[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Rules and Regulations]
[Pages 34257-34258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16825]



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 Rules and Regulations
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  Federal Register / Vol. 63, No. 121 / Wednesday, June 24, 1998 / 
Rules and Regulations  

[[Page 34257]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 317 and 335

RIN 3206-AH92


Employment in the Senior Executive Service; Promotion and 
Internal Placement

AGENCY: Office of Personnel Management.

ACTION: Interim regulations with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
regulations to correct existing regulations which are inconsistent with 
statutory provisions governing the 120-day moratorium on involuntary 
reassignments of career Senior Executive Service (SES) appointees 
following the appointment of a new agency head or a new noncareer 
immediate supervisor; and to authorize agencies to reinstate SES career 
appointees who have competitive service reinstatement eligibility to 
career appointments in any competitive service position for which 
qualified, including Senior Level (SL) positions.

EFFECTIVE DATE: July 24, 1998.

COMMENTS DUE: August 24, 1998.

ADDRESSES: Send or deliver comments to Ms. K. Joyce Edwards, Assistant 
Director for Executive Policy and Services, Office of Executive 
Resources, Room 6484, U.S. Office of Personnel Management, 1900 E 
Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Mr. Bede Bender (202) 606-1784.

SUPPLEMENTARY INFORMATION:

120-Day Moratorium on Involuntary Reassignments

    The law in 5 U.S.C. 3395(e)(1) provides for a 120-day moratorium on 
involuntary reassignments of SES career appointees following the 
appointment of a new agency head or the career appointee's most 
immediate supervisor who is a noncareer appointee and who has the 
authority to make an initial appraisal of the career appointee's 
performance. The law also provides in Sec. 3395(e)(2) for an exception 
to the moratorium by permitting involuntary reassignments during the 
120-day period when the reassignment results from a final 
unsatisfactory performance rating issued prior to the appointment that 
triggered the moratorium. In situations which meet this criterion for 
exception, it does not matter if a new agency head or noncareer 
supervisor (with authority to make an initial performance appraisal) is 
appointed subsequently, i.e., after issuance of a final unsatisfactory 
performance rating, nor does it matter if there has been a change in 
the agency official responsible for taking the reassignment action (the 
language of the current regulation). The reassignment action may 
proceed if the conditions for the exception are met.
    In instances where there is a change in agency head, it is possible 
that career appointees will be subject to more than one moratorium--
which almost certainly will not run concurrently but may overlap to 
some degree, i.e., appointment of a new agency head often results in 
some turnover among noncareer appointees. When applying the regulation 
in these instances, it is important to look at the starting date of 
each moratorium independently, in relation to the date on which the 
unsatisfactory rating was issued. For example, if a final rating of 
unsatisfactory is issued after the appointment of a new agency head, 
the moratorium initiated by that appointment must be allowed to run its 
course before any involuntary reassignment action can be effected. If a 
new noncareer supervisor is appointed after the new agency head, and 
also after the issuance of the unsatisfactory rating (i.e., when the 
rating is issued between the appointment of the new agency head and the 
new noncareer supervisor), then the second moratorium (i.e., the 
moratorium triggered by the appointment of the new noncareer 
supervisor) does not apply to an involuntary reassignment resulting 
from the unsatisfactory rating.

Conversion From Career SES to Career SL Appointment

    Senior Level (SL) positions established under 5 CFR Part 319 are in 
the competitive service and are covered by OPM regulations governing 
the competitive service generally. Currently, under 5 CFR 
335.103(c)(1)(vi), agencies must follow competitive procedures in 
agency merit promotion plans in order to reinstate a person to a 
permanent or temporary position at a higher grade or with more 
promotion potential than a position previously held on a permanent 
basis in the competitive service. This means that career SES members 
may be reinstated to competitive service positions only at the same 
grade or pay level as the highest position they held previously in the 
competitive service.
    By law, SES and SL positions are above the GS-15 level. In nearly 
all cases, career SES appointees have already competed at least 
Governmentwide. This regulatory change will recognize that fact by 
permitting reinstatement of career SES appointees to competitive 
service positions above the GS-15 level.

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 for the following 
reasons: (1) The purpose of the interim regulations pertaining to the 
120-day moratorium on involuntary reassignments is to correct existing 
regulations which are inconsistent with statutory provisions governing 
the involuntary reassignment of career Senior Executive Service 
appointees. Because this change is taken directly from statute, public 
comment is unnecessary. (2) The provision pertaining to conversion of 
SES career to Senior Level career appointments was originally 
incorporated in proposed Promotion and Internal Placement regulations 
published in the Federal Register on February 20, 1996, in Volume 61, 
Number 34, page 6327. No comments were received pertaining to the 
proposed regulatory change.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant impact 
on a substantial number of small entities

[[Page 34258]]

because it pertains only to Federal agencies and employees.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Parts 317 and 335

    Government employees.

U.S. Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is amending 5 CFR part 317 as follows:

PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE

    1. The authority citation for part 317 continues to read as 
follows:

    Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3397, 3593, and 
3595.

    2. In Sec. 317.901, the text in paragraph (c) and (c)(1) is 
republished for the convenience of the reader, paragraph (c)(2) is 
revised to read as follows:


Sec. 317.901  Reassignments.

* * * * *
    (c) A career appointee may not be involuntarily reassigned within 
120 days after the appointment of the head of an agency, or within 120 
days after the appointment of the career appointee's most immediate 
supervisor who is a noncareer appointee and who has the authority to 
make an initial appraisal of the career appointee's performance under 
subpart C of part 430 of this chapter.
    (1) In this paragraph--
    (i) Head of an agency means the head of an executive or military 
department or the head of an independent establishment.
    (ii) Noncareer appointee includes an SES noncareer or limited 
appointee, an appointee in a position filled by Schedule C, or an 
appointee in an Executive Schedule or equivalent position that is not 
required to be filled competitively.
    (2) These restrictions do not apply to the involuntary reassignment 
of a career appointee under 5 U.S.C. 4314(b)(3) based on a final 
performance rating of ``Unsatisfactory'' that was issued before the 
appointment of a new agency head or a new noncareer supervisor as 
defined in paragraph (c)(1) of this section. If a moratorium is already 
underway at the time the final rating is issued, then that moratorium 
must be completed before the reassignment action can be effected.

PART 335--PROMOTION AND INTERNAL PLACEMENT

    2. The authority citation for part 335 continues to read as 
follows:

    Authority: 5 U.S.C. 3301, 3302, 3330, and E.O. 10577 (3 CFR 
1957-58 Comp., p. 218).

    3. In Sec. 335.103(c)(3) the text is republished for the 
convenience of the reader, a new paragraph (c)(3)(vii) is added to read 
as follows.


Sec. 335.103  Agency Promotion Programs.

* * * * *
    (c) * * *
    (3) Discretionary actions. Agencies may at their discretion except 
the following actions from competitive procedures of this section:
* * * * *
    (vii) Appointments of career SES appointees with competitive 
service reinstatement eligibility to any position for which they 
qualify in the competitive service at any grade or salary level, 
including Senior-Level positions established under 5 CFR Part 319--
Employment in Senior-Level and Scientific and Professional positions.

[FR Doc. 98-16825 Filed 6-23-98; 8:45 am]
BILLING CODE 6325-01-P