[Federal Register Volume 88, Number 233 (Wednesday, December 6, 2023)]
[Rules and Regulations]
[Pages 84685-84690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26723]



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 Rules and Regulations
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  Federal Register / Vol. 88, No. 233 / Wednesday, December 6, 2023 / 
Rules and Regulations  

[[Page 84685]]



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: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to allow certain current 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. The intended effect of this hiring 
authority is to provide a pathway for current and former land 
management employees currently serving (or served) under time-limited 
appointments, who have not received a permanent appointment in the 
competitive service, to compete for vacant permanent Federal positions 
in the competitive service under merit promotion procedures.

DATES: This rule is effective January 5, 2024.

FOR FURTHER INFORMATION CONTACT: Michelle T. Glynn, (202) 606-1571, by 
TDD: 1-800-877-8339, or email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Under most circumstances, individuals who are serving (or served) 
under time-limited appointments are not eligible to compete under merit 
promotion procedures for permanent positions in the competitive 
service. Generally, positions filled under merit promotion procedures 
are only open to current career or career conditional employees to 
include certain veterans who are eligible under the Veterans Employment 
Opportunities Act (VEOA) of 1998, as amended. Because time-limited 
employees are not career or career conditional employees, they may 
never be considered for permanent positions under merit promotion 
procedures. To remedy this situation, Congress enacted the Land 
Management Workforce Flexibility Act (``the Act'') under 5 U.S.C. 9601 
and 9602 to better assist certain time-limited employees in Federal 
land management agencies to compete for vacant permanent positions in 
the competitive service under merit promotion procedures.
    To implement the Act, OPM published proposed regulations in the 
Federal Register at 85 FR 29348 on May 15, 2020. Specifically, OPM 
proposed to allow certain current and former land management employees 
who are serving (or served) under time-limited appointments and have 
not received a permanent position in the Federal government to compete 
for permanent positions under merit promotion procedures in 5 CFR parts 
316 and 335. After considering the comments received, OPM is finalizing 
the proposed amendments with modifications as discussed in the next 
section. OPM is also adopting several non-substantive modifications 
from the proposed to the regulatory text to improve clarity.

Comments on the Proposed Rule

    OPM received five comments on the proposed rule: four from 
individuals and one from a Federal employee union. One individual 
commented that the rule does not address whether a land management 
eligible with competitive status is subject to time-in-grade (TIG) 
restrictions when using this authority. The commenter also asked 
whether a land management eligible who already held a permanent job 
could use his or her eligibility multiple times when applying for 
positions under promotion and internal placement (i.e., merit 
promotion) procedures. The commenter suggested that OPM state clearly 
in the regulation whether these situations are allowed.
    Agencies cannot use this authority to circumvent TIG requirements. 
TIG exists to prevent excessively rapid promotions in competitive 
service General Schedule positions and to protect competitive 
principles. In accordance with 5 CFR 300.603, TIG applies to an 
individual who served on a non-temporary appointment within the 52-week 
period prior to advancement. Based on the scenario described above, the 
permanent employee, who was formerly a time-limited employee, would be 
subject to time-in-grade if seeking a higher-graded position. In 
accordance with 5 U.S.C. 9602, eligibility under these regulations 
applies to certain individuals serving, or who served, under a time-
limited appointment and have not received a permanent position in the 
Federal government. OPM will address this and other scenarios 
pertaining to TIG requirements in supplemental guidance.
    One individual expressed concern over the hiring practices at the 
Bureau of Land Management (BLM) and dissatisfaction with the current 
BLM leadership. This individual did not have any objections to or 
suggestions on the proposed regulation. OPM will not address this 
comment because it is beyond the scope of the proposed regulations.
    Two individuals provided positive comments and expressed strong 
support for the proposed regulation. A retired National Park Ranger 
stated that he strongly supports the proposed regulation because it 
greatly benefits the National Park Service in the recruitment and 
retention of new and diverse employees. Another individual stated that 
this regulation will help temporary employees find full-time permanent 
employment and hiring managers to attract experienced workers. OPM 
appreciates this support.
    One individual suggested that OPM amends the proposed rule to allow 
employees who previously served on a temporary appointment have that 
time credited toward the probationary or trial period. OPM is not 
adopting this suggestion because it is not necessary. The governing 
statute at 5 U.S.C. 9602(c)(2) states that individuals appointed under 
this authority acquire competitive status upon appointment. Competitive 
status is acquired after completion of a probationary period in 
accordance with 5 CFR 212.301. The

[[Page 84686]]

statute deems a land management eligible who is selected to have 
completed a probationary period upon appointment under this authority. 
The proposed regulation at 5 CFR 315.613(d) states this.
    The same individual suggested that OPM modifies proposed Sec.  
335.107 to make clear that a land management eligible may compete for a 
permanent position at any agency when the position is being filled 
under merit promotion procedures. OPM is not adopting this suggestion. 
The Act at 5 U.S.C. 9602 established the conditions and criteria under 
which certain current or former land management employees may compete 
for a permanent position under merit promotion procedures. The 
suggested language is not in accordance with this statute. The language 
in the proposed rule is consistent with the governing statute and 
reflects the conditions under which a land management employee may 
compete when a job is advertised under merit promotion procedures and 
open to candidates from outside an agency's workforce or under merit 
promotion procedures and open to candidates from within an agency's 
workforce.
    A Federal employee union commented that its primary concern is to 
ensure the regulation and supplementary information reflect the 
statutory requirement that agencies must allow all land management 
eligibles to compete for vacancies filled under their merit promotion 
procedures. This Federal employee union submitted several specific 
comments that are discussed throughout the remainder of the 
Supplementary Information section of this preamble.

Federal Employee Union Comments on the Supplementary Information of the 
Proposed Rule

    The employee union stated:

    The primary thrust of the statute, as expressed in its first 
sentence, is to establish that a land management eligible ``is 
eligible to compete (emphasis added).'' [sic] It is therefore 
mandatory that agencies consider land management eligible 
applicants.
    This is not reflected in the first sentence in the supplementary 
information under ``Description of the Flexibility (p. 29349)'' 
which states, in relevant part, ``. . . an agency may use this 
authority to allow a current or former land management eligible . . 
. to compete for a permanent position. . .'' (emphasis added). The 
term ``may'' gives agencies discretion to ``allow'' or to not allow 
land management eligibles to compete. In fact, the statute is 
prescriptive in this regard, in that it states that land management 
eligibles are ``eligible to compete.'' It is not within the 
authority of an agency to remove that which Congress has bestowed. 
We recommend this be revised to state ``. . .under this authority, 
an agency must to allow [sic] a current or former land management 
eligible. . . to compete for a permanent position . . .'' (emphasis 
in original.)

    The employee union also asserted the sentence quoted above (``. . . 
an agency may use this authority to allow a current or former land 
management eligible . . . to compete for a permanent position . . .'' 
(emphasis in original)) had to be ``a simple drafting error'' because 
in the same section the supplementary information stated: ``an agency 
must consider a land management eligible (also under ``Description of 
the Flexibility, '' p. 29349).'' Nevertheless, the presence of the 
first sentence remained ``problematic as it introduces ambiguity that 
could lead to flawed implementation.''
    OPM thanks the Federal employee union for the comment. No 
modification to the regulatory text is needed as it already reflects 
that agencies have the discretion whether to fill their positions under 
promotion and internal placement (i.e., merit promotion) procedures (5 
CFR part 335) or through another hiring authority. OPM further notes 
that the difference in the sentences was not a drafting error, but 
rather reflect different points in the hiring process. OPM's use of 
``must'' in the second reference under ``Description of the 
flexibility'' modifies the phrase ``consider a land management eligible 
. . .'' It relates to when a land management eligible applies for a 
permanent position. That is, once an agency makes the determination to 
use its discretion to advertise for a permanent position under 
Promotion and Internal Placement procedures at 5 CFR 335, certain land 
management eligibles must be considered.
    The employee union further objected to the phrase--``. . . will be 
expected to consider land management eligibles . . . (under ``Land 
Management Workforce Flexibility Act, as Amended,'' [sic] p. 29349)'' 
in two places because that phrase did not create requirements and was 
not a term of art. In the alternative, the employee union again 
recommended revising the language ``to clearly articulate the statutory 
requirement that agencies must to consider [sic] land management 
eligibles.''
    OPM agrees and clarifies that agencies who use their discretion to 
hire for positions under proposed parts 315 and 335 must consider 
eligible land management applicants who apply for permanent positions.

Federal Employee Union Comments on the Regulatory Text at Sec.  335.107

    The employee union recommended revising the language at Sec.  
335.107 to make it clear that land management eligibles are entitled to 
compete for permanent positions. It asserted ``[t]he statement that 
they `may compete' is not, in our view, sufficiently prescriptive in 
this regard.''
    OPM does not believe this change is necessary because `may' and 
`are entitled' have the same meaning in this context. The law does not 
require individuals to compete, it allows them to, hence our use of 
``may.'' Further, this formulation parallels language currently in 
Sec.  335.106 pertaining to individuals eligible under the Veterans 
Employment Opportunities Act of 1998, as amended. We retained ``may 
compete'' for consistency in part 335.
    The employee union further commented that the proposed Sec.  
335.107, ``Special selection procedures for certain land management 
eligibles under merit promotion'' (emphasis added) is problematic 
because it implies some but not all land management eligibles are 
eligible to compete for permanent positions. The employee union added 
``In fact, the section applies to all land management eligibles, as 
defined in the statute and in the proposed regulation, not only to 
certain ones . . . [and] could lead practitioners to wrongfully exclude 
subsets of land management eligibles.'' The employee union recommended 
deleting the word ``certain'' from the heading.
    OPM notes this section applies only to those land management 
employees who meet the eligibility requirements of the statute (i.e., 
current and former time-limited land management employees). OPM agrees, 
however, the original title may cause confusion by suggesting greater 
limitations beyond meeting the eligibility requirements. Consequently, 
OPM has revised the section heading for proposed Sec.  335.107 to read, 
``Sec.  335.107. Special selection procedures for land management 
eligibles under merit promotion.''
    The employee union further stated that Sec.  335.107 should be 
revised to reflect that the section was not about selection procedures 
and the Act established an ``entitlement to compete.'' Consequently, it 
recommended changing the heading to ``Entitlement of land management 
eligibles to compete for permanent positions under merit promotion.''
    OPM disagrees with this comment. This section is about selection 
procedures, as it encompasses eligibility

[[Page 84687]]

for selection as well as how selected individuals will be appointed 
(i.e., given a career or career-conditional appointment in accordance 
with 5 CFR 315.613). This formulation parallels language currently in 
Sec.  335.106 pertaining to individuals eligible under the Veterans 
Employment Opportunities Act of 1998, as amended. We retained 
``selection procedures'' for consistency in part 335.
    The employee union disagrees with the phrase ``if otherwise 
qualified'' in the regulatory language at Sec.  335.107 and states the 
phrase suggests some but not all land management employees are 
eligible. The employee union further states that the statute and the 
proposed definition at Sec.  315.613(b)(3) makes all land management 
employees eligible to compete for a permanent position and fears it 
could lead human resources specialists to wrongfully exclude subsets of 
eligible land management employees. The employee union recommends 
replacing ``if otherwise qualified'' with ``if they properly apply and 
otherwise meet qualifications for the position.''
    OPM is not adopting this suggestion. The phrase ``if otherwise 
qualified'' describes who may compete under merit promotion procedures 
in part 335 and entails more general considerations, such as whether an 
applicant meets the qualifications for the position being filled, 
satisfies any applicable time-in-grade requirements, etc.
    The employee union also provided a list of additional recommended 
edits to the proposed language at Sec.  335.107 as follows:

    1. ``There is a spurious close parenthesis in the parent 
phrase.''

    OPM agrees and removed the extraneous parenthesis in Sec.  335.107.

    2. ``As written, `compete' is under (a) and therefore does not 
apply to (b), leaving that which a land management eligible may do 
under the circumstances described under (b) unspecified. `Compete' 
should be the last word of the parent phrase, not the first word 
under (a).''

    OPM agrees and has revised the text in Sec.  335.107 to the 
following: ``. . . may compete, if otherwise qualified:''

    3. ``As written, the phrase ``in accordance with Sec.  315.613'' 
applies only to (b). It should apply to both (a) and (b) and 
therefore should be moved to the parent phrase.''
    4. ``As written, it is specified that a land management eligible 
selected to such a position is given a career or career-conditional 
appointment only in (b), but not in (a). This requirement exists for 
both.''

    OPM agrees with both comments immediately above and has modified 
Sec.  335.107(a) to include similar language to what appears in 
paragraph (b).

    5. ``As written, it is specified that a permanent position 
subject to the requirements of the statute are in the competitive 
service in (a), but not in (b). This requirement exists for both.''

    OPM agrees and has revised the text by removing the reference to 
``in the competitive service'' at Sec.  335.107(a). The reference to 
the ``competitive service'' at Sec.  335.107(a) is superfluous because, 
by definition, merit promotion procedures can only be used to fill 
positions in the competitive service. We also revised the text at Sec.  
335.107(b) to coincide. Further, the sentence added to Sec.  315.613(a) 
based on earlier comments notes the types of appointments available, 
which also are only available in the competitive service.

    6. ``As written, the use of the conjunction `or' at the end of 
(a) would mean a land management eligible could compete under (a) or 
under (b), but not both. In fact, a land management eligible is not 
precluded from, for example, applying for a position under (a) by 
virtue of having applied for one under (b). The appropriate 
conjunction for this circumstance is `and.'

    OPM is not adopting the suggestion to replace ``or'' with ``and'' 
between Sec.  335.107(a) and (b). OPM's use of ``or'' conveys that a 
land management eligible may compete in either of two instances: if a 
job is advertised under merit promotion procedures outside the agency's 
workforce, or if a job is advertised under merit promotion procedures 
within the agency's workforce. The use of ``and'' may confuse readers 
to think a land management eligible may only apply when a job is 
advertised both ways.

    7. ``The statement `A land management eligible so selected will 
be given a career or career-conditional appointment' does not go to 
the point of the section, the entitlement of land management 
eligibles to compete for permanent positions. It is one of several 
aspects that relate to selection. As such, it is handled under the 
section dealing with these matters, at Sec.  315.613(e). It is not 
needed here.

    OPM notes that the employee union also commented above at #4 that 
this sentence only appeared in Sec.  335.107(b) but also applied to 
Sec.  335.107(a). OPM accepted the change requested at comment #4 and 
added the language to paragraph (a). However, OPM disagrees with 
comment #7. We believe describing the type of appointment a land 
management eligible may receive is appropriate under this section 
heading, as it is an aspect of selection. We note this reference to the 
type of appointment parallels language currently in Sec.  335.106 
pertaining to individuals eligible under the Veterans Employment 
Opportunities Act of 1998, as amended. We retained this formulation in 
proposed Sec.  335.107 for consistency with part 335.
    To effectuate these requested changes, the employee union 
recommended that OPM redraft Sec.  335.107 as follows:

Sec.  335.107. Entitlement of Land Management Eligibles To Compete for 
Permanent Positions Under Merit Promotion

    A current or former time-limited employee of a land management 
agency who is a land management eligible, as defined in Sec.  
315.613(b)(3), is entitled to compete in accordance with the provisions 
of Sec.  315.613:
    (a) for a permanent position in the competitive service 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 its merit promotion procedures; and
    (b) for a permanent position in the competitive service at the land 
management agency at which they were most recently an employee when 
that agency is accepting applications from individuals within the 
agency's workforce under its merit promotion procedures.
    OPM responded to each bulleted issue individually above and is not 
adopting the recommended language in its entirety. As previously noted, 
we are making many of the recommended revisions to Sec.  335.107 based 
on the concerns expressed by the employee union. OPM also notes that a 
former time-limited employee of a land management agency who is a land 
management eligible is considered ``within the [land management] 
agency's workforce'' as long as the employee was most recently an 
employee of that agency (date of separation was not more than 2 years 
prior to application), even if the time-limited appointment has ended. 
See 5 U.S.C. 9602(d).

Expected Impact of This Final Rule

A. Statement of Need

    OPM is issuing this final rule to implement statutory changes that 
allow certain current and former time-limited employees of a land 
management agency to compete for permanent positions at a land 
management agency, when the agency is accepting applications from 
individuals within the agency's workforce under merit promotion 
procedures; or at any agency when the agency is accepting applications 
from individuals from outside its own workforce under merit

[[Page 84688]]

promotion procedures. These changes are in response to the enactment of 
the Act, Public Law 114-47, 5 U.S.C. 9601 and 9602.

B. Impact

    This final rule provides a pathway for certain current and former 
land management employees currently serving (or who have served) under 
time-limited appointments at 5 CFR part 316 to compete for vacant 
permanent Federal positions in the competitive service under merit 
promotion procedures. Prior to enactment of the Act, these individuals 
competed for Federal jobs open to U.S. citizens through an open 
competitive process (unless the Land Management eligible had previously 
acquired competitive status). These employees now have statutory 
eligibility to compete under merit promotion procedures under certain 
circumstances. Thus, the law treats these individuals as if they had 
competitive status for purposes of applying for permanent Federal jobs 
advertised under an agency's merit promotion procedures. A potential 
impact may be that the demand for jobs advertised under these 
procedures could increase, as measured by an increase in the number of 
applicants vying for positions advertised under these procedures. This 
may result in longer processing times or ``time to hire'' periods than 
was previously the case.
    Another potential impact could be on job-seeking veterans whose 
eligibility derives from the Veterans Employment Opportunities Act 
(VEOA) of 1998, as amended. The VEOA provides eligible veterans with 
the right to apply for positions advertised under merit promotion 
procedures when the hiring agency seeks applicants outside the hiring 
agency's workforce. Prior to enactment of the Act, VEOA eligible 
veterans were the only group with a statutory entitlement to compete 
for positions being filled by an agency from outside its own workforce 
under merit promotion procedures. In general, this may increase 
competition for these positions in general, and thus may reduce the 
chances of a VEOA eligible being selected for one of these positions.
    Lastly, this rule could impact current employees of land management 
agencies serving in career-ladder positions. An employee in a career 
ladder position may be non-competitively promoted to the next highest 
grade-level, provided the next highest grade-level is within the 
career-ladder, the employee meets time-in-grade requirements, and is 
otherwise qualified for the duties at the next highest grade level. 
Because the Act extends eligibility to individuals outside the agency's 
or the Federal government's workforce, employees in career-ladder 
positions may now find themselves pitted against these external 
candidates.
    OPM cannot quantify the size of these potential impacts (including 
the impact on VEOA eligible) because we have no way of knowing the 
volume or frequency with which land management eligibles may apply for 
a position under these rules.

C. Regulatory Alternatives

    There is no regulatory alternative to the final rule because OPM is 
required by the Act to implement the statute through regulations (see 5 
U.S.C. 9602(e)).

D. Costs

    The costs associated with the final rule are minimal and include: 
the costs associated with the resources needed to process a potentially 
higher volume of job applicants for certain Federal jobs and the usual 
learning curve of implementing a regulatory change. To help minimize 
the latter cost, OPM intends to issue supplemental, explanatory 
guidance as well as provide technical assistance upon request to any 
agency that may require such assistance. Because agency resources and 
the potential volume of increased job applicants vary, OPM cannot 
monetize the costs of these rules.

E. Benefits

    The final rule will benefit certain employees and former employees 
of land management agencies and may benefit hiring agencies as well. 
These rules allow current and former time-limited employees of land 
management agencies who are otherwise ineligible (i.e., they have not 
acquired competitive status nor do they have reinstatement eligibility) 
to compete for permanent jobs under merit promotion procedures to do 
so. Time-limited employees are ineligible to compete for vacant 
permanent positions advertised under merit promotion procedures 
because, by definition, they do not acquire competitive status on the 
basis of the time-limited appointment. Generally, positions filled 
under merit promotion procedures are open to current or former career 
or career-conditional employees, certain veterans eligible under the 
VEOA and other individuals with special appointment eligibilities who 
are treated as if they have competitive status (i.e., former peace 
corps volunteers or certain military spouses). Because many agencies 
fill non-entry level positions using merit promotion procedures, 
qualified time-limited employees may never be considered for these 
positions under merit promotion procedures. To remedy this 
circumstance, Congress enacted the Act to provide a pathway for certain 
time-limited employees in Federal land management agencies to permanent 
positions. These provisions allow eligible current and former time-
limited land management employees to compete for permanent positions in 
the competitive service under merit promotion procedures that 
previously were closed to them.
    Hiring agencies may benefit from having an additional source of 
experienced land management employees to consider under their merit 
promotion procedures who otherwise may not have been within reach for 
selection when applying through the competitive examining process. This 
potential benefit must be balanced with the costs associated with 
processing a potentially higher volume of job applicants (including 
longer time-to-hire processing times) under merit promotion procedures.

Regulatory Review

    OPM has examined the impact of this rule as required by Executive 
Orders 12866, 13563, and 14094, which 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). This 
rule is considered a ``significant regulatory action'' under section 
3(f) of Executive Order 12866.

Regulatory Flexibility Act

    The Director of OPM certifies that this rule 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.

[[Page 84689]]

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

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (also known as the Congressional Review Act) (5 U.S.C. 801 
et seq.) requires rules (as defined in 5 U.S.C. 804) to be submitted to 
Congress before taking effect. OMB's Office of Information and 
Regulatory Affairs has determined this is not a major rule as defined 
by the Congressional Review Act (5 U.S.C. 804(2)).

Paperwork Reduction Act

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

List of Subjects in 5 CFR Parts 315 and 335

    Government employees.

Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.

    Accordingly, OPM amends 5 CFR parts 315 and 335 as follows:

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 time-
limited 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 time-
limited 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 time-
limited 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 time-
limited 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) Initially was hired under competitive procedures, for a time-
limited appointment in the competitive service in accordance with part 
316, and has not received a permanent appointment;
    (B) Has served under one 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) Has performed at an acceptable level during each period of 
service; or
    (ii) An individual who previously served in a land management 
agency who:
    (A) Initially was hired under a time-limited appointment under 
competitive procedures in the competitive service in accordance with 
part 316, and did not receive a permanent appointment before leaving 
Federal service;
    (B) Served under one 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) 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 a time-limited 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 is expected to consider the application 
of a land

[[Page 84690]]

management eligible; and 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, sec. 2(a) (Aug. 7, 2015), as amended by Pub. L. 114-328, sec. 
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 land management 
eligibles under merit promotion.

    A current or former land management employee of a land management 
agency, who is a land management eligible, as defined in Sec.  
315.613(b)(3) of this chapter, may compete, if otherwise qualified for:
    (a) A permanent position at any agency (including, but not limited 
to, a land management agency), in accordance with the provisions of 
Sec.  315.613 of this chapter, when that agency is accepting 
applications from individuals outside its own workforce under merit 
promotion procedures. A land management eligible so selected will be 
given a career or career-conditional appointment under Sec.  315.613; 
or
    (b) A permanent position at the land management agency with which 
the individual was most recently an employee, in accordance with the 
provisions of Sec.  315.613 of this chapter, 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. 2023-26723 Filed 12-5-23; 8:45 am]
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