[Federal Register Volume 84, Number 247 (Thursday, December 26, 2019)]
[Proposed Rules]
[Pages 70906-70908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27715]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 / 
Proposed Rules  

[[Page 70906]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 335

RIN 3206-AN77


Promotion and Internal Placement

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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

SUMMARY: The Office of Personnel Management (OPM) is proposing 
regulations to give agencies the discretion to reinstate certain former 
Federal employees without competition to positions at any grade level 
for which the individual is qualified. Agencies will have greater 
flexibility in recruiting back to Government service former Federal 
employees who have developed enhanced or higher-level skill-sets than 
they had when they left government. Individuals seeking to rejoin the 
Federal workforce may do so more easily and at grade levels 
commensurate with the skills and experience they actually possess (and 
be compensated at such grade levels).

DATES: Comments must be received on or before February 24, 2020.

ADDRESSES: You may submit comments, identified by the docket number or 
Regulation Identifier Number (RIN) for this proposed rulemaking, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for sending comments.
     Email: [email protected]. Include the docket number or RIN in 
the subject line of the message.
    Instructions: All submissions must include the agency name and 
docket number or RIN for this rulemaking. Please arrange and identify 
your comments on the regulatory text by subpart and section number; if 
your comments relate to the supplementary information, please refer to 
the heading and page number. All comments received will be posted 
without change, including any personal information provided. Please 
ensure your comments are submitted within the specified open comment 
period. Comments received after the close of the comment period will be 
marked ``late,'' and OPM is not required to consider them in 
formulating a final decision. Before acting on this proposal, OPM will 
consider all comments we receive on or before the closing date for 
comments. Changes to this proposal may be made in light of the comments 
we receive.

FOR FURTHER INFORMATION CONTACT: Michelle Glynn, Telephone: 202-606-
1571, Fax: 202-606-2329, TDD: 202-418-3134, or email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Summary of the Proposed Changes

    The U.S. Office of Personnel Management (OPM) is exercising its 
authority under 5 U.S.C. 3301 and 3302 in proposing to revise part 335, 
title 5, Code of Federal Regulations (CFR), to change the criteria for 
how an agency may reinstate certain former Federal employees to a 
position in the competitive service. Under current rules, an agency may 
reinstate an individual, without competition, only to a position at a 
grade level that is no higher than the grade level of a position the 
individual held on a permanent basis in the competitive service. 
Reinstatement to a higher-graded position, or to a position with 
greater promotion potential, requires competition under 5 CFR part 335 
Promotion and Internal Placement.
    Oftentimes, when an individual leaves Federal service, he or she 
acquires skills and/or experience that may qualify the individual for a 
position at a higher grade level than the one the individual held prior 
to leaving government. The proposed rules place these reinstatement 
actions under discretionary actions at 5 CFR 335.103(c)(3). The 
proposed rules allow an agency to reinstate a former career or career-
conditional employee without competition, and regardless of the 
promotion potential, to a position at a grade level higher than that 
previously held by that individual to provide greater flexibility to 
agencies when they need to reinstate a former Federal employee. The 
proposed changes will benefit both agencies as well as individuals 
seeking to reenter the Federal workforce as the proposed rules seeks to 
encourage individuals who have gained additional skills and experiences 
to reenter the Federal workforce at grade levels equal to the grade 
levels they actually qualify for, not for grade levels they previously 
qualified for. Any restriction on the promotion potential of the 
position may be a disincentive to attracting needed talent with the 
desired skills and/or experience. In order to qualify for this type of 
reinstatement the individual must meet the following criteria:
    (1) Been voluntarily separated from his or her most recent career 
or career-conditional appointment for at least 1 year, and
    (2) Received a rating of record for his or her most recent career 
or career-conditional position of at least Fully Successful (or 
equivalent).
    OPM is proposing that individuals who voluntarily separate must 
wait 1 year to be eligible for a higher-graded position under this 
authority in order to provide consistency with the general 
qualification requirements for advancement to a higher grade. OPM's 
government-wide qualification standards require that competitive 
service employees have 1 year of specialized experience before being 
promoted to the next highest grade level. The proposed 1-year 
requirement will prevent situations in which employees seeking a 
promotion quit and get reinstated to a higher-graded position (in 
essence a promotion) prior to meeting the specialized experience 
requirement. Thus, the proposed rules benefit both Federal agencies and 
former Federal employees seeking reemployment with the government at a 
level commensurate with each individual's actual skill and/or 
experience level, while preserving a measure of fairness with respect 
to current employees.
    OPM is proposing that individuals who did not receive a rating of 
record for his or her most recent career or career-conditional position 
of at least Fully Successful (or equivalent) are not eligible for 
reinstatement without competition under this rule because if the 
individual was not performing to expectations at the time s/he left 
Federal service, that rationale for liberalizing the rules for re-entry 
would not be present, and we would want agencies to put the candidate 
through a more rigorous

[[Page 70907]]

process to accurately evaluate current capabilities before hiring the 
individual again. An individual whose most recent evaluation was less 
than Fully Successful would have been headed for potential demotion or 
termination if s/he had remained.
    For individuals who resigned and did not wait 1 year or more before 
applying for reinstatement, or for individuals who did not receive a 
rating of record for his or her most recent career or career-
conditional position of at least Fully Successful (or equivalent), the 
proposed rule will require competition for higher graded positions, or 
positions with greater promotion potential. However, the individuals 
remain eligible for reinstatement without competition for positions 
with no higher grade or with no more promotion potential than a 
position previously held by the individual on a permanent basis in the 
competitive service.
    The specific proposed changes are as follows:
    OPM is proposing to modify current Sec.  335.103(c)(1)(vi), by 
requiring competition under this part for an individual seeking 
reinstatement, within 1 calendar year from the date of his or her 
separation, to a position at a higher grade level or promotion 
potential than previously held, or for an individual who did not 
receive a rating of record of Fully Successful (or equivalent).
    New paragraph Sec.  335.103(c)(3)(viii) creates as a discretionary 
action that is not subject to competitive procedures reinstatement to a 
position at a higher grade level or promotion potential than previously 
held provided the individual resigned 1 year or more prior to the date 
he or she applies for reinstatement, and that the individual received a 
rating of record for his or her most recent career or career-
conditional position of at least Fully Successful (or equivalent).
    OPM is proposing these changes under Civil Service Rules II and 
VII, codified at 5 CFR parts 2 and 7, to establish and administer a 
system that provides for career appointments for former employees 
eligible for career appointment upon reinstatement.

Regulatory Flexibility Act

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

E.O. 13563 and E.O. 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' under Executive Order 12866 and has been reviewed by OMB.

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this 
proposed rule is expected to be related to agency organization, 
management, or personnel.

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of nonagency parties and, accordingly, is not a ``rule'' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 335

    Government employees.


Office of Personnel Management
Alexys Stanley,
 Regulatory Affairs Analyst.

    Accordingly, OPM proposed to amend 5 CFR part 335 as follows:
* * * * *

PART 335--PROMOTION AND INTERNAL PLACEMENT

0
 1. The authority citation for part 335 continues to read as follows:

    Authority:  5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577, 
E.O. 11478, 3 CFR 1966-1970, Comp., page 803, unless otherwise 
noted, E.O. 13087; and E.O. 13152, 3 CFR 19554-58 Comp., p.218; 5 
U.S.C. 3304(f), and Pub. L. 106-117.

Subpart A--General Provisions

0
 2. In Sec.  335.103, revise paragraph (c)(1)(vi) and add paragraph 
(c)(3)(viii) to read as follows:


Sec.  335.103  Agency promotion programs.

* * * * *
    (c) * * *
    (1) * * *
    (vi) Reinstatement 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 if the individual did 
not wait 1 year or more after separating from Federal employment before 
applying for reinstatement, or did not receive a rating of record for 
his or her most recent career or career-conditional position of at 
least Fully Successful (or equivalent).
* * * * *
    (viii) Reinstatement in accordance with 5 CFR part 315 to any 
position in the competitive service for which the individual is 
qualified at a higher grade level or with more promotion potential than 
a career or career-conditional position previously held by the 
individual; provided,--the individual has been voluntarily separated 
for at least 1 year before being reinstated, and the individual must 
have received a rating of record for his or her most recent career or 
career-conditional

[[Page 70908]]

position of at least Fully Successful (or equivalent).
* * * * *
[FR Doc. 2019-27715 Filed 12-23-19; 8:45 am]
BILLING CODE 6325-39-P