[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Rules and Regulations]
[Pages 59875-59876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29768]



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 Rules and Regulations
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  Federal Register / Vol. 63, No. 215 / Friday, November 6, 1998 / 
Rules and Regulations  

[[Page 59875]]


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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: Final regulations.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations that adopt without change interim regulations that 
corrected previous regulations which were inconsistent with statutory 
provisions that govern 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. These regulations also authorize agencies to 
reinstate SES career appointees who have competitive service 
reinstatement eligibility to career appointments in competitive service 
positions for which they qualify, including Senior Level (SL) 
positions.

EFFECTIVE DATE: December 7, 1998.

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

SUPPLEMENTARY INFORMATION:

120-Day Moratorium on Involuntary Reassignments

    On June 24, 1998, the Office of Personnel Management (OPM) 
published interim regulations (63 FR 34257) to correct existing 
regulations that were inconsistent with statutory provisions governing 
the 120-day moratorium on involuntary reassignments of Senior Executive 
Service (SES) career appointees. 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., the 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

    The interim regulations published on June 24, 1998, also expanded 
the eligibility of SES career appointees for reinstatement to Senior 
Level (SL) positions. SL positions established under 5 CFR Part 319 are 
in the competitive service and are covered by OPM regulations governing 
the competitive service generally. Formerly, under 5 CFR 
335.103(c)(1)(vi), agencies were required to follow competitive 
procedures in agency merit promotion plans in order to reinstate a 
person to a permanent or a 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 meant that career SES members 
could 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 recognized that fact by 
permitting reinstatement of career SES appointees to competitive 
service positions above the GS-15 level.
    The 30-day comment period expired on August 24, 1998. OPM did not 
receive any comments during the comment period. Therefore, the interim 
rule is being adopted as a final rule.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant impact 
on a substantial number of small entities because they will apply 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, under the authority in 5 U.S.C. 3392, 3393, 3393a, 
3395, 3397, 3593, and 3595, the interim regulations

[[Page 59876]]

amending 5 CFR Parts 317 and 335 (63 FR 34257) published on June 24, 
1998, are adopted as final without any changes.

[FR Doc. 98-29768 Filed 11-5-98; 8:45 am]
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