[Federal Register Volume 60, Number 9 (Friday, January 13, 1995)]
[Rules and Regulations]
[Pages 3055-3067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-830]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules 
and Regulations  
[[Page 3055]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 211, 230, 300, 301, 307, 310, 316, 330, 333, 339, 340, 
351, 353, and 930

RIN 3206-AG18


Federal Staffing Provisions Supporting Sunset of the Federal 
Personnel Manual

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule places into regulation a limited number of Federal 
staffing provisions that were formerly in the Federal Personnel Manual 
(FPM). The remaining ``provisionally retained'' portions of the FPM 
were abolished on December 31, 1994. This rule deletes or replaces 
regulatory language which references the FPM. Its provisions also 
define or clarify terms and describe procedures used in veterans' 
preference, reductions in force, veterans' readjustment appointments, 
term appointments, seasonal and intermittent employment, noncompetitive 
term appointments based on Peace Corps service, exemption of certain 
employees from coverage of the Part-time Career Employment Act, 
physical requirements for employment, and actions taken during a 
national emergency (including the possible appointment of relatives). 
They extend delegations to agencies for assigning persons serving under 
excepted appointments to the work of positions in the competitive 
service; making temporary appointments of worker trainees pending 
establishment of a register (TAPER); and extending time limits for 
overseas temporary appointments. The provisions also delete 
requirements for a number of regular reports. In the case of part 351, 
Reduction in Force, and part 353, Restoration to Duty From Military 
Service or Compensable Injury, sections are reworded for clarity and 
consistency with decisions of the Merit Systems Protection Board.

EFFECTIVE DATE: January 13, 1995.

FOR FURTHER INFORMATION CONTACT:
Diane Bohling, (202) 606-0960 with questions concerning the changes in 
5 CFR 330; Thomas Glennon, (202) 606-0960 concerning the changes in 5 
CFR 351; Raleigh Neville, (202) 606-0830 concerning the changes in 5 
CFR 340, 5 CFR 353 and 5 CFR 930; and Mike Carmichael or Karen Jacobs, 
(202) 606-0830, concerning the other changes.

SUPPLEMENTARY INFORMATION: The Vice President's National Performance 
Review (NPR) recommended that the Office of Personnel Management (OPM) 
``phase out the entire 10,000 page Federal Personnel Manual (FPM).'' 
The President endorsed the NPR recommendations.
    In planning to abolish the FPM, OPM met over an extended period 
with representatives of agencies and employee unions to identify which 
FPM policies should be dropped, which should be continued in 
regulation, and which should be available as a helpful reference in an 
alternative format. The resulting recommendations were reviewed and 
endorsed by the Interagency Advisory Group of agency personnel 
directors and by the National Partnership Council.
    This rule carries out the recommendations of those groups to retain 
selected current policies in the area of staffing. Regulations to 
establish new policies, including implementation of P.L. 103-353 
(veterans' reemployment rights), will be proposed separately.
    The proposed rule was published in the Federal Register at 59 FR 
55212 on November 4, 1994, with a request for comments on or before 
December 5, 1994. A copy of the proposed rule (including a line that 
was inadvertently dropped in printing) was posted on November 3, 1994, 
on OPM's computer bulletin board, Mainstreet. At the same time, all 
personnel directors of departments and agencies were notified by fax of 
the posting on Mainstreet and of the pending Federal Register 
publication. The publication of the proposed rule was also announced in 
a meeting of the Interagency Advisory Group of personnel directors.
    Comments on the proposed rule were received from three departments, 
two components of departments that had commented separately, one 
independent agency, and one employee union.
    We did not adopt suggestions for new policies not previously in 
regulation or in the Federal Personnel Manual. Specifically, that 
included suggestions to drop excepted service temporary employees from 
reduction-in-force tenure group III and to deregulate the reemployment 
priority list program. Although such suggestions will be considered for 
future program improvements, they would have violated the consensus 
gained for this particular rule from the long, collaborative review 
process with agencies and unions. The consensus was to continue, 
through this rule, a limited number of existing staffing policies that 
would have ended with the sunset of the FPM. There was particular 
agreement not to change current policies in the sensitive area of 
reductions-in-force (RIF) and related reemployment priority lists 
(RPL). That consensus was also likely the reason that few made comments 
on the proposed rule and that comments sought clarification rather than 
change
    We also did not adopt recommendations to delete references to the 
FPM in sections of the Code of Federal Regulations outside the scope of 
this rule. Those deletions will be proposed with other regulatory 
changes.
    A department recommended amending Sec. 301.203 to delegate 
authority directly to agencies to approve time-limit exceptions for 
overseas limited appointments. We prefer to maintain OPM's role in 
approving such delegations until agencies have more experience with the 
recent regulatory changes for temporary employment.
    We also did not conclude that epidemics warrant emergency-
indefinite appointment authority in Sec. 230.402(b).
    Questions about terminology in the proposed rule are addressed 
here: ``Equivalent grades in the Federal Wage System'' are mentioned in 
Sec. 316.201(b) because there technically could be grades in the 
Federal Wage System other than just ``WG.'' Subpart D of $340 
eliminates reference to ``on-call'' employment as redundant; there is 
no substantive difference between seasonal and on-call. The change in 
terms from ``physically qualified'' to ``medically 
[[Page 3056]] qualified'' in Sec. 930.105(a)(4) conforms to appropriate 
terminology in part 339 of this chapter; it has nothing to do with drug 
testing.
    Comments did lead us to change wording in 12 places in this final 
rule, either to clarify provisions or to adhere more closely to 
existing policy.
    In redesignated Sec. 230.402(d)(1) a reference to the Federal 
Personnel Manual (FPM) is deleted.
    Since paragraphs were re-lettered in Sec. 230.402, redesignated 
Sec. 230.402(h)(2) is amended to refer to previous paragraph (c), not 
paragraph (b).
    A reference to the FPM is deleted from Sec. 300.104(b).
    Added wording in Sec. 307.104 clarifies the second year appeal 
rights of persons holding veterans readjustment appointments.
    A line is restored to Sec. 316.201. It inadvertently had been 
dropped from the proposed rule. It does not change the thrust of the 
section, but clarifies how long a position should last for there to be 
a TAPER appointment.
    In Sec. 330.202, paragraph (c) is revised for clarity.
    In Sec. 330.203, paragraph (d)(2)(iv) is revised to clarify that a 
person is ineligible for RPL if that person separates for a reason 
other than RIF on the date scheduled for a RIF separation.
    Paragraph (d)(3) of Sec. 330.203 is also reworded to more 
faithfully reflect existing policy and to avoid adding a new 
requirement for agencies.
    In Sec. 330.208, paragraph (a)(1) is revised to recognize single 
agency qualification standards.
    Section 333.102 is revised to use terms consistently.
    In Sec. 353.301, paragraph (a) is corrected so the title and 
content agree.

Executive Order 12866, Regulatory 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 these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
apply only to Federal agencies and employees.

List of Subjects

5 CFR Part 211

    Government employees, Veterans.

5 CFR Part 230

    Civil defense, Government employees.

5 CFR Part 300

    Freedom of information, Government employees, Reporting and 
recordkeeping requirements, Selective Service System.

5 CFR Part 301

    Government employees.

5 CFR Part 307

    Government employees, Veterans.

5 CFR Part 310

    Government employees.

5 CFR Part 316

    Government employees.

5 CFR Part 330

    Armed forces reserves, Government employees.

5 CFR Part 333

    Government employees.

5 CFR Part 339

    Equal employment opportunity, Government employees, Health, 
Individuals with disabilities.

5 CFR Part 340

    Government employees.

5 CFR Part 351

    Administrative practice and procedure, Government employees.

5 CFR Part 353

    Administrative practice and procedure, Government employees.

5 CFR Part 930

    Administrative practice and procedure, Computer technology, 
Government employees, Motor vehicles.

Office of Personnel Management.
James B. King,
Director.

    Accordingly, 5 CFR parts 211, 230, 300, 301, 307, 310, 316, 330, 
333, 339, 340, 351, 353, and 930 are amended as set forth below.

PART 211--VETERAN PREFERENCE

    1. Part 211 is revised to read as follows:

PART 211--VETERAN PREFERENCE

Sec.
211.101  Purpose.
211.102  Definitions.
211.103  Administration of preference.

    Authority: 5 U.S.C. 1302.


Sec. 211.101  Purpose.

    The purpose of this part is to define veterans' preference and the 
administration of preference in Federal employment. (5 U.S.C. 2108)


Sec. 211.102  Definitions.

    For purposes of preference in Federal employment the following 
definitions apply:
    (a) Veteran means a person who was separated with an honorable 
discharge or under honorable conditions from active duty in the armed 
forces performed--
    (1) In a war; or,
    (2) In a campaign or expedition for which a campaign badge has been 
authorized; or
    (3) During the period beginning April 28, 1952, and ending July 1, 
1995; or,
    (4) For more than 180 consecutive days, other than for training, 
any part of which occurred during the period beginning February 1, 
1955, and ending October 14, 1976.
    (b) Disabled veteran means a person who was separated under 
honorable conditions from active duty in the armed forces performed at 
any time and who has established the present existence of a service-
connected disability or is receiving compensation, disability 
retirement benefits, or pensions because of a public statute 
administered by the Department of Veterans Affairs or a military 
department.
    (c) Preference eligible means veterans, spouses, widows, or mothers 
who meet the definition of ``preference eligible'' in 5 U.S.C. 2108. 
Preference eligibles are entitled to have 5 or 10 points added to their 
earned score on a civil service examination (see 5 U.S.C. 3309). They 
are also accorded a higher retention standing in the event of a 
reduction in force (see 5 U.S.C. 3502). Preference does not apply, 
however, to inservice placement actions such as promotions.
    (d) Armed forces means the United States Army, Navy, Air Force, 
Marine Corps, and Coast Guard.
    (e) Uniformed services means the armed forces, the commissioned 
corps of the Public Health Service, and the commissioned corps of the 
National Oceanic and Atmospheric Administration.
    (f) Active duty or active military duty means full-time duty with 
military pay and allowances in the armed forces, except for training or 
for determining physical fitness and except for service in the Reserves 
or National Guard.
    (g) Separated under honorable conditions means either an honorable 
or a general discharge from the armed forces. The Department of Defense 
is responsible for administering and defining military discharges.


Sec. 211.103  Administration of preference.

    Agencies are responsible for making all preference determinations 
except for [[Page 3057]] preference based on a common law marriage. 
Such a claim should be referred to OPM's General Counsel for decision.

PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT

    2. The authority citation for part 230 is revised to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577; 3 CFR 1954--
1958 Comp., p. 218; sec. 230.402 also issued under 5 U.S.C. 1104.

    3. In Sec. 230.402, paragraphs (a) through (h) are redesignated as 
paragraphs (b) through (i), respectively; a new paragraph (a) is added; 
and newly redesignated paragraphs (b), (d)(1), and (h)(2) are revised 
to read as follows:


Sec. 230.402  Agency authority to make emergency-indefinite 
appointments in a national emergency.

    (a) When a national emergency exists--(1) Definition. A national 
emergency must meet all of the following conditions:
    (i) It was declared by the President or Congress.
    (ii) It involves a danger to the United States' safety, security, 
or stability that results from specified circumstances or conditions 
and that is national in scope.
    (iii) It requires a national program specifically intended to 
combat the threat to national safety, security, or stability.
    (2) Termination of a national emergency. A national emergency no 
longer exists if it is officially terminated by the President or 
Congress, or if the specific circumstances, conditions, or program 
cited in the original declaration are terminated or corrected.
    (b) Basic authority. Agencies may make emergency-indefinite 
appointments without OPM approval during any national emergency as 
defined in paragraph (a) of this section. The head of an agency with a 
defense-related mission may request OPM's approval to make emergency-
indefinite appointments without a declared national emergency when the 
President has authorized the call-up of some portion of the military 
reserves for some military purpose. The request must demonstrate that 
normal hiring procedures cannot meet surge employment requirements and 
that use of emergency-indefinite appointments is necessary for economy 
and efficiency. Except as provided by paragraphs (c) and (d) of this 
section, agencies must make emergency-indefinite appointments from 
appropriate registers of eligibles as long as there are available 
eligibles.
* * * * *
    (d)(1) Persons who were recruited on a standby basis prior to the 
national emergency;
* * * * *
    (h) * * *
    (2) The selection procedures of part 333 of this chapter apply to 
emergency-indefinite employees appointed outside the register under 
paragraph (c) of this section.
* * * * *

PART 300--EMPLOYMENT (GENERAL)

    4. The authority citation for part 300 is revised to read as 
follows:

    Authority: 5 U.S.C. 552, 3301, and 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., page 218, unless otherwise noted.

    Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 
7204, and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803.
    Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 
1302(c), 2301, and 2302.
    Secs. 300.501 through 300.507 also issued under 5 U.S.C. 
1103(a)(5).
    Sec. 300.603 also issued under 5 U.S.C. 1104.

    5. In Sec. 300.104, paragraph (b) is revised to read as follows:


Sec. 300.104  Appeals, grievances and complaints.

    (b) Examination ratings. A candidate may file an appeal with the 
Office from his or her examination rating or the rejection of his or 
her application, except that, where the Office has delegated examining 
authority to an agency, the candidate should appeal directly to that 
agency. The appeal and supporting documents shall be filed with the 
agency office that determined the rating.
* * * * *
    6. In Sec. 300.201, paragraphs (b) through (e) are redesignated as 
paragraphs (c) through (f), respectively and a new paragraph (b) is 
added to read as follows:


Sec. 300.201  Examinations.

* * * * *
    (b) The Office maintains control over the security and release of 
testing and examination materials which it has developed and made 
available to agencies for initial competitive appointment or inservice 
use unless the materials were developed specifically for an agency 
through a reimbursable contractual agreement. These testing and 
examination materials include, and are subject to the same controls as, 
those described in paragraphs (a)(1) and (a)(2) of this section.
    7. A new subpart C, consisting of Sec. 300.301, is added to read as 
follows:

Subpart C--Details of Employees

Sec.
300.301  Authority.


Sec. 300.301  Authority.

    (a) In accordance with 5 U.S.C. 3341, an agency may detail an 
employee in the competitive service to a position in either the 
competitive or excepted service.
    (b) In accordance with 5 U.S.C. 3341, an agency may detail an 
employee in the excepted service to a position in the excepted service 
and may also detail an excepted service employee serving under Schedule 
A, Schedule B, or the Veterans Readjustment Act, to a position in the 
competitive service.
    (c) Any other detail of an employee in the excepted service to a 
position in the competitive service may be made only with the prior 
approval of the Office of Personnel Management or under a delegated 
agreement between the agency and OPM.
    8. In Sec. 300.407, paragraph (b) is revised to read as follows:


Sec. 300.407   Documentation.

* * * * *
    (b) When requested by OPM, agencies will provide reports on the use 
of commercial recruiting firms, based on the records required in 
paragraph (a) of this section.

PART 301--OVERSEAS EMPLOYMENT

    9. The authority citation for part 301 continues to read as 
follows:

    Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218, as amended by E.O. 10641, 3 CFR, 1954-1958 Comp., p. 
274, unless otherwise noted.

    10. In Sec. 301.203, paragraph (c) is revised and paragraph (d) is 
added to read as follows:


Sec. 301.203   Duration of appointment.

* * * * *
    (c) An agency may make an overseas limited appointment for 1 year 
or less to meet administrative needs for temporary employment. An 
agency may extend such an appointment for up to a maximum of 1 
additional year.
    (d) Upon request from the headquarters level of a Department or 
agency, OPM may approve, or delegate to agencies the authority to 
approve, exceptions to the time limits set out in paragraph (c) of this 
section. [[Page 3058]] 

PART 307--VETERANS READJUSTMENT APPOINTMENTS

    11. The authority citation for part 307 continues to read as 
follows:

    Authority: 5 U.S.C. 3301, 3302; E.O. 11521, 3 CFR, 1970 Comp., 
p. 912; 38 U.S.C. 4214.


Sec. 307.102   [Amended]

    12. In Sec. 307.102, paragraph (c) is removed.
    13. Section 307.103 is revised to read as follows:


Sec. 307.103   Appointing authority.

    (a) An agency may appoint any veteran who served on active duty 
after August 4, 1964, who meets the basic veterans readjustment 
eligibility provided by law.
    (b) Appointments are subject to investigation by OPM. A law, 
Executive order, or regulation which disqualifies a person for 
appointment in the competitive service also disqualifies a person for a 
veterans readjustment appointment.
    14. Section 307.104 is added to read as follows:


Sec. 307.104   Appeal rights.

    A veterans readjustment appointment (VRA) is an excepted 
appointment to a position otherwise in the competitive service. 
Veterans readjustment appointees have the same appeal rights as 
excepted service employees under parts 432 and 752 of this chapter, 
except the appointees are also entitled to limited appeal protection 
during their 1st year of service as set forth in Sec. 315.806 of this 
chapter. This means that a VRA appointee with more than 1 year of 
current continuous service, who is also a preference eligible, can 
appeal an adverse action to the Merit Systems Protection Board. 
Nonpreference eligibles serving under VRA appointments do not get such 
protection until they are converted to the competitive service.

PART 310--EMPLOYMENT OF RELATIVES

    15. The authority citation for part 310 continues to read as 
follows:

    Authority: 5 U.S.C. 3302, 7301; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218; E.O. 11222, 3 CFR 1964-1965 Comp., p. 306.

    16. Section 310.202 is revised to read as follows:


Sec. 310.202   Exceptions.

    When necessary to meet urgent needs resulting from an emergency 
posing an immediate threat to life or property, or a national emergency 
as defined in Sec. 230.402(a)(1) of this title, a public official may 
employ relatives to meet those needs without regard to the restrictions 
in section 3110 of title 5, United States Code, and this part. 
Appointments under these conditions are temporary not to exceed 1 
month, but may be extended for a 2nd month if the emergency need still 
exists.

PART 316--TEMPORARY AND TERM EMPLOYMENT

    17. The authority citation for part 316 is revised to read as 
follows:

    Authority: 5 U.S.C. 3301, 3302 and E.O. 10577 (3 CFR 1954-1958 
Comp. p. 218); Sec. 316.302 also issued under 5 U.S.C. 3304(c), 22 
U.S.C. 2506 (94 Stat. 2158); 38 U.S.C. 2014, and E.O. 12362, as 
revised by E.O. 12585; Sec. 316.402 also issued under 5 U.S.C. 
3304(c) and 3312, 22 U.S.C. 2506 (93 Stat. 371), E.O. 12137, 38 
U.S.C. 2014, and E.O. 12362, as revised by E.O. 12585 and E.O. 
12721.

    18. Section 316.201 is revised to read as follows:


Sec. 316.201  Purpose and duration.

    (a) General. OPM may authorize an agency to fill a vacancy by 
temporary appointment pending establishment of a register (TAPER 
appointment) when there are insufficient eligibles on a register 
appropriate for filling the vacancy in a position that will last for a 
period of more than 1 year and the public interest requires that the 
vacancy be filled before eligibles can be certified. The agency must 
follow the provisions of part 333 of this chapter when making a TAPER 
appointment.
    (b) Specific authority for Worker-Trainee positions. Agencies may 
make TAPER appointments to positions at GS-1, WG-1, and WG-2 and may 
reassign or promote the appointees to other positions through grade GS-
3, WG-4, or equivalent grades in the Federal Wage System.
    19. Section 316.301 is revised to read as follows:


Sec. 316.301  Purpose and duration.

    An agency may make a term appointment for a period of more than 1 
year but not more than 4 years when the need for an employee's services 
is not permanent. Reasons for making a term appointment include, but 
are not limited to: project work, extraordinary workload, scheduled 
abolishment, reorganization, or contracting out of the function, 
uncertainty of future funding, or the need to maintain permanent 
positions for placement of employees who would otherwise be displaced 
from other parts of the organization.
    20. In Sec. 316.302, paragraph (c)(3) is revised to read as 
follows:


Sec. 316.302  Selection of term employees.

* * * * *
    (c) * * *
    (3) A person eligible for career or career-conditional employment 
under Secs. 315.601, 315.605, 315.606, 315.607, 316.608, 315.609, or 
315.703 of this chapter.
* * * * *

PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)

    21. The authority citation for part 330 continues to read as 
follows:

    Authority: 5 U.S. C. 1302, 3301, 3302; E.O. 10577; 3 CFR, 1954-
58 Comp., p. 218; Sec. 330.102 also issued under 5 U.S.C. 3327; 
subpart B also issued under 5 U.S.C. 3315 and 8151; Sec. 330.401 
also issued under 5 U.S.C. 3310; subpart H also issued under 5 
U.S.C. 8337(h) and 8457(b); subpart I also issued under sec. 4432 of 
Pub. Law 102-484.

    22. Section 330.201 is revised to read as follows:


Sec. 330.201  Establishment and maintenance of RPL.

    (a) The reemployment priority list (RPL) is the mechanism agencies 
use to give reemployment consideration to their former competitive 
service employees separated by reduction in force (RIF) or fully 
recovered from a compensable injury after more than 1 year. The RPL is 
a required component of agency positive placement programs. In filling 
vacancies, the agency must give RPL registrants priority consideration 
over certain outside job applicants and, if it chooses, also may 
consider RPL registrants before considering internal candidates.
    (b) Each agency is required to establish and maintain a 
reemployment priority list for each commuting area in which it 
separates eligible competitive service employess by RIF or when a 
former employee recovers from a compensable injury after more than 1 
year, except as provided in paragraph (c) of this section. For purposes 
of this subpart, agency means Executive agency as defined in 5 U.S.C. 
105. All components of an agency within the commuting area utilize a 
single RPL and are responsible for giving priority consideration to the 
RPL registrants.
    (c) An agency need not maintain a distinct RPL for employees 
separated by reduction in force if the agency operates a placement 
program for its employees and obtains OPM concurrence that the program 
satisfies the basic requirements of this subpart. The intent of this 
provision is to allow agencies to adopt different placement strategies 
that are effective for their particular programs [[Page 3059]] yet 
satisfy legal entitlements to priority consideration in reemployment.
    23. In Sec. 330.202, paragraph (a)(1) is revised and paragraph (c) 
is added to read as follows:


Sec. 330.202  Application.

    (a)(1) To be entered on the RPL, an eligible employee under 
Sec. 330.203 must complete an application prescribed by the employing 
agency and inform the agency of any significant changes in the 
information provided. This application must provide for the employee to 
specify the conditions under which he or she will accept employment, 
including grade, occupation, and minimum hours or work per week, in 
addition to positions at the same representative rate and type of work 
schedule (e.g., full-time, part-time, seasonal, intermittent, on-call, 
etc.) as the position from which the employee was or will be separated. 
Registration may take place as soon as a specific notice of separation 
under part 351 of this chapter, or a Certification of Expected 
Separation as provided in Sec. 351.807 of this chapter, has been 
issued. The employee must submit the application within 30 calendar 
days after the RIF separation date. An employee who fails to submit a 
timely application is not entitled to be placed on the RPL. If an 
agency has components scattered throughout a large commuting area, the 
agency may allow eligibles to indicate their availability only for 
certain sub-areas within the commuting area. However, the agency cannot 
deny consideration throughout the entire commuting area if the eligible 
wants it.
* * * * *
    (c) Agencies should be prepared to assist employees, when 
requested, in identifying and listing on the reemployment priority list 
(RPL) application those positions within the agency for which the 
employee qualifies and is interested.
    24. In Sec. 330.203, paragraphs (a)(4) and (c) are revised and 
paragraph (d), (e), (f), and (g) are added to read as follows:


Sec. 330.203  Eligibility due to reduction in force.

    (a) * * *
    (4) Have not declined an offer under subpart G of part 351 of this 
chapter of a position with the same type of work schedule and a 
representative rate at least as high as that of the position from which 
the employee was or will be separated.
* * * * *
    (c) A tenure group I employee is eligible for the RPL for 2 years, 
and a tenure group II employee is eligible for 1 year, from the date 
the employee is entered on the RPL.
    (d)(1) When an individual declines an offer of career, career-
conditional, or excepted appointment without time limit or fails to 
reply to an inquiry, under this subpart, and the position meets the 
acceptable conditions shown in his or her application, he or she loses 
RPL consideration for all positions with a representative rate at or 
below that grade. However, subject to paragraph (d)(2)(iii) of this 
section, the individual retains eligibility for positions with a higher 
representative rate up to the last grade held.
    (2) Also, an individual is taken off the RPL before the period of 
eligibility expires when the individual:
    (i) Requests removal;
    (ii) Receives a career, career-conditional, or excepted appointment 
without time limit in any agency;
    (iii) Declines an offer of career, career-conditional, or excepted 
appointment without time limit or fails to reply to an inquiry, under 
this subpart, by the employee's former agency, concerning a specific 
position having a representative rate at least as high, and with the 
same type of work schedule, as that of the position from which the 
person was or will be separated.
    (iv) Separates for some other reason (such as retirement, 
resignation, etc.) before the date the RIF separation would take 
effect. An employee who retires on or after the date of separation by 
RIF does not lose RPL eligibility.
    (v) Declines an interview or fails to appear for a scheduled 
interview only if notified in advance of this requirement and the 
subsequent consequences.
    (vi) In the case of an individual enrolled on an RPL for Alaska or 
overseas, leaves the area covered by that RPL or becomes disqualified 
for overseas employment because of previous service or residence.
    (3) When an agency removes an individual from the RPL because of 
failure to reply to a specific permanent job offer or an inquiry of 
availability for a specific permanent vacancy, the agency must have 
evidence to show that a written offer or inquiry was made (e.g., a 
Postal Service ``return receipt signed by addressee only''). The 
written offer or inquiry to the individual must clearly state that 
failure to respond will result in loss of RPL consideration for that 
grade or higher grades, if eligible.
    (e) Declination of nonpermanent employment has no effect on RPL 
eligibility or continuation of RPL consideration.
    (f) Consideration for all jobs (whether permanent or nonpermanent) 
is suspended for any individual who cannot be reached by the agency. 
Submission of an updated application can reinstate consideration, but 
the period of eligibility is not extended beyond the original time set 
in paragraph (c) of this section.
    (g) Eligibles who had agreed to transfer with their function but 
were separated by RIF from the gaining competitive area are registered 
on the RPL of the gaining competitive area.
    25. In Sec. 330.204, paragraphs (a) and (b)(3) are revised and 
paragraph (c) is added to read as follows:


Sec. 330.204  Eligibility due to compensable injury.

    (a) A competitive service employee in tenure group I or II who is 
separated (or who accepts a lower graded position in lieu of 
separation) because of a compensable injury of disability (as defined 
in part 353 of this chapter) who has fully recovered more than 1 year 
after compensation began is entitled to be placed on the RPL provided 
the individual applies within the timeframes addressed in Sec. 330.202. 
Part 353 of this chapter contains information on eligibility.
* * * * *
    (b) * * *
    (3) Declines an offer or fails to respond to an inquiry of 
availability about a specific position that is the same as or 
equivalent to the position from which separated.
    (c) A former employee must request reemployment consideration with 
the time limits set in Sec. 330.202.
    26. Section 330.205 is revised to read as follows:


Sec. 330.205  Employment restrictions.

    (a) The restrictions in paragraph (b) of this section apply to the 
filling of all competitive service vacancies, regardless of whether an 
agency plans to make a temporary, term, or permanent appointment. This 
means an agency must consider RPL registrants for nonpermanent as well 
as permanent positions when they have indicated such interest on their 
RPL application.
    (b) When a qualified individual is available on an agency's RPL, 
the agency may not make a final commitment to an individual not on the 
RPL to fill a permanent or temporary competitive service position by:
    (1) A new appointment, unless the individual appointed is a 
qualified 10-point preference eligible; or
    (2) Transfer or reemployment, unless the individual appointed is a 
preference eligible, is exercising restoration rights under part 353 of 
this chapter based on return from military service or recovery from a 
compensable injury or disability [[Page 3060]] within 1 year, or is 
exercising other statutory or regulatory reemployment rights.
    (c) Paragraph (b) of this section does not apply to actions 
involving employees on an agency's rolls, as authorized in paragraphs 
(c) (1), (2), and (3) of this section, or in filling a specific 
position:
    (1) When all qualified individuals on the RPL decline an offer of a 
specific position or fail to respond to an official agency inquiry 
about their availability for it; or
    (2) By a current, qualified employee of the agency through:
    (i) Detail or position change (promotion, demotion, reassignment); 
or
    (ii) Conversion to competitive appointment of employees currently 
serving under appointments that carry a noncompetitive conversion 
eligibility (e.g., Veterans Readjustment Appointee, 30 percent disabled 
veterans, disabled employees under Schedule A appointment, Presidential 
Management Interns, cooperative education students under Schedule B 
appointment, and TAPERS); or
    (iii) Reappointment without a break in service to the same position 
currently held by an employee serving under a temporary appointment of 
1 year or less (only to another temporary appointment not to exceed 1 
year or less and not to a permanent appointment); or
    (iv) Extension of an employee's temporary appointment up to the 
maximum permitted by the appointment authority or as authorized by OPM.
    (3) By a 30-day special needs appointment or 700 hour temporary 
appointment of a severely disabled or mentally restored individual, 
when the agency's staffing policies provide for these exceptions.
    (d) An agency must clear the RPL at the grade level at which it 
fills a position (regardless of the full performance level). Similarly, 
if an agency advertises a position at multiple grade levels, it must 
clear the RPL only at the grade level at which the position is 
ultimately filled.
    (e) Once an agency has cleared its RPL and made a final employment 
commitment to an individual, the later registration of another employee 
on the RPL does not prevent the fulfillment of the original commitment, 
regardless of when the individual actually enters on duty.
    (f) An agency may make an exception to this section and appoint an 
individual not on the RPL as authorized by Sec. 330.207(d).
    (g) When submitting a request for referral of eligibles, an agency 
is required to indicate that no qualified RPL registrant is available 
for the vacancy and therefore the agency may make a new appointment. 
Similarly, an agency must clear its RPL before making appointments 
under a direct-hire authority, which includes the Outstanding Scholar 
provision, or delegated examining authority.
    27. In Sec. 330.206, paragraphs (a)(1), (a)(2), and (b) are revised 
to read as follows:


Sec. 330.206  Job consideration.

    (a)(1) An eligible employee under Sec. 330.203 is entitled to 
consideration for positions in the commuting area for which qualified 
and available that are at no higher grade (or equivalent), have no 
greater promotion potential than the position from which the employee 
was or will be separated, and have the same type of work schedule. In 
addition, an employee is entitled to consideration for any higher grade 
previously held on a nontemporary basis in the competitive service from 
which the employee was demoted under part 351 of this chapter.
    (2) An employee is considered for positions having the same type of 
work schedule as the position from which separated except that the 
agency, at its discretion, may adopt provisions permitting employees to 
request consideration for other work schedules in addition to that 
formerly held.
* * * * *
    (b)(1) An eligible employee under Sec. 330.205 is placed on the RPL 
for reemployment consideration for his or her former position or an 
equivalent one. If the individual cannot be placed in such a position 
in the former commuting area, he or she is entitled to priority 
consideration for an equivalent position elsewhere in the agency at the 
time and in a manner as the agency determines will provide the 
individual with maximum opportunities for consideration.
    (2) In lieu of expanded consideration in other locations, an 
individual who cannot be placed in his or her former or equivalent 
position in the former commuting area may elect to be considered for 
the next best available position in the former commuting area.
    28. In Sec. 330.207, paragraphs (a), (b), (c)(1), and (d) are 
revised to read as follows:


Sec. 330.207  Selection from RPL.

    (a) Options. An agency must adopt one of the selection methods in 
paragraphs (b) and (c) of this section for use in operating a single 
RPL. The agency may adopt the same method for each RPL it establishes 
or may vary the method by location, but it must adopt a written policy 
for each RPL it establishes and maintains. After a method is adopted, 
the agency uses that method in filling all positions. While an agency 
may not vary the method used by individual vacancy, it may at any time 
switch selection methods for employees enrolled on the RPL.
    (b) Retention standing order. For each vacancy to be filled, the 
agency shall place qualified individuals in group and subgroup order in 
accordance with part 351 of this chapter. In making a selection, an 
agency may not pass over an individual in group I to select from group 
II and, within a group, may not pass over an individual in a higher 
subgroup to select from a lower subgroup. Within a subgroup, an agency 
may select an individual without regard to order of retention standing. 
A person has no greater priority for the grade or position from which 
separated than any other person on the list who is qualified for the 
vacancy. An agency may make an exception to this selection order only 
in accordance with paragraph (d) of this section.
    (c)(1) Rating and ranking. For each vacancy to be filled, the 
agency rates qualified individuals according to their job experience 
and education. To do this, an agency shall develop job-related 
evaluation procedures capable of distinguishing differences in 
qualifications measured, which shall be applied in a fair and 
consistent manner. Based on these procedures, the agency shall assign 
qualified individuals a numerical score of at least 70 on a scale of 
100. The agency shall grant 5 additional points to preference eligibles 
under section 2108(3)(A) and (B) of title 5, United States Code, and 10 
additional points to preference eligibles under section 2108(3) (C) 
through (G) of that title.
* * * * *
    (d) Exceptions. An agency may make an exception to this subpart and 
appoint an individual who is not on the RPL or has lower standing than 
others on the RPL. The exception may be granted only when necessary to 
obtain an employee for duties that cannot be taken over without undue 
interruption (as defined in Sec. 351.203 of this chapter) to the agency 
by an individual who is on the RPL or has higher standing than the one 
appointed. The agency shall notify, in writing, each individual on the 
RPL who is adversely affected by an appointment under this paragraph of 
the reasons for the exception and of the right of appeal to the Merit 
Systems Protection Board.
    29. In Sec. 330.208, paragraphs (a)(1) and (b) introductory text 
are revised and [[Page 3061]] paragraph (a)(4) is added to read as 
follows:


Sec. 330.208  Qualification requirements.

    (a) * * *
    (1) Meets OPM-established or approved qualification standards and 
requirements for the position, including any minimum educational 
requirements, and any selection placement factors established by the 
agency;
* * * * *
    (4) Meets any other applicable requirement for appointment to the 
competitive service.
    (b) An agency may make an exception to the qualification standard 
and adopt an alternative standard under the following conditions (this 
provision does not authorize waiver of the selection order required by 
Sec. 330.207):
* * * * *

PART 333--RECRUITMENT AND SELECTION FOR TEMPORARY AND TERM 
APPOINTMENTS OUTSIDE THE REGISTER

    30. The authority citation for part 333 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; section 333.203 also issued under 5 U.S.C. 1104, 
Pub. L. 95-454, sec. 3(5).

    31. Section 333.101 is revised to read as follows:


Sec. 333.101  Standards for temporary and term appointments outside the 
register.

    Except as OPM may otherwise specify, an agency, in making a 
temporary or term appointment outside the register, shall determine 
that the applicant meets the qualification standards issued by OPM and 
that he or she is not disqualified for any of the reasons listed in 
Sec. 339.101 and Sec. 731.201 of this chapter. Candidates found to be 
qualified shall be assigned either an eligible rating or a numerical 
score of at least 70 on a scale of 100.
    32. Section 333.102 is revised to read as follows:


Sec. 333.102  Public notice for temporary and term appointments outside 
the register.

    An agency recruiting outside the register must send a vacancy 
announcement to the OPM job information center(s) and place an order 
with the State Employment Service office(s) that have geographic 
jurisdiction over the position(s). The notices must describe the 
qualifications required and application deadline; must include equal 
opportunity and veterans preference provisions; and must follow other 
OPM instructions for preparing vacancy announcements.

PART 339--MEDICAL QUALIFICATION DETERMINATIONS

    33. The authority citation for part 339 continues to read as 
follows:

    Authority: 5 U.S.C. 3301, 3302, 5112; E.O. 9830, February 24, 
1947.

    34. In Sec. 339.102, paragraph (b) is revised to read as follows:


Sec. 339.102  Purpose and effect.

* * * * *
    (b) Personnel decisions based wholly or in part on the review of 
medical documentation and the results of medical examinations and 
evaluations shall be made in accordance with appropriate parts of this 
title.
* * * * *

PART 340--OTHER THAN FULL-TIME CAREER EMPLOYMENT (PART-TIME, 
SEASONAL, AND INTERMITTENT)

    35. The authority citation for part 340 continues to read as 
follows:

    Authority: 5 U.S.C. 3401 et seq., unless otherwise noted.

    36. In Sec. 340.202, paragraph (c) is revised to read as follows:


Sec. 340.202  General.

* * * * *
    (c) Mixed Tours of Duty. The provisions of this subpart and the 
term ``part-time career employment'' do not apply to employees with 
appointments in tenure groups I or II who work under mixed tours of 
duty. For this purpose, a mixed tour of duty consists of annually 
recurring periods of full-time, part-time, or intermittent service as 
long as the employee does not work part-time more than 6 pay periods 
per calendar year.
    37. Subpart D of part 340 is revised to read as follows:

Subpart D--Seasonal and Intermittent Employment

Sec.
340.401  Definitions.
340.402  Seasonal employment
340.403  Intermittent employment.

    Authority: 5 U.S.C. 3401 et seq., unless otherwise noted.

Subpart D--Seasonal and intermittent Employment


Sec. 340.401  Definitions.

    (a) Seasonal employment means annually recurring periods of work of 
less than 12 months each year. Seasonal employees are permanent 
employees who are placed in nonduty/nonpay status and recalled to duty 
in accordance with preestablished conditions of employment.
    (b) Intermittent employment means employment without a regularly 
scheduled tour of duty.


Sec. 340.402  Seasonal employment.

    (a) Appropriate use. Seasonal employment allows an agency to 
develop an experienced cadre of employees under career appointment to 
perform work which recurs predictably year-to-year. Consistent with the 
career nature of the appointments, seasonal employees receive the full 
benefits authorized to attract and retain a stable workforce. As a 
result, seasonal employment is appropriate when the work is expected to 
last at least 6 months during a calendar year. Recurring work that 
lasts less than 6 months each year is normally best performed by 
temporary employees. Seasonal employment may not be used as a 
substitute for full-time employment or as a buffer for the full-time 
workforce.
    (b) Length of the season. Agencies determine the length of the 
season, subject to the condition that it be clearly tied to nature of 
the work. The season must be defined as closely as practicable so that 
an employee will have a reasonably clear idea of how much work he or 
she can expect during the year. To minimize the adverse impact of 
seasonal layoffs, an agency may assign seasonal employees to other work 
during the projected layoff period. While in nonpay status, a seasonal 
employee may accept other employment, Federal or non-Federal, subject 
to the regulations on political activity (part 733 of this title) and 
on employee responsibilities and conduct (part 735), as well as 
applicable agency policies. Subject to the limitation on pay from more 
than one position (5 U.S.C. 5533), a seasonal employee may hold more 
than one appointment.
    (c) Employment agreement. An employment agreement must be executed 
between the agency and the seasonal employee prior to the employee's 
entering on duty. At a minimum, the agreement must inform the employee:
    (1) That he or she is subject to periodic release and recall as a 
condition of employment,
    (2) The minimum and maximum period the employee can expect to work,
    (3) The basis on which release and recall procedures will be 
effected, and
    (4) The benefits to which the employee will be entitled while in a 
nonpay status.
    (d) Release and recall procedures. A seasonal employee is released 
to nonpay status at the end of a season and recalled to duty the next 
season. Release and recall procedures must be [[Page 3062]] established 
in advance and uniformly applied. They may be based on performance, 
seniority, veterans' preference, other appropriate indices, or a 
combination of factors. A seasonal layoff is not subject to the 
procedures for furlough prescribed in parts 351 and 752 of this title. 
Reduction in force or adverse action procedures, as applicable, are 
required for a seasonal layoff that is not in accordance with the 
employment agreement, for example, if an agency intends to have an 
employee work less than the minimum amount of time specified in the 
employment agreement. However, an agency may develop a new employment 
agreement to reflect changing circumstances.
    (e) Noncompetitive movement. Seasonal employees serving under 
career appointment may move to other positions in the same way as other 
regular career employees.


Sec. 340.403  Intermittent employment.

    (a) Appropriate use. An intermittent work schedule is appropriate 
only when the nature of the work is sporadic and unpredictable so that 
a tour of duty cannot be regularly scheduled in advance. When an agency 
is able to schedule work in advance on a regular basis, it has an 
obligation to document the change in work schedule from intermittent to 
part-time or full-time to ensure proper service credit.
    (b) Noncompetitive movement. Intermittent employees serving under 
career appointment may move to other positions in the same way as other 
regular career employees.

PART 351--REDUCTION IN FORCE

    38. The authority citation for part 351 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3502, 3503; Sec. 351.801 also issued 
under E.O. 12828, 58 FR 2965.

    39. In Sec. 351.202, paragraph (c)(7) is added to read as follows:


Sec. 351.202  Coverage.

* * * * *
    (c) * * *
    (7) A change in an employee's work schedule from other-than-full-
time to full-time. (A change from full-time to other than full-time for 
a reason covered in Sec. 351.201(A)(2) is covered by this part.)
    40. Section 351.203 is amended by adding alphabetically the 
definitions of ``Furlough'' and ``Undue Interruption'' to read as 
follows:


Sec. 351.203  Definitions.

* * * * *
    Furlough under this part means the placement of an employee in a 
temporary nonduty and nonpay status for more than 30 consecutive 
calendar days, or more than 22 workdays if done on a discontinuous 
basis, but not more than 1 year.
* * * * *
    Undue interruption means a degree of interruption that would 
prevent the completion of required work by the employee 90 days after 
the employee has been placed in a different position under this part. 
The 90-day standard should be considered within the allowable limits of 
time and quality, taking into account the pressures of priorities, 
deadlines, and other demands. However, a work program would generally 
not be unduly interrupted even if an employee needed more than 90 days 
after the reduction in force to perform the optimum quality or quantity 
of work. The 90-day standard may be extended if placement is made under 
this part to a low priority program or to a vacant position.
    41. In Sec. 351.301, the current paragraph is redesignated as 
paragraph (a) and paragraph (b) is added to read as follows:


Sec. 351.301  Applicability.

* * * * *
    (b) In a transfer of function, the function must cease in the 
losing competitive area and continue in an identical form in the 
gaining competitive area (i.e., in the gaining competitive area, the 
function continues to be carried out by competing employees rather than 
by noncompeting employees).
    42. In Sec. 351.302, paragraphs (f) and (g) are added to read as 
follows:


Sec. 351.302  Transfer of employees.

* * * * *
    (f) An agency may not separate an employee who declines to transfer 
with the function any sooner than it transfers employees who chose to 
transfer with the function to the gaining competitive area.
    (g) Agencies may ask employees in a canvass letter whether the 
employee wishes to transfer with the function when the function 
transfers to a different local commuting area. The canvass letter must 
give the employee information concerning entitlements available to the 
employee if the employee accepts the offer to transfer, and if the 
employee declines the offer to transfer. An employee may later change 
and initial acceptance offer without penalty. However, an employee may 
not later change an initial declination of the offer to transfer.
    43. In Sec. 351.303, paragraph (a) is revised and paragraph (c)(3) 
is added to read as follows:


Sec. 351.303  Identification of positions with a transferring function.

    (a) The competitive area losing the function is responsible for 
identifying the positions of competing employees with the transferring 
function. A competing employee is identified with the transferring 
function on the basis of the employee's official position. Two methods 
are provided to identify employees with the transferring function:
    (1) Identification Method One; and
    (2) Identification Method Two.
* * * * *
    (c) * * *
    (3) In determining what percentage of time an employee performs a 
function in the employee's official position, the agency may supplement 
the employee's official position description by the use of appropriate 
records (e.g., work reports, organizational time logs, work schedules, 
etc.).
* * * * *
    44. In Sec. 351.403, paragraph (a) is revised, paragraph (b)(5) is 
removed, and paragraph (b)(6) is redesignated as (b)(5) to read as 
follows:


Sec. 351.403  Competitive level.

    (a)(1) Each agency shall establish competitive levels consisting of 
all positions in a competitive area which are in the same grade (or 
occupational level) and classification series, and which are similar 
enough in duties, qualification requirements, pay schedules, and 
working conditions so that an agency may reassign the incumbent of one 
position to any of the other positions in the level without undue 
interruption.
    (2) Competitive level determinations are based on each employee's 
official position, not the employee's personal qualifications.
    (3) Sex may not be the basis for a competitive level determination, 
except for a position OPM designates that certification of eligibles by 
sex is justified.
    (4) A probationary period required by subpart I of part 315 of this 
chapter for initial appointment to a supervisory or managerial position 
is not a basis for establishing a separate competitive level.
* * * * *
    45. In Sec. 351.501, paragraphs (b)(1) and (b)(2) are revised to 
read as follows:


Sec. 351.501  Order of retention--competitive service.

* * * * * [[Page 3063]] 
    (b) * * *
    (1) Group I includes each career employee who is not serving a 
probationary period. (A supervisory or managerial employee serving a 
probationary period required by subpart I of part 315 of this title is 
in group I if the employee is otherwise eligible to be included in this 
group.) The following employees are in group I as soon as the employee 
completes any required probationary period for initial appointment:
    (i) An employee for whom substantial evidence exists of eligibility 
to immediately acquire status and career tenure, and whose case is 
pending final resolution by OPM (including cases under Executive Order 
10826 to correct certain administrative errors);
    (ii) An employee who acquires competitive status and satisfies the 
service requirement for career tenure when the employee's position is 
brought into the competitive service;
    (iii) An administrative law judge;
    (iv) An employee appointed under 5 U.S.C. 3104, which provides for 
the employment of specially qualified scientific or professional 
personnel, or a similar authority; and
    (v) An employee who acquires status under 5 U.S.C. 3304(c) on 
transfer to the competitive service from the legislative or judicial 
branches of the Federal Government.
    (2) Group II includes each career-conditional employee, and each 
employee serving a probationary period under subpart H of part 315 of 
this chapter. (A supervisory or managerial employee serving a 
probationary period required by subpart I of part 315 of this title is 
in group II if the employee has not completed a probationary period 
under subpart H of part 315 of this title.) Group II also includes an 
employee when substantial evidence exists of the employee's eligibility 
to immediately acquire status and career-conditional tenure, and the 
employee's case is pending final resolution by OPM (including cases 
under Executive Order 10826 to correct certain administrative errors).
* * * * *
    46. Section 351.502 is revised to read as follows:


Sec. 351.502  Order of retention--excepted service.

    (a) Competing employees shall be classified on a retention register 
in tenure groups on the basis of their tenure of employment, veteran 
preference, length of service, and performance in descending order as 
set forth under Sec. 351.501(a) for competing employees in the 
competitive service.
    (b) Groups are defined as follows:
    (1) Group I includes each permanent employee whose appointment 
carries no restriction or condition such as conditional, indefinite, 
specific time limit, or trial period.
    (2) Group II includes each employee:
    (i) Serving a trial period; or
    (ii) Whose tenure is equivalent to a career-conditional appointment 
in the competitive service in agencies having such excepted 
appointments.
    (3) Group III includes each employee:
    (i) Whose tenure is indefinite (i.e., without specific time limit), 
but not actually or potentially permanent;
    (ii) Whose appointment has a specific time limitation of more than 
1 year; or
    (iii) Who is currently employed under a temporary appointment 
limited to 1 year or less, but who has completed 1 year of current 
continuous service under a temporary appointment with no break in 
service of 1 workday or more.
    47. In Sec. 351.506, paragraph (b) is revised to read as follows:


Sec. 351.506  Effective date of retention standing.

* * * * *
    (b) The retention standing of each employee retained in a 
competitive level as an exception under Sec. 351.607 or Sec. 351.608 is 
determined as of the date the employee would have been released from 
the competitive level had the exception not been used. The retention 
standing of each employee retained under either exception remains fixed 
until completion of the reduction in force action which resulted in the 
temporary retention.
* * * * *
    48. In Sec. 351.701, paragraph (a) is revised to read as follows:


Sec. 351.701   Assignment involving displacement.

    (a) General. When a group I or II competitive service employee with 
a current annual performance rating of record of minimally successful 
(Level 2) or equivalent, or higher, is released from a competitive 
level, an agency shall offer assignment, rather than furlough or 
separate, in accordance with paragraphs (b), (c), and (d) of this 
section to another competitive position which requires no reduction, or 
the lease possible reduction, in representative rate. The employee must 
be qualified for the offered position. The offered position shall be in 
the same competitive area, last at least 3 months, and have the same 
type of work schedule (e.g., full-time, part-time, intermittent, or 
seasonal) as the position from which the employee is released. Upon 
accepting an offer of assignment, or displacing another employee under 
this part, an employee retains the same status and tenure in the new 
position. The promotion potential of the offered position is not a 
consideration in determining an employee's right of assignment.
* * * * *
    49. In Sec. 351.702, paragraph (a)(4) is revised to read as 
follows:


Sec. 351.702   Qualifications for assignment.

    (a) * * *
    (4) Has the capacity, adaptability, and special skills needed to 
satisfactorily perform the duties of the position without undue 
interruption. This determination includes recency of experience, when 
appropriate.
* * * * *
    50. In Sec. 351.704, paragraph (b)(5) is added to read as follows:


Sec. 351.704   Rights and prohibitions.

* * * * *
    (b) * * *
    (5) Authorize or permit an agency to displace an employee or to 
satisfy a competing employee's right to assignment by assigning the 
employee to a position with a different type of work schedule (e.g., 
full-time, part-time, intermittent, or seasonal) than the position from 
which the employee is released.

PART 353--RESTORATION TO DUTY FROM MILITARY SERVICE OR COMPENSABLE 
INJURY

    51. Part 353 is revised to read as follows:

PART 353--RESTORATION TO DUTY FROM MILITARY SERVICE OR COMPENSABLE 
INJURY

Subpart A--General Provisions

Sec.
353.101  Scope.
353.102  Definitions.
353.103  Persons covered.
353.104  Notification of rights and obligations.
353.105  Maintenance of records.
353.106  Personnel actions during employee's absence.
353.107  Status upon reemployment.
353.108  Effect of performance and conduct on restoration rights.
353.109  Transfer of function to another agency.
353.110  OPM placement assistance.
353.111  Restoration rights of TAPER employees.

Subpart B--Military Service

353.201  Leaves of absence.
353.202  Mandatory restoration.
353.203  Physical disqualification.
353.204  Retention protection.
353.205  Prohibition against discrimination. [[Page 3064]] 

Subpart C--Compensable Injury

353.301  Restoration rights.
353.302  Status upon reemployment.

Subpart D--Appeal Rights

353.401  Appeals to the Merit Systems Protection Board.

    Authority: 38 U.S.C. 4301, et seq., and 5 U.S.C. 8151.

Subpart A--General Provisions


Sec. 353.101  Scope.

    The rights and obligations of employees and agencies in connection 
with leaves of absence or restoration to duty following military 
service under 38 U.S.C. 4301 et seq., and restoration under 5 U.S.C. 
8151 for employees who sustain compensable injuries, are subject to the 
provisions of this part. Subpart A covers those provisions that are 
common to both of the above groups of employees. Subpart B deals with 
provisions that apply just to military duty and subpart C covers 
provisions that pertain just to injured employees. Subpart D covers the 
appeal rights of both groups.


Sec. 353.102  Definitions.

    In this part:
    Agency means:
    (1) With respect to restoration following a compensable injury, any 
department, independent establishment, agency, or corporation in the 
executive branch, including the U.S. Postal Service and the Postal Rate 
Commission, and any agency in the legislative or judicial branch; and
    (2) With respect to military duty, all of the foregoing except for 
any agency in the legislative or judicial branch, but including the 
Government of the District of Columbia.
    Fully recovered means compensation payments have been terminated on 
the basis that the employee is able to perform all the duties of the 
position he or she left or an equivalent one.
    Injury means a compensable injury sustained under the provisions of 
5 U.S.C. chapter 81, subchapter I, and includes, in addition to 
accidental injury, a disease proximately caused by the employment.
    Leave of absence means military leave, annual leave, leave without 
pay (LWOP), furlough, continuation of pay, or any combination of these.
    Military duty means a period of:
    (1) Active duty for training or for service in the Armed Forces of 
the United States;
    (2) Inactive duty training in the Armed Forces of the United 
States; and
    (3) Active duty in the Public Health Service that is covered by 38 
U.S.C. 4304 (b). For the purpose of coverage under 38 U.S.C. 4304 (c) 
and (d), full-time training or other full-time duty performed by a 
member of the National Guard under 32 U.S.C. 316, 502, 503, 504, or 505 
is considered active duty for training in the Armed Forces of the 
United States. For the purpose of 38 U.S.C. 4304 (d), inactive duty 
training performed by that member under 32 U.S.C. 502 or 37 U.S.C. 206, 
301, 309, 402, or 1002 is considered inactive duty training.
    Partially recovered means an injured employee, though not yet able 
to resume the full range of his or her regular duties, has recovered 
sufficiently to return to part-time or light duty or to another 
position with less demanding physical requirements. Ordinarily, it is 
expected that a partially recovered employee will fully recover 
eventually.
    Physically disqualified means that:
    (1) (i) For medical reasons the employee is unable to perform the 
duties of the position formerly held or an equivalent one, or
    (ii) There is a medical reason to restrict the individual from some 
or all essential duties because of possible incapacitation (for 
example, a seizure) or because of risk of health impairment (such as 
further exposure to a toxic substance for an individual who has already 
shown the effects of such exposure).
    (2) The condition is considered permanent without little likelihood 
for improvement or recovery.


Sec. 353.103  Persons covered.

    (a) The provisions of this part concerned with military duty cover 
each employee of an agency who enters on military duty from:
    (1) A career or career-conditional appointment in the competitive 
service; or
    (2) An appointment with time limitation in a position outside the 
competitive service.
    (b) The provisions of this part concerning employee injury cover a 
civil officer or employee in any branch of the Government of the United 
States, including an officer or employee of an instrumentality wholly 
owned by the United States, who was separated or furloughed from an 
appointment without time limitation as a result of a compensable 
injury; but do not include--
    (1) A commissioned officer of the Regular Corps of the Public 
Health Service;
    (2) A commissioned officer of the Reserve Corps of the Public 
Health Service on active duty; or
    (3) A commissioned officer of the National Oceanic and Atmospheric 
Administration.
    (c) Section 353.111 covers the restoration rights of employees 
serving under temporary appointments pending establishment of a 
register (TAPER).


Sec. 353.104  Notification of rights and obligations.

    When an agency separates, places on leave of absence, restores or 
fails to restore an employee because of military duty or compensable 
injury, it shall notify the employee his or her rights, obligations, 
and benefits relating to Government employment, including any appeal 
rights to the Merit Systems Protection Board (MSPB) as required by 
Sec. 1201.21 of this title, or where appropriate, the right to grieve 
under a negotiated grievance procedure. However, regardless of 
notification, an employee is still obligated to exercise due diligence 
in ascertaining his or her rights, and to seek reemployment within the 
time limits provided by chapter 43 of title 38 of the U.S. Code, for 
reemployment after military service or as soon as he or she is able 
after a compensable injury.


Sec. 353.105  Maintenance of records.

    Each agency shall identify the position vacated by an employee who 
is injured or leaves to enter on military duty. It shall also maintain 
the necessary records to assure that all such employees are preserved 
the rights and benefits granted by this law and this part.


Sec. 353.106  Personnel actions during employee's absence.

    (a) Agency promotion plans must provide a mechanism by which 
employees who are absent because of military duty or compensable injury 
can be considered for promotion.
    (b) An employee whose position is reclassified while he or she is 
absent because of military duty or compensable injury shall be 
considered for that position in accordance with the provisions in part 
335 of this chapter.


Sec. 353.107  Status upon reemployment.

    Upon reemployment, an employee who was absent on military duty or 
because of compensable injury is generally entitled to be treated as 
though he or she had never left. This means the entire period from the 
time the employee entered military service or was injured until he or 
she was reemployed is creditable for purposes of rights and benefits 
based upon seniority and length of service, including within-grade 
increases, career tenure, [[Page 3065]] completion of probation, and 
leave rate accrual.


Sec. 353.108  Effect of performance and conduct on restoration rights.

    The laws covered by this part do not permit an agency to circumvent 
the protections afforded by other laws to employees who face the 
involuntary loss of their positions. Thus, an employee may not be 
denied restoration rights because of poor performance or conduct that 
occurred prior to the employee's departure for compensable injury or 
military duty. However, separation for cause that is substantially 
unrelated to the injury or to the performance of military duty negates 
restoration rights. If during the period of injury or military duty the 
employee's conduct is such that it would disqualify him or her for 
employment under OPM or agency regulations, restoration rights may be 
denied.


Sec. 353.109  Transfer of function to another agency.

    If the function of an employee absent on military duty or 
compensable injury is transferred to another agency, and if the 
employee would have been transferred with the function under part 351 
of this chapter had he or she not been absent, the employee is entitled 
to be reinstated to a position in the gaining agency that is equivalent 
to the one he or she left. It shall also assume the obligation to 
restore the employee in accordance with law and this part.


Sec. 353.110  OPM placement assistance.

    (a) Employee returning from military duty.
    (1) OPM will provide placement assistance to an employee with 
restoration rights in the executive or legislative branch, who either 
has competitive status, or if in the legislative branch is able to 
acquire competitive status under 5 U.S.C. 3304(c), provided--
    (i) The employee's executive branch agency is abolished and its 
functions are not transferred, or it is not possible for the agency to 
restore the employee, or
    (ii) It is not possible for a legislative branch employee to be 
restored in the legislative branch.
    (2) If OPM determines the individual is qualified for a position in 
the executive branch which is either vacant or filled under temporary 
appointment, the returning employee will be offered the position.
    (b) Employee returning from compensable injury. OPM will provide 
placement assistance to an employee with restoration rights in the 
executive, legislative, or judicial branches who cannot be placed in 
his or her former agency and who either has competitive status or is 
eligible to acquire it under 5 U.S.C. 3304(c). If the employee's agency 
is abolished and its functions are not transferred, or it is not 
possible for the employee to be restored in his or her former agency, 
OPM will provide placement assistance by enrolling the employee in 
OPM's Priority Placement Program under part 330 of this chapter.
    (c) This section does not apply to employees serving under a 
temporary appointment pending establishment of a register (TAPER).


Sec. 353.111  Restoration rights of TAPER employees.

    An employee serving in the competitive service under a temporary 
appointment pending establishment of a register (TAPER) under 
Sec. 316.201 of this chapter (other than an employee serving in a 
position classified above GS-15), is entitled to be restored to the 
position he or she left or an equivalent one in the same commuting 
area.

Subpart B--Military Service


Sec. 353.201  Leaves of absence.

    (a) Entitlement.
    (1) The following employees are entitled under 38 U.S.C. 4304 to a 
leave of absence in connection with military duty:
    (i) A member of a Reserve component (Reserve or National Guard) who 
performs active duty for training or inactive duty (38 U.S.C. 4304(d)), 
or
    (ii) An employee who reports for enlistment, induction or physical 
examination (38 U.S.C. 4304(e)).
    (2) There is no limitation in law as to the timing or duration of 
leaves of absence, nor is there any authority for an agency to deny a 
leave of absence. If an agency has concerns about the timing, 
frequency, or length of an employee's requests for a leave of absence, 
it should contact the commander of the military unit to determine if 
the duty can be changed.
    (b) Authorization required. To be eligible for a leave of absence, 
the employee must be under military orders. Any of the following is 
acceptable evidence of orders:
    (1) Written military orders,
    (2) An inactive duty training or ``drill schedule'' published by 
the employee's military command or unit, or
    (3) Verbal confirmation of such orders from the employee's military 
command or unit or military superior.
    (c) Work schedules. An agency is not required to reschedule an 
employee's work in order to accommodate his or her Reserve obligation, 
and may not require the employee to reschedule his or her work in order 
to perform military duty on his or her own time.
    (d) Return to duty.
    (1) An employee on a leave of absence for military duty is required 
to report for work at the beginning of the first regularly scheduled 
workday following release, rejection for service or completion of 
physical examination. If hospitalized incident to training or 
examination, the employee is required to report at the beginning of the 
first regularly scheduled workday following discharge from 
hospitalization, or within 1 year or release from military duty, 
whichever is earlier. In all cases, necessary travel time or other 
delays beyond the individual's control may extend the reporting date. 
An employee who fails to report within these time limits is subject to 
normal agency disciplinary procedures related to absences from work.
    (2) An employee on a leave of absence returns to the position he or 
she left, or if applicable, to the position to which reassigned or 
promoted while absent. The employee is entitled to the same seniority, 
status, pay and vacation he or she would have had if not absent on 
military duty.
    (3) An employee returning from a leave of absence has no special 
protections against discharge without cause. However, the employee may 
not be disadvantaged where vacation leave is concerned. Thus, insofar 
as possible, the employee is entitled to have an annual vacation period 
of extended leave for rest and recreation approved for the same time as 
it would ordinarily have been granted.


Sec. 353.202  Mandatory restoration.

    (a) Basic entitlement. An individual returning from military duty 
who is entitled to restoration rights under 38 U.S.C. 4301 (inducted) 
or 4304 (a), (b), or (c) (enlisted, called to active duty, Reservist 
entered on active duty, or Reservist serving basic training), must be 
restored as soon as possible after making application, but in no event 
later than 30 days after the individual's release from military duty.
    (b) Conditions. To be eligible for restoration, the employee must 
have left his or her employment for the purpose of entering the 
military, must satisfactorily complete his or her period of service, 
and apply for restoration--
    (1) Within 90 days of release from active duty (or from 
hospitalization continuing after discharge for a period of no more than 
1 year) in the case of employees returning under 38 U.S.C. 4304 (a) or 
(b); and
[[Page 3066]]

    (2) Within 31 days of release from active duty (or from 
hospitalization incident to the military service, or 1 year after the 
employee's scheduled release from military training, whichever is 
earlier), in the case of employees returning under 38 U.S.C. 4304(c).
    (c) Length of military duty. Each time an employee leaves his or 
her employment to enter military service, he or she is subject to the 
time limits prescribed in 38 U.S.C. 4304 (a) and (b) for purposes of 
restoration rights. Generally, these are as follows:
    (1) Regular active duty soldiers have 4 years plus 1 additional 
year if the additional duty was ``at the request and for the 
convenience of the Federal Government.'' (Their orders or DD Form 214 
must so state.) Also, in the event of a Presidential call-up such as 
Operation Desert Storm, numerous active duty troops in key positions 
may be held over beyond their enlistments. This additional duty is 
covered because it is ``additional service imposed pursuant to law.''
    (2) Reserves and National Guard are covered under 38 U.S.C. 
4304(b)(2). Normally, their restoration rights are limited to 4 years. 
(They do not get the extra 5th year ``at the request and for the 
convenience of the Federal Government.'') To go beyond 4 years, their 
service has to be other than for training, it is limited by the time 
period that the President is authorized to call up troops (currently 
180 days), and, if voluntary, their orders or DD Form 214 must say that 
the additional duty was at the request and for the convenience of the 
Government.
    (3) Mobilization authority.
    (i) Since 1978, 10 U.S.C. 673b has authorized the President to call 
up as many as 200,000 members of the Selected Reserve for up to 90 
days. In 1986, this authority was broadened to allow the President to 
extend the call-up for an additional 90 days, if necessary, without 
regard to a state of national emergency or war, for the purpose of 
augmenting the active component forces for an operational mission.
    (ii) The President is also authorized by 10 U.S.C. 673a to call up 
as many as one million members of the Ready Reserves for not longer 
than 24 months in a national emergency.
    (iii) Under 10 U.S.C. 672, with a declaration of war or national 
emergency by the Congress, all Reserve components, including Standby 
and Retired, could be ordered to active duty for the duration of the 
war, plus 6 months.


Sec. 353.203  Physical disqualification.

    An individual who is physically disqualified for the former 
position or an equivalent one because of disability sustained during 
military service shall be placed in the agency in another position for 
which qualified that will provide the employee with the same seniority, 
status, and pay, or the nearest approximation consistent with the 
circumstances in each case.


Sec. 353.204  Retention protection.

    (a) While on military duty. An employee with restoration rights 
under 38 U.S.C. 4301 or 4304 (a), (b), or (c) may not be demoted or 
separated (other than military separation) while on military duty. He 
or she is not a ``competing employee'' under Sec. 351.404 of this 
chapter. If the employee's position is abolished during such absence, 
the agency must reassign the employee to another position of like 
seniority, status, and pay. An employee on a leave of absence under 38 
U.S.C. 4304 (d) or (e) has no special protections in a reduction in 
force.
    (b) Upon reemployment. Upon reemployment, an employee with a 
restoration right under 38 U.S.C. 4301 or 4304 (a) or (b) may not be 
discharged for a period of 1 year except for cause. A member of a 
Reserve component returning from an initial period of active duty for 
training under 38 U.S.C. 4304(c) may not be discharged for a period of 
6 months except for cause. (Reduction in force is not considered ``for 
cause.'') Employees returning from a leave of absence under 38 U.S.C. 
4304 (d) or (e) have no special protections against discharge.
    (c) TAPER employees. This section does not apply to employees 
serving under a temporary appointment pending establishment of a 
register.


Sec. 353.205  Prohibition against discrimination.

    A person who seeks or holds a position in the Federal Government 
may not be denied hiring, retention in employment, or any promotion or 
other incident or advantage of employment because of any obligation as 
a member of a Reserve component of the Armed Forces.

Subpart C--Compensable Injury


Sec. 353.301   Restoration rights.

    (a) Fully recovered within 1 year. An employee who fully recovers 
from a compensable injury within 1 year from the date eligibility for 
compensation began (or from the time compensable disability recurs if 
the recurrence begins after the employee resumes regular full-time 
employment with the United States), is entitled to be restored 
immediately and unconditionally to his or her former position or an 
equivalent one. Although these restoration rights are agencywide, the 
employee's basic entitlement is to the former position or equivalent in 
the local commuting area the employee left. If a suitable vacancy does 
not exist, the employee is entitled to displace an employee occupying a 
continuing position under temporary appointment or tenure group III. If 
there is no such position in the local commuting area, the agency may 
offer the employee a position (as described in this paragraph) in 
another location. This paragraph also applies when an injured employee 
accepts a lower-graded position in lieu of separation and subsequently 
fully recovers. A fully recovered employee is expected to return to 
work immediately upon the cessation of compensation.
    (b) Fully recovered after 1 year. An employee who was separated 
because of a compensable injury and whose full recovery takes longer 
than 1 year from the date eligibility for compensation began (or from 
the time compensable disability recurs if the recurrence begins after 
the injured employee resumes regular full-time employment with the 
United States), is entitled to priority consideration, agencywide, for 
restoration to the position he or she left or an equivalent one 
provided he or she applies for reappointment within 30 days of 
cessation of compensation. Priority consideration is accorded by 
entering the individual on the agency's reemployment priority list for 
the competitive service or reemployment list for the excepted service. 
If the individual cannot be placed in the former commuting area, he or 
she is entitled to priority consideration for an equivalent position 
elsewhere in the agency. (See parts 302 and 330 of this chapter for 
more information on how this may be accomplished for the excepted and 
competitive services, respectively.) This subpart also applies when an 
injured employee accepts a lower-graded position in lieu of separation 
and subsequently fully recovers.
    (c) Physically disqualified. An individual who is physically 
disqualified for the former position or equivalent because of a 
compensable injury is entitled to be placed in another position for 
which qualified that will provide the employee with the same seniority, 
status, and pay, or the nearest approximation thereof, consistent with 
the circumstances in each case. This right is agencywide and applies 
for a period of 1 year from the date eligibility [[Page 3067]] for 
compensation begins. After 1 year, the individual is entitled to the 
rights accorded individuals who fully or partially recover, as 
applicable.
    (d) Partially recovered. Agencies must make every effort to 
restore, according to the circumstances in each case, an individual who 
has partially recovered from a compensable injury and who is able to 
return to limited duty. At a minimum, this would mean treating these 
employees substantially the same as other handicapped individuals under 
the Rehabilitation Act of 1973, as amended. (See 29 U.S.C. 791(b) and 
794.) If the individual fully recovers, he or she is entitled to be 
considered for the position held at the time of injury, or an 
equivalent one. A partially recovered employee is expected to seek 
reemployment as soon as he or she is able.


Sec. 353.302   Status upon reemployment.

    An individual who is restored following a compensable injury is 
generally entitled to be treated as though he or she had never left. 
This means that the entire period the employee was receiving 
compensation is creditable for purposes of rights and benefits based 
upon length of service, including within-grade increases, career 
tenure, leave rate accrual, and completion of probation. However, an 
injured employee enjoys no special protections in a reduction in force. 
Separation by reduction in force or for cause while on compensation 
terminates entitlement to credit for the subsequent period the 
individual continues to receive compensation, and also means the 
individual has no restoration rights.

Subpart D--Appeal Rights


Sec. 353.401   Appeals to the Merit Systems Protection Board.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
an employee or former employee of an agency in the executive branch 
(including the U.S. Postal Service and the Postal Rate Commission) who 
is covered by this part may appeal to the MSPB an agency's failure to 
restore, improper restoration, or failure to return an employee 
following a leave of absence. All appeals are to be submitted in 
accordance with MSPB's regulations.
    (b) An individual who fully recovers from a compensable injury more 
than 1 year after compensation begins may appeal to MSPB as provided 
for in parts 302 and 330 of this chapter for excepted and competitive 
service employees, respectively.
    (c) An individual who is partially recovered from a compensable 
injury may appeal to MSPB for a determination of whether the agency is 
acting arbitrarily and capriciously in denying restoration. Upon 
reemployment, a partially recovered employee may also appeal the 
agency's failure to credit time spent on compensation for purposes of 
rights and benefits based upon length of service.

PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATION 
(MISCELLANEOUS)

Subpart A--Motor Vehicle Operators

    52. The authority citation for subpart A of part 930 continues to 
read as follows:

    Authority: 5 U.S.C. 3301, 3320, 7301; 40 U.S.C. 491; E.O. 10577, 
3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., 
p. 306. (Separate authority is listed under Sec. 930.107).

    52. In Sec. 930.105, paragraph (a) is revised to read as follows:


Sec. 930.105  Minimum requirements for competitive and excepted service 
positions.

    (a) An agency may fill motor vehicle operator positions in the 
competitive or excepted services by any of the methods normally 
authorized for filling positions. Applicants for motor vehicle operator 
positions and incidental operators must meet the following requirements 
for these positions:
    (1) Possess a safe driving record;
    (2) Possess a valid State license;
    (3) Except as provided in Sec. 930.107, pass a road test; and
    (4) Demonstrate that they are medically qualified to operate the 
appropriate motor vehicle safely in accordance with the standards and 
procedures established in this part.
* * * * *
    54. Section 930.106 is revised to read as follows:


Sec. 930.106  Details in the competitive service.

    An agency may detail an employee to an operator position in the 
competitive service for 30 days or less when the employee possesses a 
State license. For details exceeding 30 days, the employee must meet 
all the requirements of Sec. 930.105 and any applicable OPM and agency 
regulations governing such details.
    55. Section 930.108 is revised to read as follows:


Sec. 930.108  Periodic medical evaluation.

    At least once every 4 years, each agency will ensure that employees 
who operate Government-owned or leased vehicles are medically able to 
do so without undue risk to themselves or others. When there is a 
question about an employee's ability to operate a motor vehicle safely, 
the employee may be referred for a medical examination in accordance 
with the provisions of part 339 of this chapter.
    56. In Sec. 930.109 paragraph (b) is revised to read as follows:


Sec. 930.109  Periodic review and renewal of authorization.

* * * * *
    (b) An agency may renew the employee's authorization only after the 
appropriate agency official has determined that the employee is 
medically qualified and continues to demonstrate competence to operate 
the type of motor vehicle to which assigned based on a continued safe 
driving record.

[FR Doc. 95-830 Filed 1-10-95; 3:46 pm]
BILLING CODE 6325-01-M