[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Rules and Regulations]
[Pages 55173-55174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26851]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 209 / Monday, October 30, 1995 / 
Rules and Regulations  

[[Page 55173]]


OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 213

RIN 3206-AH15


Appointment of Nonstatus Employees Entitled to Placement in a 
Different Agency Upon Restoration to Duty From Uniformed Service

AGENCY: Office of Personnel Management.

ACTION: Interim regulations with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
regulations to permit Schedule A appointments of certain excepted 
service employees who are entitled to placement in a different agency 
if their original employing agency cannot reemploy them following 
uniformed service. These regulations implement the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 
103-353, which mandates such placement. Interim regulations setting out 
the categories of employees who are eligible for this assistance and 
OPM's responsibility for placing them were published for comment on 
September 1, 1995 (60 FR 45650).

DATES: Effective: October 30, 1995.
    Comments must be received on or before December 29, 1995.

ADDRESSES: Send or deliver comments to Leonard R. Klein, Associate 
Director for Employment, U.S. Office of Personnel Management, 1900 E 
Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:
Raleigh M. Neville, (202) 606-0830.

SUPPLEMENTARY INFORMATION: USERRA clarifies, expands, and strengthens 
the restoration rights of employees who perform active duty in a 
uniformed service. Among the changes are a requirement that OPM place 
in the executive branch certain categories of employees when their 
former agencies determine that it is ``impossible or unreasonable'' to 
reemploy them. The employees entitled to special placement assistance 
are:
    (1) Executive branch employees (including those serving under 
excepted or time-limited appointments) whose agencies no longer exist 
and the functions have not been transferred, or it is otherwise 
impossible or unreasonable to reemploy them;
    (2) Legislative and judicial branch employees;
    (3) National Guard Technicians; and
    (4) Employees of the intelligence agencies.
    Placement in executive branch positions frequently requires that an 
individual have competitive civil service status or be hired through 
competitive examination. Executive branch employees who left career or 
career-conditional appointments or who had established reinstatement 
eligibility based on prior service are eligible for noncompetitive 
placement in competitive service positions. Executive branch employees 
who left temporary or term appointments are generally eligible for 
noncompetitive reappointment to complete any unexpired portion of those 
appointments. The remaining employees entitled to placement, however, 
have no status that would permit their noncompetitive appointment in 
the competitive service.
    Under USERRA, the employees are entitled to placement in positions 
that are equivalent in terms of pay, grade, and status to the positions 
they left. Since the employees covered by this interim regulation left 
positions filled under excepted appointment, it is appropriate that 
they be placed in the executive branch under an excepted appointment. 
Such appointment would permit the restored employees to continue 
serving indefinitely (or up to any time limit of their original 
appointment) and to be promoted or reassigned to other positions in 
their new agency, but would not give them competitive status they could 
not have earned in their original positions.
    Excepted appointing authority already exists under Sec. 213.3102(j) 
for National Guard Technicians who are applying for or receiving a 
civil service annuity based on a disability that disqualifies them from 
membership in the National Guard or from holding the military grade 
required as a condition of their Technician employment. These interim 
regulations expand that authority to cover nonstatus employees entitled 
to placement under USERRA, with one exception.
    The Schedule A authority does not cover employees who held Schedule 
C appointments or appointments under statutory authorities that 
specified the employees served at the discretion, will, or pleasure of 
the agency. We find that such at-will employees are not entitled to 
placement in other agencies if their original employing agency declines 
to reemploy them. Since their original appointments could be terminated 
at any time, their positions afforded ``no reasonable expectation that 
employment will continue indefinitely or for a reasonable period,'' as 
required by USERRA.

Waiver of Notice of Proposed Rulemaking

    Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists 
for waiving the general notice of proposed rulemaking, because the 
statutory provisions for reemployment in other agencies became 
effective on December 12, 1994. The Schedule A appointing authority set 
out in these interim regulations is needed for practical implementation 
of that law.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant impact 
on a substantial number of small entities because it pertains only to 
Federal employees and agencies.

List of Subjects in 5 CFR Part 213

    Government employees, Reporting and recordkeeping requirements.

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

    Accordingly, OPM is amending part 213, as follows:

PART 213--EXCEPTED SERVICE

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

    Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958 
Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103; 
Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h), 
and 8456; E.O. 12364, 

[[Page 55174]]
47 FR 22931, 3 CFR 1982 Comp., p. 185; and Pub. L. 103-353.

    2. In Sec. 213.3102, paragraph (j) is revised to read as follows:


Sec. 213.3102  Entire executive civil service.

* * * * *
    (j) Positions filled by current or former Federal employees 
eligible for placement under special statutory provisions. Appointments 
under this authority are subject to the following conditions.
    (1) Eligible employees. (i) Persons previously employed as National 
Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement 
under Sec. 353.110 of this chapter, or who are applying for or 
receiving an annuity under the provisions of 5 U.S.C. 8337(h) or 8456 
by reason of a disability that disqualifies them from membership in the 
National Guard or from holding the military grade required as a 
condition of their National Guard employment.
    (ii) Executive branch employees (other than employees of 
intelligence agencies) who are entitled to placement under Sec. 353.110 
but who are not eligible for reinstatement or noncompetitive 
appointment under the provisions of part 315 of this chapter.
    (iii) Legislative and judicial branch employees and employees of 
the intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are 
entitled to placement under Sec. 353.110.
    (2) Employees excluded. Employees who were last employed in 
Schedule C or under a statutory authority that specified the employee 
served at the discretion, will, or pleasure of the agency are not 
eligible for appointment under this authority.
    (3) Position to which appointed. Employees who are entitled to 
placement under Sec. 353.110 will be appointed to a position that OPM 
determines is equivalent in pay and grade to the one the individual 
left, unless the individual elects to be placed in a position of lower 
grade or pay. National Guard Technicians whose eligibility is based 
upon a disability may be appointed at the same grade, or equivalent, as 
their National Guard Technician position or at any lower grade for 
which they are available.
    (4) Conditions of appointment. (i) Individuals whose placement 
eligibility is based on an appointment without time limit will receive 
appointments without time limit under this authority. These appointees 
may be reassigned, promoted, or demoted to any position within the same 
agency for which they qualify.
    (ii) Individuals who are eligible for placement under Sec. 353.110 
based on a time-limited appointment will be given appointments for a 
time period equal to the unexpired portion of their previous 
appointment.
* * * * *
[FR Doc. 95-26851 Filed 10-27-95; 8:45 am]
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