[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Rules and Regulations]
[Pages 6427-6429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1487]



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  Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules 
and Regulations  

[[Page 6427]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 330

RIN 3206-AI28


Federal Employment Priority Consideration Program for Displaced 
Employees of the District of Columbia Department of Corrections

AGENCY: U.S. 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 implement provisions of law affecting the priority 
consideration program for certain displaced employees of the District 
of Columbia Department of Corrections seeking Federal positions. These 
regulations also incorporate comments and suggestions received on the 
interim regulations OPM published on August 4, 1998.

DATES: This interim regulation is effective on January 22, 2001. 
Written comments will be considered if received no later than March 23, 
2001.

ADDRESSES: Send or deliver written comments to: Carol J. Okin, 
Associate Director for Employment, Office of Personnel Management; 
Suite 6500, 1900 E Street NW., Washington, DC 20415-9000.

FOR FURTHER INFORMATION CONTACT: Jacqueline Yeatman on (202) 606-0960, 
FAX (202) 606-2329, TDD (202) 606-0023 or by email at [email protected].

SUPPLEMENTARY INFORMATION:

Initial Public Law and Regulations

    The National Capital Revitalization and Self-Government Improvement 
Act (part of the Balanced Budget Act of 1997, sec. 11201, Pub. L. 105-
33, 111 Stat. 738, enacted August 5, 1997) mandated that the Lorton 
Correctional Complex be closed by December 31, 2001. Section 11203 of 
this law gave priority consideration to employees of the District of 
Columbia (DC) Department of Corrections (DOC) displaced by this 
closure. The law established two priority consideration programs--one 
for vacant Bureau of Prisons law enforcement positions (for employees 
meeting the qualification and suitability requirements for those 
positions), and another for most other Federal vacancies. The 
Department of Justice maintains the priority consideration program for 
displaced Department of Corrections employees interested in Federal 
Bureau of Prisons law enforcement positions.
    On August 4, 1998, OPM issued interim regulations with request for 
comment to implement the Priority Consideration Program covering most 
vacancies in Federal agencies. Under the interim regulations, present 
and former DC DOC employees receiving a reduction in force (RIF) 
separation notice from the DC Government issued after August 7, 1997, 
were eligible for priority consideration when applying for certain 
vacant competitive service positions in Federal Executive Branch 
agencies (unless they had been appointed to a law enforcement position 
in the Department of Justice Bureau of Prisons). In order to receive 
this priority, the DC DOC employee had to apply and be found well-
qualified. This priority consideration was similar to the program for 
Federal employees described in 5 CFR part 330, subpart G--Interagency 
Career Transition Assistance Plan (ICTAP) for Displaced Employees. The 
law provided that this program would expire one year after closure of 
the Lorton correctional complex.

Second Public Law

    After we published the interim regulations, President Clinton 
signed the District of Columbia Courts and Justice Technical 
Corrections Act of 1998 (Pub. L. 105-274) on October 21, 1998. This law 
contained several major changes affecting the Priority Consideration 
Program covering most Federal vacancies. One significant change was 
elimination of the requirement that DC Corrections employees be ``well-
qualified'' to get priority. The other major change in the law was the 
establishment of a competitive service appointing authority for DC DOC 
appointees hired through this program.
    As a result of this second statute, agencies must: (1) Make all new 
appointments under this program into the competitive service; and (2) 
retroactively convert/correct appointments of those already hired into 
competitive service appointments. Because of these significant 
statutory changes, we have modified these regulations and are reissuing 
them in interim form with request for comments. This will allow for 
timely implementation while giving users the opportunity to submit any 
concerns or questions they may have about the revised regulations.

Comments Received on Initial Regulations Issued

    After OPM published the initial regulations in August, 1998, we 
received comments from three Federal agencies. Two agencies noted the 
issue of the order of selection as it applies to this program. The 
interim regulations stated, in Sec. 330.1103(d), that the priority and 
order of selection for this program are similar to ICTAP (the order of 
selection and exceptions to ICTAP appear in Sec. 330.705). The 
commenting agencies believed the exceptions to this program, and the 
relationship to ICTAP priority, needed clarification. We have therefore 
attempted to clarify this issue in Sec. 330.1103 of these regulations. 
In addition, the current ICTAP regulations, issued on July 27, 1999, 
include a cross-reference in Sec. 330.705 that specifically mentions 
the DC DOC program.
    Two agencies asked about the relationship between meeting the 
requirements for a Federal Bureau of Prisons (BOP) law enforcement 
position and this program. These agencies would prefer that OPM 
restrict DC DOC employees to priority under only one program at a time. 
However, the second public law includes a specific provision making DC 
DOC employees not yet ``appointed to a Federal Bureau of Prisons law 
enforcement position'' eligible for this program. A DC DOC employee 
would meet this definition up until actual appointment to a BOP law 
enforcement position. Therefore, we have revised Sec. 330.1101 
accordingly, and eliminated paragraph (b) of Sec. 330.1103.

[[Page 6428]]

    Another agency asked whether an employee receiving a time-limited 
appointment to a BOP law enforcement position would lose the right to 
priority under this program. We believe that Congress intended to 
assist displaced DC DOC employees in securing permanent employment, 
either in a BOP law enforcement position or in another Federal 
position. Therefore, we are modifying Sec. 330.1101 to make a DC DOC 
employee eligible for selection priority under this program until 
appointed to a permanent BOP law enforcement position. This means that 
a former DC DOC employee could accept a time-limited law enforcement 
position with the Bureau of Prisons, while still exercising the right 
to selection priority under these regulations for other Federal 
employment.
    One agency objected to the fact that employees under this program 
receive priority for vacancies nationwide, and potentially for more 
than one year, while priority under ICTAP is limited to a single 
commuting area and to one year. Several agencies were concerned that 
they might be required to pay employee relocation costs, even in cases 
where they lack the resources to do so. The statute for this program, 
however, is broad, and precludes us from limiting the area of 
consideration or the length of eligibility. Therefore, we have not 
changed these provisions in this regulation. However, we did find that 
some of the references to the program termination date in the initial 
regulation did not precisely match the language in the law. Therefore, 
we have modified references to the program termination date in sections 
330.1102 and 330.1106 to better reflect the statutory language. Since 
the current statute requires DC to close the Lorton Correctional 
Complex by December 31, 2001, we expect this program to expire on 
December 31, 2002, at the latest.
    Two agencies raised additional questions, including: (1) Will OPM 
impose any additional requirements for agency reports or vacancy 
announcements? (2) are competitive service vacancies lasting 120 days 
or less covered by this program? (3) are there any grade-level 
requirements? (4) are DC DOC employees required to submit a current 
performance appraisal? (5) if an employee declines a permanent offer 
under this program, will they lose their eligibility? and (6) does this 
program require a second review of applicants when they are found 
ineligible for priority?
    OPM considered imposing additional requirements for announcements 
or agency reporting for this program, but decided against it. The 
current regulations under section 330.102 require agencies to notify 
OPM of competitive service vacancies lasting 121 days or more. 
Therefore, we have added a similar definition of a ``vacancy'' to these 
regulations. As for the grade level requirements, differences in the DC 
Government employment system make it impractical to impose grade level 
and performance appraisal requirements for applicants under this 
program. We believe the requirement to be ``qualified'' will screen out 
candidates with insufficient experience. We do, however, agree with the 
commenters that we need to address what happens when a candidate 
declines a job offer; such a provision already exists under ICTAP. 
Therefore, we are adding language (mirroring the ICTAP) allowing 
agencies to terminate their future consideration of a candidate under 
this program if he/she declines, or fails to respond to, a firm offer. 
We also agree that it is important to have a second review when an 
applicant initially fails to meet the program requirements. Therefore, 
we have added this provision to these regulations.

Other Issues Addressed

    While we were developing these regulations, two agencies asked us 
to address some additional questions: (1) Are DC DOC employees entitled 
to priority under these regulations for non-law enforcement jobs in the 
Bureau of Prisons? and (2) Is the DC DOC employee required to submit 
proof of their eligibility for priority like ICTAP candidates? We 
clarified these issues by: (1) Adding language based on the original 
law to the definition of vacancy in Sec. 330.1103 to clarify which 
Bureau of Prisons positions are covered; and (2) adding language to 
Sec. 330.1104(a)(3) requiring applicants to provide proof of their 
eligibility under this subpart.
    One additional issue surfaced during the development of this 
regulation. A number of DC DOC managers and supervisors were moved into 
positions in the newly created Management Supervisory Service (MSS), 
making them, in effect, at-will employees. As a result, these employees 
would be separated by non-RIF termination procedures under the Lorton 
closure. We consulted with DC Government to find the best way to 
clarify the continuing eligibility of these employees for this priority 
consideration program, and modified section 330.1104 accordingly.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

    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 it would 
be contrary to the public interest to delay access to benefits provided 
by law. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause 
exists to waive the delay in the effective date and make this amendment 
effective in less than 30 days. The delay in the effective date is 
being waived to give effect to the benefits extended by the amended 
provisions at the earliest practicable date.

Regulatory Flexibility Act

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

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 Part 330

    Armed forces reserves, Government employees.

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

    Accordingly, OPM is amending part 330 of title 5, Code of Federal 
Regulations, as follows:

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

    1. The authority citation for part 330 is revised 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 G also issued under 5 U.S.C. 8337(h) 
and 8457(b); subpart K also issued under sec. 11203 of Pub. Law 105-
33 (111 Stat. 738) and Pub. Law 105-274 (112 Stat. 2424); subpart L 
also issued under sec. 1232 of Pub. L. 96-70, 93 Stat. 452.

    2. Section 330.1101 is revised to read as follows:


Sec. 330.1101  Purpose.

    A displaced employee of the District of Columbia (DC) Department of 
Corrections (DOC) who is separated from his/her position as a result of 
the closure of the Lorton Correctional Complex, and who has not been 
appointed to a permanent Federal Bureau of Prisons law enforcement 
position, is entitled to priority consideration for other Federal 
vacancies when he/she applies and is found qualified.

[[Page 6429]]


    3. Section 330.1102 is revised to read as follows:


Sec. 330.1102  Duration.

    This program terminates 1 year after the closing of the Lorton 
Correctional Complex.

    4. Paragraph (b) of Sec. 330.1103 is removed and paragraphs (c), 
(d) and (e) are redesignated as paragraphs (b), (c) and (d) and revised 
to read as follows:


Sec. 330.1103  Definitions.

* * * * *
    (b) Vacancy means any competitive service position, including non-
law enforcement positions in the Federal Bureau of Prisons, to be 
filled for a total of 121 days or more, including all extensions, 
regardless of whether the agency issues a specific vacancy 
announcement. This program does not apply to law enforcement positions 
covered by the Federal Bureau of Prisons Priority Consideration 
Program.
    (c) Priority consideration means that a displaced DC DOC employee 
eligible under this subpart who applies for a vacancy and is determined 
to be qualified, is accorded similar priority and order of selection as 
an eligible current or former displaced Federal employee under 5 CFR 
part 330, subpart G--Interagency Career Transition Assistance for 
Displaced Employees. Actions which are exempt from the requirements of 
5 CFR part 330 subpart G will also be exempt from the requirements of 
this subpart. Agencies must follow the order of selection in 
Sec. 330.705(a) in filling vacancies in the Federal Government with 
candidates from outside their own workforce. DC DOC employees are 
eligible for this priority consideration without regard to any 
geographical restrictions.
    (d) Qualified means an eligible employee who:
    (1) Possesses the knowledge, skills, and abilities which meet the 
basic qualification standards and eligibility requirements for the 
position, including any medical qualifications, suitability, 
citizenship, minimum educational and experience requirements, and any 
applicable selective factors;
    (2) Is physically qualified, with reasonable accommodation where 
appropriate, to perform the essential duties of the position;
    (3) Meets any special qualifying condition(s) that OPM has approved 
for the position; and
    (4) Is able to satisfactorily perform the duties of the position 
upon entry.

    5. In Sec. 330.1104, paragraphs (a)(1), (a)(2), (a)(3), (a)(4), 
(b), (c)(2), (c)(4) and (c)(5) are revised, and a new paragraph (c)(6) 
is added to read as follows:


Sec. 330.1104  Eligibility.

    (a)* * *
    (1) Be in receipt of a RIF separation notice, or a similar notice 
of non-disciplinary termination from the Management Supervisory 
Service, issued by the DC Department of Corrections in connection with 
the closure of the Lorton Correctional Complex.
    (2) Have not been appointed to a permanent Federal Bureau of 
Prisons law enforcement position;
    (3) Apply for a vacancy within the time frames established by the 
agency, and include proof of eligibility;
    (4) Be found qualified for the specific vacancy.
    (b) Eligibility for priority consideration begins: on the date the 
DC DOC employee receives or is issued a specific RIF separation notice, 
or a similar notice of non-disciplinary termination from the Management 
Supervisory Service (MSS), issued by the DC DOC due to the closure of 
the Lorton Correctional Complex.
    (c) * * *
    (2) When the DC DOC employee is no longer being separated by RIF, 
or by similar non-disciplinary termination from the Management 
Supervisory Service, due to the closure of the Lorton Correctional 
Complex;


* * *

    (4) When the DC DOC employee voluntarily separates by resignation 
or retirement prior to the RIF effective date or the non-disciplinary 
MSS termination date;
    (5) When the DC DOC employee is separated by a non-RIF involuntary 
separation or disciplinary or other MSS termination not related to the 
closure of the Lorton correctional complex; or
    (6) Eligibility within a specific agency may terminate if the 
employee:
    (i) Declines a permanent appointment offered by the agency (whether 
competitive or excepted) when the employee applied and was found 
qualified; or
    (ii) Fails to respond within a reasonable period of time to an 
offer or official inquiry of availability from the agency.

    6. Section 330.1105 is revised to read as follows:


Sec. 330.1105  Selection.

    (a) If two or more individuals eligible for priority under subpart 
G of this part (the Interagency Career Transition Assistance Plan), 
under subpart K of this part (Federal Employment Priority Consideration 
for Displaced Employees of the District of Columbia Department of 
Corrections), and/or under subpart L of this part (Interagency Career 
Transition Assistance for Displaced Former Panama Canal Zone Employees) 
apply for a vacancy and are eligible for priority, the agency has the 
discretion to select any of the individuals.
    (b) Agencies will conduct a documented, independent second review 
whenever an otherwise eligible employee fails to meet the ``qualified'' 
requirement. The applicant must be advised in writing of the results of 
the second review.

    7. The heading and paragraphs (a) and (b) of Sec. 330.1106 are 
revised to read as follows:


Sec. 330.1106  Appointment.

    (a)(1) Selectees under this subpart receive noncompetitive 
appointments to the competitive service under the authority of Public 
Law 105-274, enacted October 21, 1998.
    (2) Agencies must retroactively and noncompetitively convert or 
correct any excepted appointments made under section 11203(b) of Public 
Law 105-33 to competitive service appointments under Public Law 105-
274. For employees appointed before October 21, 1998, the conversion 
will be effective on October 21, 1998. For employees appointed on or 
after October 21, 1998, agencies must correct the record to reflect 
competitive service appointment as of the original appointment date.
    (b) Eligibility for appointment under this subpart expires 1 year 
after the closing of the Lorton Correctional Complex.

[FR Doc. 01-1487 Filed 1-19-01; 8:45 am]
BILLING CODE 6325-01-U