[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Proposed Rules]
[Pages 29348-29352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09444]


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 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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.
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  Federal Register / Vol. 85, No. 95 / Friday, May 15, 2020 / Proposed 
Rules  

[[Page 29348]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 315 and 335

RIN 3206-AN28


Appointment of Current and Former Land Management Employees

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations to implement recent statutory changes allowing certain 
employees and former employees of a land management agency to compete 
for a permanent position at such agency when the agency is accepting 
applications from individuals within the agency's workforce under 
promotion and internal placement (i.e., merit promotion) procedures, or 
at any hiring agency when the agency is accepting applications from 
individuals outside its own workforce under merit promotion procedures. 
These changes arose from enactment of the Land Management Workforce 
Flexibility Act (``the Act''), as amended by the National Defense 
Authorization Act for Fiscal Year 2017, and are codified at section 
9602 of title 5. The intended effect of this rule is to facilitate the 
entrance of current and former land management employees into permanent 
Federal jobs.

DATES: Comments must be received on or before July 14, 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.
    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 T. Glynn, (202) 606-1571, by 
TDD: 1-800-877-8339, or email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Federal agencies are authorized to make temporary appointments to 
fill positions that do not require an employee's services on a 
permanent basis, specifically positions to perform work which is not 
expected to last more than one year. Temporary employees are ineligible 
to compete for vacant positions advertised under promotion and internal 
placement (i.e., merit promotion) procedures because, by definition, 
temporary employees are not career or career-conditional employees (see 
5 CFR 315.201). Generally, positions filled under merit promotion 
procedures are open to current or former career or career-conditional 
employees and certain veterans eligible under the Veterans Employment 
Opportunities Act of 1998, as amended (see 5 CFR part 335). Because 
many agencies fill non-entry level jobs using merit promotion 
procedures qualified temporary employees may never be considered for 
these jobs. To remedy this circumstance Congress enacted the Land 
Management Workforce Flexibility Act (``the Act'') to provide a pathway 
for certain temporary employees in Federal land management agencies to 
compete for vacant permanent positions under merit promotion 
procedures.

Land Management Workforce Flexibility Act, as Amended

    On August 7, 2015, the President signed the Land Management 
Workforce Flexibility Act, which was subsequently codified at 5 U.S.C. 
9601 and 9602. On December 23, 2016, the President signed the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (``the 
Act''). Section 1135 of the Act amended section 9602 of title 5, United 
States Code. Collectively, these provisions established how a current 
or former employee of a ``land management agency,'' as defined by the 
Act, serving under a time-limited appointment, may compete for a 
permanent position in the competitive service--either at such an 
agency, when the agency is accepting applications from individuals 
within the agency's workforce under its merit promotion procedures, or 
at any agency, when the hiring agency is accepting applications from 
individuals outside its own workforce under the merit promotion 
procedures of the hiring agency. 5 U.S.C. 9602(a) and (d). In 
accordance with 5 U.S.C. 9602(e), which confers upon OPM authority to 
prescribe such regulations as may be necessary to carry out the Act, 
OPM is proposing that, for these purposes, ``agency'' can refer to 
either the highest organizational level (i.e., a Department as defined 
in 5 U.S.C. 105) or a component or major subdivision of a Department 
(e.g., the National Park Service within the U.S. Department of the 
Interior). Eligible individuals (referred to in this notice of proposed 
rule-making as ``land management eligibles'') must have served at an 
acceptable level of performance throughout the period(s) of time-
limited appointment(s), have served under one or more time-limited 
appointments at a land management agency for a period or periods 
totaling more than 24 months without a break of two or more years, and 
the employee was appointed initially under open, competitive 
examination to the time-limited appointment. Id. A former employee of a 
land management agency who served under a time-limited appointment and 
who otherwise meets the requirements addressed in the statute, is also 
deemed to be a land management eligible, for purposes of the statute, 
if he or she applies for a position covered by these provisions within 
the period of two years after the individual's most recent separation 
and such employee's most recent separation was for reasons other than 
misconduct or performance. Id. The Act also waives any age

[[Page 29349]]

requirements, unless the requirement is essential to the performance of 
the duties of the position. Id. at 9602(b).
    Under the Act, a land management eligible may apply for a permanent 
position, at his or her current agency (or, in the case of a land 
management eligible who is a former employee, at the last land-
management agency for which the employee worked, provided the employee 
is otherwise eligible and applies within a 2-year period following 
separation from that agency) when the hiring agency is accepting 
applications from individuals within the agency's workforce under merit 
promotion procedures. A land management eligible may also apply for a 
permanent position at any agency (the agencies are not limited to land 
management agencies) when the hiring agency is accepting applications 
from individuals outside its workforce under the merit promotion 
procedures of the applicable agency. Id. at 9602(a). Lastly, the Act 
provides that individuals appointed under these provisions acquire 
competitive status upon appointment and become career-conditional 
employees, unless the individual has otherwise completed the service 
requirements for career tenure. Id. at 9602(c).
    As noted above, the Act allows current and former employees of a 
land management agency who meet the definition of a land management 
eligible (and are otherwise qualified) to apply and compete for 
permanent positions in the competitive service when the hiring agency 
is accepting applications from outside its own workforce under merit 
promotion procedures. Thus, agencies will be expected to consider land 
management eligibles under such merit promotion procedures in 
accordance with 5 CFR part 335 (and may subsequently appoint such an 
individual, if selected). The Act also allows a current or former 
employee of a land management agency, who meets the definition of a 
land management eligible (and is otherwise qualified), to apply and 
compete for a permanent position at such agency when the agency is 
accepting applications from individuals within the agency's own 
workforce under merit promotion procedures. In that case, the employing 
(or formerly employing) land management agency also will be expected to 
consider land management eligibles under such merit promotion 
procedures in accordance with part 335. When considering applicants 
under the Act, agencies must adhere to their merit promotion procedures 
and any applicable and enforceable collective bargaining agreement(s) 
into which the agency may have entered. This means land management 
eligibles must be rated and ranked with other merit promotion 
candidates under the same assessment criteria as the other applicants. 
The appointing official may select any candidate from among the best 
qualified group of applicants, consistent with the procedures in 5 CFR 
part 335, and part 330 for displaced employees.
    To implement the newly created section of title 5 U.S.C. 9602, OPM 
is proposing to add a new Sec.  315.613 to subpart F of part 315, title 
5, Code of Federal Regulations, and revise part 335, Promotion and 
Internal Placement. Below is section-by-section description of the 
proposed provisions.
    OPM is proposing to add a new Sec.  315.613, as follows:

Description of the Flexibility

    Paragraph (a) of proposed new Sec.  315.613 explains the conditions 
under which an agency may use this authority to allow a current or 
former land management eligible initially hired at a land management 
agency under a time-limited appointment in the competitive service to 
compete for a permanent position at the land management agency when it 
is accepting applications from individuals within the agency's 
workforce under its merit promotion procedures, or at any agency when 
the hiring agency is accepting applications from individuals from 
outside its own workforce under merit promotion procedures. As a result 
of 5 U.S.C. 9602, an agency must consider a land management eligible, 
as defined by these regulations, who applies for a permanent position 
pursuant to the provisions of the Act and these regulations.

Definitions

    Paragraph (b) of proposed Sec.  315.613 contains four definitions 
necessary for the administration of this section. OPM is proposing that 
``agency'' has a meaning consistent with 5 U.S.C. 105, or means a major 
subdivision or component of an entity defined in 5 U.S.C. 105 (e.g., 
the National Park Service within the U.S. Department of the Interior).
    For the convenience of the reader, OPM is proposing to include the 
definition of ``land management agency'' as it is defined in the Act. 
For these purposes, a ``land management agency'' means the:
     Forest Service of the U.S. Department of Agriculture;
     Bureau of Land Management of the U.S. Department of the 
Interior;
     National Park Service of the U.S. Department of the 
Interior;
     Fish and Wildlife Service of the U.S. Department of the 
Interior;
     Bureau of Indian Affairs of the U.S. Department of the 
Interior; and
     Bureau of Reclamation of the U.S. Department of the 
Interior.
    OPM is using the term ``land management eligible'' to refer to a 
Federal employee who would be in a position to take advantage of the 
opportunity the Act affords certain current or former employees. OPM is 
defining ``land management eligible'' to mean an individual who is 
serving or has served in a land management agency and who meets the 
following conditions:
    For current land management employees (i.e., individuals currently 
employed in a land management agency) the individual:
     must have been initially hired under a time-limited 
appointment in the competitive service at the land management agency;
     must have served under 1 or more time-limited appointments 
at a land management agency for a period or periods totaling more than 
24 months without a break in service of 2 or more years; and
     must have performed at an acceptable level during each 
period of service.
    For former land management employees (i.e., individuals formerly 
employed in a land management agency) the individual:
     must have been initially hired under a time-limited 
appointment in the competitive service at the land management agency;
     must have served under 1 or more time-limited appointments 
by a land management agency for a total period of more than 24 months 
without a break in service of 2 or more years;
     must have performed at an acceptable level throughout the 
service period(s);
     must apply for a position covered by these provisions 
within 2 years from the end of the most recent date of separation; and
     must have been separated, with respect to the most recent 
separation, for reasons other than misconduct or performance.
    A former land management employee's eligibility for appointment 
derives from the fact that the employee previously worked in a land 
management agency. For purposes of this regulation, a former employee 
who meets the above requirements is treated as if the individual is a 
current employee of the land management agency from which he or she was 
most recently separated.

[[Page 29350]]

    OPM is proposing to define ``time-limited appointment'' as a 
temporary or term appointment as defined in 5 CFR part 316.
    The following graphics summarize who is eligible to apply, to which 
agencies, and under which conditions (assuming the individual is 
otherwise eligible):

------------------------------------------------------------------------
                                    Current agency    Any Federal agency
------------------------------------------------------------------------
Current land management employee  When the agency is  When the agency is
                                   accepting           accepting
                                   applications from   applications from
                                   individuals from    individuals
                                   within its own      outside its own
                                   workforce under     workforce under
                                   merit promotion     merit promotion
                                   procedures.         procedures.
------------------------------------------------------------------------


------------------------------------------------------------------------
                                      Agency last
                                    separated from    Any Federal agency
------------------------------------------------------------------------
Former land management employee.  When the agency is  When the agency is
                                   accepting           accepting
                                   applications from   applications from
                                   individuals from    individuals
                                   within its own      outside its own
                                   workforce under     workforce under
                                   merit promotion     merit promotion
                                   procedures.         procedures.
------------------------------------------------------------------------

Conditions

    Paragraph (c) of proposed Sec.  315.613 specifies, in accordance 
with the Act, that, for the purposes of this Act, a hiring agency must 
waive requirements as to age, in determining an applicant's 
eligibility, unless the hiring agency can prove that the requirement is 
essential to the performance of the duties of the position being 
filled.

Acquisition of Competitive Status

    For the convenience of the reader, paragraph (d) of new Sec.  
315.613 repeats language from the Act which explains that these 
employees acquire competitive status immediately upon appointment.

Tenure on Appointment

    For the convenience of the reader, paragraph (e) of new Sec.  
315.613 repeats language from the Act which specifies that an employee 
appointed under these provisions becomes a career-conditional employee 
unless the individual has already completed the service requirements 
for career tenure in accordance with 5 CFR part 315.201.
    OPM is proposing to add a new Sec.  335.107 as follows:

Agency Authority

    Paragraph (a) of proposed Sec.  335.107 explains the purpose of the 
Act, which is to allow a land management eligible at a land management 
agency to apply and compete for a permanent position at any agency, 
when the hiring agency is accepting applications from individuals from 
outside its own workforce under merit promotion procedures, or at the 
eligible's land management agency, when such agency is accepting 
applications from individuals within the agency's workforce under its 
own merit promotion procedures.

Definitions

    Paragraph (b) of proposed Sec.  335.107 contains one definition for 
the administration of this section. OPM is proposing that ``land 
management eligible'' have the same meaning as the definition contained 
in proposed Sec.  315.613(b)(3).
Regulatory Impact Analysis
    OPM has examined the impact of this rulemaking as required by 
Executive Order 12866 and Executive Order 13563, which directs 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). 
A regulatory impact analysis must be prepared for major rules with 
economically significant effects of $100 million or more in any one 
year. While this rulemaking does not reach the economic effect of $100 
million or more under Executive Order 12866, this rulemaking is still 
designated as a ``significant regulatory action,'' under Executive 
Order 12866 and has been reviewed by OMB.
Reducing Regulation and Controlling Regulatory Costs
    This rule is not an E.O. 13771 regulatory action because this 
rulemaking is related to agency organization, management, or personnel.
Regulatory Flexibility Act
    The Office of Personnel Management certifies that this rulemaking 
will not have a significant economic impact on a substantial number of 
small entities because it applies only to Federal agencies and 
employees.
Federalism
    The Office of Personnel Management has examined this rulemaking in 
accordance with Executive Order 13132, Federalism, and have determined 
that this rulemaking will not have any negative impact on the rights, 
roles and responsibilities of State, local, or tribal governments.
Civil Justice Reform
    This regulation meets the applicable standard set forth in 
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
    This rulemaking 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 
``rulemaking'' 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 rulemaking does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR 315 and 335

    Government employees.

    Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, OPM is proposing to amend parts 315 and 335 of title 
5, Code of Federal Regulations, as follows:

[[Page 29351]]

PART 315--CAREER AND CAREER CONDITIONAL EMPLOYMENT

0
1. The authority citation for part 315 is revised to read as follows:

    Authority:  5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR, 
1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162. 
Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. 
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 
315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued 
under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606 also issued 
under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 315.607 also 
issued under 22 U.S.C. 2560. Sec. 315.608 also issued under E.O. 
12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5 
U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 3304(f). 
Sec. 315.612 also under E.O. 13473. Sec 315.613 also issued under 
Pub. L. 114-47, sec. 2(a) (Aug. 7, 2015), amended by Pub.L. 114-328, 
sec. 1135 (Dec. 23, 2016), as codified at 5 U.S.C. 9602. Sec. 
315.708 also issued under E.O. 13318, 3 CFR, 2004 Comp. p. 265. Sec. 
315.710 also issued under E.O. 12596, 3 CFR, 1978 Comp. p. 264.

Subpart F--Career or Career Conditional Appointment Under Special 
Authorities

0
2. Add Sec.  315.613 to subpart F to read as follows:


Sec.  315.613   Appointment of current and former land management 
eligibles serving under time-limited appointments.

    (a) Appointment of land management eligibles. (1) Any agency--
    (i) May appoint a land management eligible who is a current 
employee of a land management agency to a permanent position provided 
the land management eligible was selected from among the best qualified 
following competition under a merit promotion announcement open to 
candidates outside of the hiring agency's workforce: and
    (ii) May appoint a land management eligible who is a former 
employee of a land management agency to a permanent position provided
    (A) The land management eligible applied for that position within 
the 2-year period following the most recent date of separation from a 
land management agency; and
    (B) Was selected from among the best qualified following 
competition under a merit promotion announcement open to candidates 
outside of the hiring agency's workforce.
    (2) In addition, a land management agency--
    (i) May appoint a land management eligible who is a current 
employee of that agency to a permanent position provided the land 
management eligible was selected from among the best qualified 
following competition under a merit promotion announcement open to 
candidates within that agency's workforce; and
    (ii) May appoint a land management eligible who is a former 
employee of that land management agency to a permanent position 
provided--
    (A) The land management eligible applied for that position within 
the 2-year period following the most recent date of separation from a 
land management agency;
    (B) The land management agency from which the land management 
eligible most recently separated is the same land management agency as 
the one making the appointment; and
    (C) The land management eligible was selected from among the best 
qualified following competition under a merit promotion announcement 
open to candidates within that agency's workforce.
    (b) Definitions--(1) Agency has the meaning given in 5 U.S.C. 105, 
and may also mean a major subdivision or component of an entity defined 
in 5 U.S.C. 105.
    (2) Land management agency means any of the following:
    (i) The Forest Service of the U.S. Department of Agriculture;
    (ii) The Bureau of Land Management of the U.S. Department of the 
Interior;
    (iii) The National Park Service of the U.S. Department of the 
Interior;
    (iv) The Fish and Wildlife Service of the U.S. Department of the 
Interior;
    (v) The Bureau of Indian Affairs of the U.S. Department of the 
Interior; and
    (vi) The Bureau of Reclamation of the U.S. Department of the 
Interior.
    (3) Land management eligible means either:
    (i) An individual currently serving in a land management agency 
who:
    (A) Was initially hired under a time-limited appointment in the 
competitive service in accordance with part 316;
    (B) Has served under 1 or more time-limited appointments by a land 
management agency for a period or periods totaling more than 24 months 
without a break in service of 2 or more years; and
    (C) Must have performed at an acceptable level during each period 
of service; or
    (ii) An individual who previously served in a land management 
agency who:
    (A) Was initially hired under a time-limited appointment in the 
competitive service in accordance with part 316;
    (B) Served under 1 or more time-limited appointments by a land 
management agency for a total period of more than 24 months without a 
break in service of 2 or more years;
    (C) Performed at an acceptable level throughout the service 
period(s);
    (D) Applied for a position covered by these provisions within 2 
years after the individual's most recent date of separation from a land 
management agency; and
    (E) Was separated, with respect to the individual's most recent 
separation, for reasons other than misconduct or performance. For these 
purposes, an individual under this paragraph is deemed an employee of 
the land management agency from which the individual was most recently 
separated.
    (4) Time-limited appointment means a temporary or term appointment, 
in accordance with 5 CFR part 316.
    (c) Conditions. An agency considering a land management eligible 
must waive any age requirement unless it can prove that the requirement 
is essential to the performance of the duties of the position.
    (d) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section acquires competitive status automatically 
upon appointment.
    (e) Tenure on appointment. An appointment under paragraph (a) of 
this section is career-conditional unless the appointee has already 
satisfied the requirements for career tenure or is exempted from the 
service requirement pursuant to Sec.  315.201.

PART 335--PROMOTION AND INTERNAL PLACEMENT

0
3. The authority citation for part 335 is revised to read as follows:

    Authority:  5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; 5 U.S.C. 3304(f); Pub. L. 106-117; Pub. L. 114-
47, 2(a) (Aug. 7, 2015), as amended by Pub. L. 114-328, 1135 (Dec. 
23, 2016), codified at 5 U.S.C. 9602.

Subpart A--General Provisions

0
4. Add Sec.  335.107 to subpart A to read as follows:


Sec.  335.107   Special selection procedures for certain land 
management eligibles under merit promotion.

    A current or former land management employee of a land management 
agency, who constitutes a land management eligible, as defined in Sec.  
315.613(b)(3), may, if otherwise qualified):
    (a) Compete for a permanent position at any agency (including, but 
not limited to, a land management agency) when that agency is accepting 
applications from individuals outside its own workforce under merit 
promotion procedures in the competitive service; or
    (b) At the land management agency with which it was most recently 
an

[[Page 29352]]

employee, in accordance with the provisions of Sec.  315.613, when the 
agency is accepting applications from individuals within the agency's 
workforce under its merit promotion procedures. A land management 
eligible so selected will be given a career or career-conditional 
appointment under Sec.  315.613.

[FR Doc. 2020-09444 Filed 5-14-20; 8:45 am]
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