Appointment of Nonstatus Employees Entitled to Placement in a Different Agency Upon Restoration to Duty From Uniformed Service

SUMMARY: The Office of Personnel Management (OPM) is issuing interim

regulations to permit Schedule A appointments of certain excepted

service employees who are entitled to placement in a different agency

if their original employing agency cannot reemploy them following

uniformed service. These regulations implement the Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA), Public Law

103-353, which mandates such placement. Interim regulations setting out

the categories of employees who are eligible for this assistance and

OPM's responsibility for placing them were published for comment on

September 1, 1995 (60 FR 45650).

DATES: Effective: October 30, 1995.

Comments must be received on or before December 29, 1995.

ADDRESSES: Send or deliver comments to Leonard R. Klein, Associate

Director for Employment, U.S. Office of Personnel Management, 1900 E

Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Raleigh M. Neville, (202) 606-0830.

SUPPLEMENTARY INFORMATION: USERRA clarifies, expands, and strengthens

the restoration rights of employees who perform active duty in a

uniformed service. Among the changes are a requirement that OPM place

in the executive branch certain categories of employees when their

former agencies determine that it is ``impossible or unreasonable'' to

reemploy them. The employees entitled to special placement assistance

are:

(1) Executive branch employees (including those serving under

excepted or time-limited appointments) whose agencies no longer exist

and the functions have not been transferred, or it is otherwise

impossible or unreasonable to reemploy them;

(2) Legislative and judicial branch employees;

(3) National Guard Technicians; and

(4) Employees of the intelligence agencies.

Placement in executive branch positions frequently requires that an

individual have competitive civil service status or be hired through

competitive examination. Executive branch employees who left career or

career-conditional appointments or who had established reinstatement

eligibility based on prior service are eligible for noncompetitive

placement in competitive service positions. Executive branch employees

who left temporary or term appointments are generally eligible for

noncompetitive reappointment to complete any unexpired portion of those

appointments. The remaining employees entitled to placement, however,

have no status that would permit their noncompetitive appointment in

the competitive service.

Under USERRA, the employees are entitled to placement in positions

that are equivalent in terms of pay, grade, and status to the positions

they left. Since the employees covered by this interim regulation left

positions filled under excepted appointment, it is appropriate that

they be placed in the executive branch under an excepted appointment.

Such appointment would permit the restored employees to continue

serving indefinitely (or up to any time limit of their original

appointment) and to be promoted or reassigned to other positions in

their new agency, but would not give them competitive status they could

not have earned in their original positions.

Excepted appointing authority already exists under Sec. 213.3102(j)

for National Guard Technicians who are applying for or receiving a

civil service annuity based on a disability that disqualifies them from

membership in the National Guard or from holding the military grade

required as a condition of their Technician employment. These interim

regulations expand that authority to cover nonstatus employees entitled

to placement under USERRA, with one exception.

The Schedule A authority does not cover employees who held Schedule

C appointments or appointments under statutory authorities that

specified the employees served at the discretion, will, or pleasure of

the agency. We find that such at-will employees are not entitled to

placement in other agencies if their original employing agency declines

to reemploy them. Since their original appointments could be terminated

at any time, their positions afforded ``no reasonable expectation that

employment will continue indefinitely or for a reasonable period,'' as

required by USERRA.

Waiver of Notice of Proposed Rulemaking

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 the

statutory provisions for reemployment in other agencies became

effective on December 12, 1994. The Schedule A appointing authority set

out in these interim regulations is needed for practical implementation

of that law.

Regulatory Flexibility Act

I certify that this regulation will not have a significant impact

on a substantial number of small entities because it pertains only to

Federal employees and agencies.

List of Subjects in 5 CFR Part 213

Government employees, Reporting and recordkeeping requirements.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending part 213, as follows:

PART 213--EXCEPTED SERVICE

1. The authority citation for part 213 is revised to read as

follows:

Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958

Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103;

Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h),

and 8456; E.O. 12364,

[[Page 55174]]

47 FR 22931, 3 CFR 1982 Comp., p. 185; and Pub. L. 103-353.

2. In Sec. 213.3102, paragraph (j) is revised to read as follows:

Sec. 213.3102 Entire executive civil service.

* * * * *

(j) Positions filled by current or former Federal employees

eligible for placement under special statutory provisions. Appointments

under this authority are subject to the following conditions.

(1) Eligible employees. (i) Persons previously employed as National

Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement

under Sec. 353.110 of this chapter, or who are applying for or

receiving an annuity under the provisions of 5 U.S.C. 8337(h) or 8456

by reason of a disability that disqualifies them from membership in the

National Guard or from holding the military grade required as a

condition of their National Guard employment.

(ii) Executive branch employees (other than employees of

intelligence agencies) who are entitled to placement under Sec. 353.110

but who are not eligible for reinstatement or noncompetitive

appointment under the provisions of part 315 of this chapter.

(iii) Legislative and judicial branch employees and employees of

the intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are

entitled to placement under Sec. 353.110.

(2) Employees excluded. Employees who were last employed in

Schedule C or under a statutory authority that specified the employee

served at the discretion, will, or pleasure of the agency are not

eligible for appointment under this authority.

(3) Position to which appointed. Employees who are entitled to

placement under Sec. 353.110 will be appointed to a position that OPM

determines is equivalent in pay and grade to the one the individual

left, unless the individual elects to be placed in a position of lower

grade or pay. National Guard Technicians whose eligibility is based

upon a disability may be appointed at the same grade, or equivalent, as

their National Guard Technician position or at any lower grade for

which they are available.

(4) Conditions of appointment. (i) Individuals whose placement

eligibility is based on an appointment without time limit will receive

appointments without time limit under this authority. These appointees

may be reassigned, promoted, or demoted to any position within the same

agency for which they qualify.

(ii) Individuals who are eligible for placement under Sec. 353.110

based on a time-limited appointment will be given appointments for a

time period equal to the unexpired portion of their previous

appointment.

* * * * *

[FR Doc. 95-26851 Filed 10-27-95; 8:45 am]

BILLING CODE 6325-01-M