same time or within 3 months of abolishment.
* * * * *
23. Section 359.603 is amended by revising the last sentence in
paragraph (a)(1), adding a new paragraph (a)(4), revising the last
sentence in paragraph (d)(2), adding paragraph (d)(3), and by revising
paragraph (f) to read as follows:
Sec. 359.603 OPM priority placement.
(a) * * *
(1) * * * This certification may not be delegated below the
Assistant Secretary level in a department, or an equivalent level above
the director of personnel in other agencies.
* * * * *
(4) An individual remains a career SES appointee in his or her
agency during the OPM placement period.
* * * * *
(d) * * *
(2) * * * The response may not be delegated below the Assistant
Secretary level in a department, or an equivalent level above the
director of personnel in other agencies.
(3) If an agency cancels a position while a referral to the
position is pending, the appointee will be entitled to priority
consideration for the position if it or a successor position is
reestablished in the SES within 1 year of the cancellation date and the
appointee has not been placed in another SES position.
* * * * *
(f) Declination by employee. If a career appointee declines a
reasonable offer of placement, OPM's placement efforts will cease. The
appointee may be removed from the SES at the expiration of the agency
notice period.
24. Section 359.605 is revised to read as follows:
Sec. 359.605 Notice Requirements.
(a) Each career appointee subject to removal under Sec. 359.604(b)
is entitled to a specific, written notice at least 45 calendar days
before the effective date of the removal. The notice shall state, as a
minimum--
(1) The action to be taken and its prospective effective date;
(2) The nature of the competition, including the appointee's
competitive area, if less than the agency, and standing on the
retention register;
(3) The place where the appointee may inspect the regulations and
records pertinent to the action;
(4) Placement rights within the agency and through OPM, including
how the employee can apply for OPM placement assistance; and
(5) The appointee's appeal rights, including the time limit for
appeal and the location of the Merit Systems Protection Board office to
which an appeal should be sent.
(b) A career appointee who has received a notice under paragraph
(a) of this section is entitled to a second notice in writing at least
1 day before removal from the SES. The notice shall state, as a
minimum--
(1) The basis for the removal, i.e., 5 U.S.C. 3595(b)(5) if the
basis is expiration of the 45-day OPM placement period, or 5 U.S.C.
3595(b)(4) if the basis is declination of a reasonable offer of
placement, in which case identify the position offered and the date on
which it was declined;
(2) The effective date of the removal;
(3) Placement rights outside the SES and, when applicable, the
appointee's eligibility for discontinued service retirement in lieu of
placement; and
(4) Reminder of the appointee's appeal rights.
Subpart G--Guaranteed Placement
25. In subpart G, Sec. 359.705 is amended by redesignating
paragraph (b) as paragraph (d) and by adding new paragraphs (b), (c),
and (e) to read as follows:
Sec. 359.705 Pay.
* * * * *
(b) An employee who is placed under this subpart in a position
outside the SES in another agency is entitled to receive basic pay
under the provisions of this section.
(c) An employee who is placed under this subpart in a General
Schedule position is not subject to the limitation on General Schedule
basic pay in 5 U.S.C. 5303(f) of level V of the Executive Schedule. The
employee is subject, however, to the limitation on General Schedule
basic pay plus locality-based comparability payments in 5 U.S.C.
5304(g)(1) of level IV of the Executive Schedule.
* * * * *
(e) Pay received under this section shall terminate if:
(1) The employee has a break in service of 1 workday or more; or
(2) The employee is demoted based on conduct or unacceptable
performance or at the employee's request.
26. The authority citation for subpart H of part 359 continues to
read as follows:
Authority: 5 U.S.C. 3133 and 3136.
Subpart H--Furloughs in the Senior Executive Service
27. Section 359.803 is amended by revising the first sentence to
read as follows:
Sec. 359.803 Competition.
Any furlough for more than 30 calendar days, or for more than 22
workdays if the furlough does not cover consecutive calendar days,
shall be made under competitive procedures established by the agency. *
* *
PART 534--PAY UNDER OTHER SYSTEMS
28. The authority citation for part 534 is revised to read as
follows:
Authority: 5 U.S.C. 1104, 5307, 5351, 5352, 5353, 5376, 5383,
5384, 5385, 5541, and 5550a.
Subpart D--Pay and Performance Awards Under the Senior Executive
Service
29. Section 534.401 is amended by revising paragraph (c)(3) and
paragraph (f) to read as follows:
Sec. 534.401 Definitions and setting individual basic pay.
* * * * *
(c) * * *
(3) An appointing authority may lower the pay for a senior
executive only one rate at the time of an adjustment. Restrictions on
reducing pay of career senior executives are in paragraph (f) of this
section.
* * * * *
(f) Restrictions on reducing pay of career senior executives. (1)
The ES rate of a career senior executive may be reduced involuntarily
in the appointee's agency or upon a transfer of function to another
agency only:
(i) For performance reasons, i.e., the executive has received a
less than fully successful performance rating under 5 CFR part 430,
subpart C, or has been conditionally recertified or not recertified
under 5 CFR 317.504; or
(ii) As a disciplinary action resulting from conduct related
activity, e.g., misconduct, neglect of duty, or malfeasance.
(2) If the pay reduction is for performance reasons, the agency
shall provide the executive at least 15 days' advance written notice.
(3) If the pay reduction is for disciplinary reasons, the agency
shall:
(i) Provide the executive at least 30 days' advance written notice;
(ii) Provide a reasonable time, but not less than 7 days, for the
executive to answer orally and in writing and to furnish affidavits and
other documentary evidence in support of the answer;
(iii) Allow the executive to be represented by an attorney or other
representative; and
(iv) Provide the executive a written decision and specific reasons
therefor at the earliest practicable date.
30. Section 534.403 is amended by revising paragraph (a)(1),
redesignating paragraph (a)(2) as paragraph (a)(3), adding new
paragraphs (a)(2) and (a)(4), adding a sentence at the end of paragraph
(c), and by adding a sentence at the end of paragraph (f) to read as
follows:
Sec. 534.403 Performance awards.
(a) * * *
(1) To be eligible for an award, the individual must have been an
SES career appointee as of the end of the performance appraisal period;
and the individual's most recent performance rating of record under
part 430, subpart C, of this chapter for the appraisal period must have
been ``Fully Successful'' or higher.
(2) Individuals eligible for a performance award include:
(i) A former SES career appointee who elected to retain award
eligibility under 5 CFR part 317, subpart H. If the salary of the
individual is above the ES-6 pay rate, the ES-6 rate is used for
crediting the agency award pool under paragraph (b) of this section and
the amount the individual may receive under paragraph (c) of this
section.
(ii) A reemployed annuitant with an SES career appointment.
(iii) An SES career appointee who is on detail. If the detail is to
another agency, eligibility is in the individual's official employing
agency, i.e., the agency from which detailed. If the appointee is on a
reimbursable detail, the agency to which the appointee is detailed may
reimburse the employing agency for some or all of any award, as agreed
upon by the two agencies; but the reimbursement does not affect the
award pool for either agency as calculated under paragraph (b) of this
section.
* * * * *
(4) The agency head must consider the recommendations of the
Performance Review Board (PRB), but the agency head has the final
authority as to who is to receive a performance award and the amount of
the award.
* * * * *
(c) * * * The rate of basic pay does not include locality-based
comparability payments under 5 U.S.C. 5304 and 5 CFR part 531, subpart
F, or special law enforcement adjustments under section 404 of the
Federal Employees Pay Comparability Act of 1990 and 5 CFR part 531,
subpart C.
* * * * *
(f) * * * The full performance award, however, is charged against
the agency bonus pool under paragraph (b) of this section for the
fiscal year in which the initial payment was made.
31. Section 534.405 is added to read as follows:
Sec. 534.405 Restrictions on premium pay and compensatory time.
(a) Under 5 U.S.C. 5541(2)(xvi) and 5 CFR 550.101(b)(18), members
of the Senior Executive Service (SES) are excluded from premium pay,
including overtime pay.
(b) Since SES members are not eligible for overtime pay, they also
are not eligible for compensatory time in lieu of overtime pay for work
performed as an SES member. SES members are eligible, however, for
compensatory time earned for religious purposes under 5 U.S.C. 5550a
and 5 CFR part 550, subpart J.
[FR Doc. 94-25704 Filed 10-17-94; 8:45 am]
BILLING CODE 6325-01-M