Federal Staffing Provisions Supporting Sunset of the Federal Personnel Manual

Federal RegisterJan 13, 1995

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SUMMARY: This rule places into regulation a limited number of Federal

staffing provisions that were formerly in the Federal Personnel Manual

(FPM). The remaining ``provisionally retained'' portions of the FPM

were abolished on December 31, 1994. This rule deletes or replaces

regulatory language which references the FPM. Its provisions also

define or clarify terms and describe procedures used in veterans'

preference, reductions in force, veterans' readjustment appointments,

term appointments, seasonal and intermittent employment, noncompetitive

term appointments based on Peace Corps service, exemption of certain

employees from coverage of the Part-time Career Employment Act,

physical requirements for employment, and actions taken during a

national emergency (including the possible appointment of relatives).

They extend delegations to agencies for assigning persons serving under

excepted appointments to the work of positions in the competitive

service; making temporary appointments of worker trainees pending

establishment of a register (TAPER); and extending time limits for

overseas temporary appointments. The provisions also delete

requirements for a number of regular reports. In the case of part 351,

Reduction in Force, and part 353, Restoration to Duty From Military

Service or Compensable Injury, sections are reworded for clarity and

consistency with decisions of the Merit Systems Protection Board.

EFFECTIVE DATE: January 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Diane Bohling, (202) 606-0960 with questions concerning the changes in

5 CFR 330; Thomas Glennon, (202) 606-0960 concerning the changes in 5

CFR 351; Raleigh Neville, (202) 606-0830 concerning the changes in 5

CFR 340, 5 CFR 353 and 5 CFR 930; and Mike Carmichael or Karen Jacobs,

(202) 606-0830, concerning the other changes.

SUPPLEMENTARY INFORMATION: The Vice President's National Performance

Review (NPR) recommended that the Office of Personnel Management (OPM)

``phase out the entire 10,000 page Federal Personnel Manual (FPM).''

The President endorsed the NPR recommendations.

In planning to abolish the FPM, OPM met over an extended period

with representatives of agencies and employee unions to identify which

FPM policies should be dropped, which should be continued in

regulation, and which should be available as a helpful reference in an

alternative format. The resulting recommendations were reviewed and

endorsed by the Interagency Advisory Group of agency personnel

directors and by the National Partnership Council.

This rule carries out the recommendations of those groups to retain

selected current policies in the area of staffing. Regulations to

establish new policies, including implementation of P.L. 103-353

(veterans' reemployment rights), will be proposed separately.

The proposed rule was published in the Federal Register at 59 FR

55212 on November 4, 1994, with a request for comments on or before

December 5, 1994. A copy of the proposed rule (including a line that

was inadvertently dropped in printing) was posted on November 3, 1994,

on OPM's computer bulletin board, Mainstreet. At the same time, all

personnel directors of departments and agencies were notified by fax of

the posting on Mainstreet and of the pending Federal Register

publication. The publication of the proposed rule was also announced in

a meeting of the Interagency Advisory Group of personnel directors.

Comments on the proposed rule were received from three departments,

two components of departments that had commented separately, one

independent agency, and one employee union.

We did not adopt suggestions for new policies not previously in

regulation or in the Federal Personnel Manual. Specifically, that

included suggestions to drop excepted service temporary employees from

reduction-in-force tenure group III and to deregulate the reemployment

priority list program. Although such suggestions will be considered for

future program improvements, they would have violated the consensus

gained for this particular rule from the long, collaborative review

process with agencies and unions. The consensus was to continue,

through this rule, a limited number of existing staffing policies that

would have ended with the sunset of the FPM. There was particular

agreement not to change current policies in the sensitive area of

reductions-in-force (RIF) and related reemployment priority lists

(RPL). That consensus was also likely the reason that few made comments

on the proposed rule and that comments sought clarification rather than

change

We also did not adopt recommendations to delete references to the

FPM in sections of the Code of Federal Regulations outside the scope of

this rule. Those deletions will be proposed with other regulatory

changes.

A department recommended amending Sec. 301.203 to delegate

authority directly to agencies to approve time-limit exceptions for

overseas limited appointments. We prefer to maintain OPM's role in

approving such delegations until agencies have more experience with the

recent regulatory changes for temporary employment.

We also did not conclude that epidemics warrant emergency-

indefinite appointment authority in Sec. 230.402(b).

Questions about terminology in the proposed rule are addressed

here: ``Equivalent grades in the Federal Wage System'' are mentioned in

Sec. 316.201(b) because there technically could be grades in the

Federal Wage System other than just ``WG.'' Subpart D of $340

eliminates reference to ``on-call'' employment as redundant; there is

no substantive difference between seasonal and on-call. The change in

terms from ``physically qualified'' to ``medically

[[Page 3056]] qualified'' in Sec. 930.105(a)(4) conforms to appropriate

terminology in part 339 of this chapter; it has nothing to do with drug

testing.

Comments did lead us to change wording in 12 places in this final

rule, either to clarify provisions or to adhere more closely to

existing policy.

In redesignated Sec. 230.402(d)(1) a reference to the Federal

Personnel Manual (FPM) is deleted.

Since paragraphs were re-lettered in Sec. 230.402, redesignated

Sec. 230.402(h)(2) is amended to refer to previous paragraph (c), not

paragraph (b).

A reference to the FPM is deleted from Sec. 300.104(b).

Added wording in Sec. 307.104 clarifies the second year appeal

rights of persons holding veterans readjustment appointments.

A line is restored to Sec. 316.201. It inadvertently had been

dropped from the proposed rule. It does not change the thrust of the

section, but clarifies how long a position should last for there to be

a TAPER appointment.

In Sec. 330.202, paragraph (c) is revised for clarity.

In Sec. 330.203, paragraph (d)(2)(iv) is revised to clarify that a

person is ineligible for RPL if that person separates for a reason

other than RIF on the date scheduled for a RIF separation.

Paragraph (d)(3) of Sec. 330.203 is also reworded to more

faithfully reflect existing policy and to avoid adding a new

requirement for agencies.

In Sec. 330.208, paragraph (a)(1) is revised to recognize single

agency qualification standards.

Section 333.102 is revised to use terms consistently.

In Sec. 353.301, paragraph (a) is corrected so the title and

content agree.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

apply only to Federal agencies and employees.

List of Subjects

5 CFR Part 211

Government employees, Veterans.

5 CFR Part 230

Civil defense, Government employees.

5 CFR Part 300

Freedom of information, Government employees, Reporting and

recordkeeping requirements, Selective Service System.

5 CFR Part 301

Government employees.

5 CFR Part 307

Government employees, Veterans.

5 CFR Part 310

Government employees.

5 CFR Part 316

Government employees.

5 CFR Part 330

Armed forces reserves, Government employees.

5 CFR Part 333

Government employees.

5 CFR Part 339

Equal employment opportunity, Government employees, Health,

Individuals with disabilities.

5 CFR Part 340

Government employees.

5 CFR Part 351

Administrative practice and procedure, Government employees.

5 CFR Part 353

Administrative practice and procedure, Government employees.

5 CFR Part 930

Administrative practice and procedure, Computer technology,

Government employees, Motor vehicles.

Office of Personnel Management.

James B. King,

Director.

Accordingly, 5 CFR parts 211, 230, 300, 301, 307, 310, 316, 330,

333, 339, 340, 351, 353, and 930 are amended as set forth below.

PART 211--VETERAN PREFERENCE

1. Part 211 is revised to read as follows:

PART 211--VETERAN PREFERENCE

Sec.

211.101 Purpose.

211.102 Definitions.

211.103 Administration of preference.

Authority: 5 U.S.C. 1302.

Sec. 211.101 Purpose.

The purpose of this part is to define veterans' preference and the

administration of preference in Federal employment. (5 U.S.C. 2108)

Sec. 211.102 Definitions.

For purposes of preference in Federal employment the following

definitions apply:

(a) Veteran means a person who was separated with an honorable

discharge or under honorable conditions from active duty in the armed

forces performed--

(1) In a war; or,

(2) In a campaign or expedition for which a campaign badge has been

authorized; or

(3) During the period beginning April 28, 1952, and ending July 1,

1995; or,

(4) For more than 180 consecutive days, other than for training,

any part of which occurred during the period beginning February 1,

1955, and ending October 14, 1976.

(b) Disabled veteran means a person who was separated under

honorable conditions from active duty in the armed forces performed at

any time and who has established the present existence of a service-

connected disability or is receiving compensation, disability

retirement benefits, or pensions because of a public statute

administered by the Department of Veterans Affairs or a military

department.

who meet the definition of ``preference eligible'' in 5 U.S.C. 2108.

Preference eligibles are entitled to have 5 or 10 points added to their

earned score on a civil service examination (see 5 U.S.C. 3309). They

are also accorded a higher retention standing in the event of a

reduction in force (see 5 U.S.C. 3502). Preference does not apply,

however, to inservice placement actions such as promotions.

(d) Armed forces means the United States Army, Navy, Air Force,

Marine Corps, and Coast Guard.

(e) Uniformed services means the armed forces, the commissioned

corps of the Public Health Service, and the commissioned corps of the

National Oceanic and Atmospheric Administration.

(f) Active duty or active military duty means full-time duty with

military pay and allowances in the armed forces, except for training or

for determining physical fitness and except for service in the Reserves

or National Guard.

(g) Separated under honorable conditions means either an honorable

or a general discharge from the armed forces. The Department of Defense

is responsible for administering and defining military discharges.

Sec. 211.103 Administration of preference.

Agencies are responsible for making all preference determinations

except for [[Page 3057]] preference based on a common law marriage.

Such a claim should be referred to OPM's General Counsel for decision.

PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT

2. The authority citation for part 230 is revised to read as

follows:

Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577; 3 CFR 1954--

1958 Comp., p. 218; sec. 230.402 also issued under 5 U.S.C. 1104.

3. In Sec. 230.402, paragraphs (a) through (h) are redesignated as

paragraphs (b) through (i), respectively; a new paragraph (a) is added;

and newly redesignated paragraphs (b), (d)(1), and (h)(2) are revised

to read as follows:

Sec. 230.402 Agency authority to make emergency-indefinite

appointments in a national emergency.

(a) When a national emergency exists--(1) Definition. A national

emergency must meet all of the following conditions:

(i) It was declared by the President or Congress.

(ii) It involves a danger to the United States' safety, security,

or stability that results from specified circumstances or conditions

and that is national in scope.

(iii) It requires a national program specifically intended to

combat the threat to national safety, security, or stability.

(2) Termination of a national emergency. A national emergency no

longer exists if it is officially terminated by the President or

Congress, or if the specific circumstances, conditions, or program

cited in the original declaration are terminated or corrected.

(b) Basic authority. Agencies may make emergency-indefinite

appointments without OPM approval during any national emergency as

defined in paragraph (a) of this section. The head of an agency with a

defense-related mission may request OPM's approval to make emergency-

indefinite appointments without a declared national emergency when the

President has authorized the call-up of some portion of the military

reserves for some military purpose. The request must demonstrate that

normal hiring procedures cannot meet surge employment requirements and

that use of emergency-indefinite appointments is necessary for economy

and efficiency. Except as provided by paragraphs (c) and (d) of this

section, agencies must make emergency-indefinite appointments from

appropriate registers of eligibles as long as there are available

eligibles.

* * * * *

(d)(1) Persons who were recruited on a standby basis prior to the

national emergency;

* * * * *

(h) * * *

(2) The selection procedures of part 333 of this chapter apply to

emergency-indefinite employees appointed outside the register under

paragraph (c) of this section.

* * * * *

PART 300--EMPLOYMENT (GENERAL)

4. The authority citation for part 300 is revised to read as

follows:

Authority: 5 U.S.C. 552, 3301, and 3302; E.O. 10577, 3 CFR 1954-

1958 Comp., page 218, unless otherwise noted.

Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201,

7204, and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803.

Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.

Secs. 300.401 through 300.408 also issued under 5 U.S.C.

1302(c), 2301, and 2302.

Secs. 300.501 through 300.507 also issued under 5 U.S.C.

1103(a)(5).

Sec. 300.603 also issued under 5 U.S.C. 1104.

5. In Sec. 300.104, paragraph (b) is revised to read as follows:

Sec. 300.104 Appeals, grievances and complaints.

(b) Examination ratings. A candidate may file an appeal with the

Office from his or her examination rating or the rejection of his or

her application, except that, where the Office has delegated examining

authority to an agency, the candidate should appeal directly to that

agency. The appeal and supporting documents shall be filed with the

agency office that determined the rating.

* * * * *

6. In Sec. 300.201, paragraphs (b) through (e) are redesignated as

paragraphs (c) through (f), respectively and a new paragraph (b) is

added to read as follows:

Sec. 300.201 Examinations.

* * * * *

(b) The Office maintains control over the security and release of

testing and examination materials which it has developed and made

available to agencies for initial competitive appointment or inservice

use unless the materials were developed specifically for an agency

through a reimbursable contractual agreement. These testing and

examination materials include, and are subject to the same controls as,

those described in paragraphs (a)(1) and (a)(2) of this section.

7. A new subpart C, consisting of Sec. 300.301, is added to read as

follows:

Subpart C--Details of Employees

Sec.

300.301 Authority.

Sec. 300.301 Authority.

(a) In accordance with 5 U.S.C. 3341, an agency may detail an

employee in the competitive service to a position in either the

competitive or excepted service.

(b) In accordance with 5 U.S.C. 3341, an agency may detail an

employee in the excepted service to a position in the excepted service

and may also detail an excepted service employee serving under Schedule

A, Schedule B, or the Veterans Readjustment Act, to a position in the

competitive service.

position in the competitive service may be made only with the prior

approval of the Office of Personnel Management or under a delegated

agreement between the agency and OPM.

8. In Sec. 300.407, paragraph (b) is revised to read as follows:

Sec. 300.407 Documentation.

* * * * *

(b) When requested by OPM, agencies will provide reports on the use

of commercial recruiting firms, based on the records required in

paragraph (a) of this section.

PART 301--OVERSEAS EMPLOYMENT

9. The authority citation for part 301 continues to read as

follows:

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

Comp., p. 218, as amended by E.O. 10641, 3 CFR, 1954-1958 Comp., p.

274, unless otherwise noted.

10. In Sec. 301.203, paragraph (c) is revised and paragraph (d) is

added to read as follows:

Sec. 301.203 Duration of appointment.

* * * * *

or less to meet administrative needs for temporary employment. An

agency may extend such an appointment for up to a maximum of 1

additional year.

(d) Upon request from the headquarters level of a Department or

agency, OPM may approve, or delegate to agencies the authority to

approve, exceptions to the time limits set out in paragraph (c) of this

section. [[Page 3058]]

PART 307--VETERANS READJUSTMENT APPOINTMENTS

11. The authority citation for part 307 continues to read as

follows:

Authority: 5 U.S.C. 3301, 3302; E.O. 11521, 3 CFR, 1970 Comp.,

p. 912; 38 U.S.C. 4214.

Sec. 307.102 [Amended]

12. In Sec. 307.102, paragraph (c) is removed.

13. Section 307.103 is revised to read as follows:

Sec. 307.103 Appointing authority.

(a) An agency may appoint any veteran who served on active duty

after August 4, 1964, who meets the basic veterans readjustment

eligibility provided by law.

(b) Appointments are subject to investigation by OPM. A law,

Executive order, or regulation which disqualifies a person for

appointment in the competitive service also disqualifies a person for a

veterans readjustment appointment.

14. Section 307.104 is added to read as follows:

Sec. 307.104 Appeal rights.

A veterans readjustment appointment (VRA) is an excepted

appointment to a position otherwise in the competitive service.

Veterans readjustment appointees have the same appeal rights as

excepted service employees under parts 432 and 752 of this chapter,

except the appointees are also entitled to limited appeal protection

during their 1st year of service as set forth in Sec. 315.806 of this

chapter. This means that a VRA appointee with more than 1 year of

current continuous service, who is also a preference eligible, can

appeal an adverse action to the Merit Systems Protection Board.

Nonpreference eligibles serving under VRA appointments do not get such

protection until they are converted to the competitive service.

PART 310--EMPLOYMENT OF RELATIVES

15. The authority citation for part 310 continues to read as

follows:

Authority: 5 U.S.C. 3302, 7301; E.O. 10577, 3 CFR, 1954-1958

Comp., p. 218; E.O. 11222, 3 CFR 1964-1965 Comp., p. 306.

16. Section 310.202 is revised to read as follows:

Sec. 310.202 Exceptions.

When necessary to meet urgent needs resulting from an emergency

posing an immediate threat to life or property, or a national emergency

as defined in Sec. 230.402(a)(1) of this title, a public official may

employ relatives to meet those needs without regard to the restrictions

in section 3110 of title 5, United States Code, and this part.

Appointments under these conditions are temporary not to exceed 1

month, but may be extended for a 2nd month if the emergency need still

exists.

PART 316--TEMPORARY AND TERM EMPLOYMENT

17. The authority citation for part 316 is revised to read as

follows:

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

Comp. p. 218); Sec. 316.302 also issued under 5 U.S.C. 3304(c), 22

U.S.C. 2506 (94 Stat. 2158); 38 U.S.C. 2014, and E.O. 12362, as

revised by E.O. 12585; Sec. 316.402 also issued under 5 U.S.C.

3304(c) and 3312, 22 U.S.C. 2506 (93 Stat. 371), E.O. 12137, 38

U.S.C. 2014, and E.O. 12362, as revised by E.O. 12585 and E.O.

12721.

18. Section 316.201 is revised to read as follows:

Sec. 316.201 Purpose and duration.

(a) General. OPM may authorize an agency to fill a vacancy by

temporary appointment pending establishment of a register (TAPER

appointment) when there are insufficient eligibles on a register

appropriate for filling the vacancy in a position that will last for a

period of more than 1 year and the public interest requires that the

vacancy be filled before eligibles can be certified. The agency must

follow the provisions of part 333 of this chapter when making a TAPER

appointment.

(b) Specific authority for Worker-Trainee positions. Agencies may

make TAPER appointments to positions at GS-1, WG-1, and WG-2 and may

reassign or promote the appointees to other positions through grade GS-

3, WG-4, or equivalent grades in the Federal Wage System.

19. Section 316.301 is revised to read as follows:

Sec. 316.301 Purpose and duration.

An agency may make a term appointment for a period of more than 1

year but not more than 4 years when the need for an employee's services

is not permanent. Reasons for making a term appointment include, but

are not limited to: project work, extraordinary workload, scheduled

abolishment, reorganization, or contracting out of the function,

uncertainty of future funding, or the need to maintain permanent

positions for placement of employees who would otherwise be displaced

from other parts of the organization.

20. In Sec. 316.302, paragraph (c)(3) is revised to read as

follows:

Sec. 316.302 Selection of term employees.

* * * * *

(3) A person eligible for career or career-conditional employment

under Secs. 315.601, 315.605, 315.606, 315.607, 316.608, 315.609, or

315.703 of this chapter.

* * * * *

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

21. The authority citation for part 330 continues 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 H also issued under 5

U.S.C. 8337(h) and 8457(b); subpart I also issued under sec. 4432 of

Pub. Law 102-484.

22. Section 330.201 is revised to read as follows:

Sec. 330.201 Establishment and maintenance of RPL.

(a) The reemployment priority list (RPL) is the mechanism agencies

use to give reemployment consideration to their former competitive

service employees separated by reduction in force (RIF) or fully

recovered from a compensable injury after more than 1 year. The RPL is

a required component of agency positive placement programs. In filling

vacancies, the agency must give RPL registrants priority consideration

over certain outside job applicants and, if it chooses, also may

consider RPL registrants before considering internal candidates.

(b) Each agency is required to establish and maintain a

reemployment priority list for each commuting area in which it

separates eligible competitive service employess by RIF or when a

former employee recovers from a compensable injury after more than 1

year, except as provided in paragraph (c) of this section. For purposes

of this subpart, agency means Executive agency as defined in 5 U.S.C.

105. All components of an agency within the commuting area utilize a

single RPL and are responsible for giving priority consideration to the

RPL registrants.

separated by reduction in force if the agency operates a placement

program for its employees and obtains OPM concurrence that the program

satisfies the basic requirements of this subpart. The intent of this

provision is to allow agencies to adopt different placement strategies

that are effective for their particular programs [[Page 3059]] yet

satisfy legal entitlements to priority consideration in reemployment.

23. In Sec. 330.202, paragraph (a)(1) is revised and paragraph (c)

is added to read as follows:

Sec. 330.202 Application.

(a)(1) To be entered on the RPL, an eligible employee under

Sec. 330.203 must complete an application prescribed by the employing

agency and inform the agency of any significant changes in the

information provided. This application must provide for the employee to

specify the conditions under which he or she will accept employment,

including grade, occupation, and minimum hours or work per week, in

addition to positions at the same representative rate and type of work

schedule (e.g., full-time, part-time, seasonal, intermittent, on-call,

etc.) as the position from which the employee was or will be separated.

Registration may take place as soon as a specific notice of separation

under part 351 of this chapter, or a Certification of Expected

Separation as provided in Sec. 351.807 of this chapter, has been

issued. The employee must submit the application within 30 calendar

days after the RIF separation date. An employee who fails to submit a

timely application is not entitled to be placed on the RPL. If an

agency has components scattered throughout a large commuting area, the

agency may allow eligibles to indicate their availability only for

certain sub-areas within the commuting area. However, the agency cannot

deny consideration throughout the entire commuting area if the eligible

wants it.

* * * * *

requested, in identifying and listing on the reemployment priority list

(RPL) application those positions within the agency for which the

employee qualifies and is interested.

24. In Sec. 330.203, paragraphs (a)(4) and (c) are revised and

paragraph (d), (e), (f), and (g) are added to read as follows:

Sec. 330.203 Eligibility due to reduction in force.

(a) * * *

(4) Have not declined an offer under subpart G of part 351 of this

chapter of a position with the same type of work schedule and a

representative rate at least as high as that of the position from which

the employee was or will be separated.

* * * * *

and a tenure group II employee is eligible for 1 year, from the date

the employee is entered on the RPL.

(d)(1) When an individual declines an offer of career, career-

conditional, or excepted appointment without time limit or fails to

reply to an inquiry, under this subpart, and the position meets the

acceptable conditions shown in his or her application, he or she loses

RPL consideration for all positions with a representative rate at or

below that grade. However, subject to paragraph (d)(2)(iii) of this

section, the individual retains eligibility for positions with a higher

representative rate up to the last grade held.

(2) Also, an individual is taken off the RPL before the period of

eligibility expires when the individual:

(i) Requests removal;

(ii) Receives a career, career-conditional, or excepted appointment

without time limit in any agency;

(iii) Declines an offer of career, career-conditional, or excepted

appointment without time limit or fails to reply to an inquiry, under

this subpart, by the employee's former agency, concerning a specific

position having a representative rate at least as high, and with the

same type of work schedule, as that of the position from which the

person was or will be separated.

(iv) Separates for some other reason (such as retirement,

resignation, etc.) before the date the RIF separation would take

effect. An employee who retires on or after the date of separation by

RIF does not lose RPL eligibility.

(v) Declines an interview or fails to appear for a scheduled

interview only if notified in advance of this requirement and the

subsequent consequences.

(vi) In the case of an individual enrolled on an RPL for Alaska or

overseas, leaves the area covered by that RPL or becomes disqualified

for overseas employment because of previous service or residence.

(3) When an agency removes an individual from the RPL because of

failure to reply to a specific permanent job offer or an inquiry of

availability for a specific permanent vacancy, the agency must have

evidence to show that a written offer or inquiry was made (e.g., a

Postal Service ``return receipt signed by addressee only''). The

written offer or inquiry to the individual must clearly state that

failure to respond will result in loss of RPL consideration for that

grade or higher grades, if eligible.

(e) Declination of nonpermanent employment has no effect on RPL

eligibility or continuation of RPL consideration.

(f) Consideration for all jobs (whether permanent or nonpermanent)

is suspended for any individual who cannot be reached by the agency.

Submission of an updated application can reinstate consideration, but

the period of eligibility is not extended beyond the original time set

in paragraph (c) of this section.

(g) Eligibles who had agreed to transfer with their function but

were separated by RIF from the gaining competitive area are registered

on the RPL of the gaining competitive area.

25. In Sec. 330.204, paragraphs (a) and (b)(3) are revised and

paragraph (c) is added to read as follows:

Sec. 330.204 Eligibility due to compensable injury.

(a) A competitive service employee in tenure group I or II who is

separated (or who accepts a lower graded position in lieu of

separation) because of a compensable injury of disability (as defined

in part 353 of this chapter) who has fully recovered more than 1 year

after compensation began is entitled to be placed on the RPL provided

the individual applies within the timeframes addressed in Sec. 330.202.

Part 353 of this chapter contains information on eligibility.

* * * * *

(b) * * *

(3) Declines an offer or fails to respond to an inquiry of

availability about a specific position that is the same as or

equivalent to the position from which separated.

the time limits set in Sec. 330.202.

26. Section 330.205 is revised to read as follows:

Sec. 330.205 Employment restrictions.

(a) The restrictions in paragraph (b) of this section apply to the

filling of all competitive service vacancies, regardless of whether an

agency plans to make a temporary, term, or permanent appointment. This

means an agency must consider RPL registrants for nonpermanent as well

as permanent positions when they have indicated such interest on their

RPL application.

(b) When a qualified individual is available on an agency's RPL,

the agency may not make a final commitment to an individual not on the

RPL to fill a permanent or temporary competitive service position by:

(1) A new appointment, unless the individual appointed is a

qualified 10-point preference eligible; or

(2) Transfer or reemployment, unless the individual appointed is a

preference eligible, is exercising restoration rights under part 353 of

this chapter based on return from military service or recovery from a

compensable injury or disability [[Page 3060]] within 1 year, or is

exercising other statutory or regulatory reemployment rights.

involving employees on an agency's rolls, as authorized in paragraphs

position:

(1) When all qualified individuals on the RPL decline an offer of a

specific position or fail to respond to an official agency inquiry

about their availability for it; or

(2) By a current, qualified employee of the agency through:

(i) Detail or position change (promotion, demotion, reassignment);

(ii) Conversion to competitive appointment of employees currently

serving under appointments that carry a noncompetitive conversion

eligibility (e.g., Veterans Readjustment Appointee, 30 percent disabled

veterans, disabled employees under Schedule A appointment, Presidential

Management Interns, cooperative education students under Schedule B

appointment, and TAPERS); or

(iii) Reappointment without a break in service to the same position

currently held by an employee serving under a temporary appointment of

1 year or less (only to another temporary appointment not to exceed 1

year or less and not to a permanent appointment); or

(iv) Extension of an employee's temporary appointment up to the

maximum permitted by the appointment authority or as authorized by OPM.

(3) By a 30-day special needs appointment or 700 hour temporary

appointment of a severely disabled or mentally restored individual,

when the agency's staffing policies provide for these exceptions.

(d) An agency must clear the RPL at the grade level at which it

fills a position (regardless of the full performance level). Similarly,

if an agency advertises a position at multiple grade levels, it must

clear the RPL only at the grade level at which the position is

ultimately filled.

(e) Once an agency has cleared its RPL and made a final employment

commitment to an individual, the later registration of another employee

on the RPL does not prevent the fulfillment of the original commitment,

regardless of when the individual actually enters on duty.

(f) An agency may make an exception to this section and appoint an

individual not on the RPL as authorized by Sec. 330.207(d).

(g) When submitting a request for referral of eligibles, an agency

is required to indicate that no qualified RPL registrant is available

for the vacancy and therefore the agency may make a new appointment.

Similarly, an agency must clear its RPL before making appointments

under a direct-hire authority, which includes the Outstanding Scholar

provision, or delegated examining authority.

27. In Sec. 330.206, paragraphs (a)(1), (a)(2), and (b) are revised

to read as follows:

Sec. 330.206 Job consideration.

(a)(1) An eligible employee under Sec. 330.203 is entitled to

consideration for positions in the commuting area for which qualified

and available that are at no higher grade (or equivalent), have no

greater promotion potential than the position from which the employee

was or will be separated, and have the same type of work schedule. In

addition, an employee is entitled to consideration for any higher grade

previously held on a nontemporary basis in the competitive service from

which the employee was demoted under part 351 of this chapter.

(2) An employee is considered for positions having the same type of

work schedule as the position from which separated except that the

agency, at its discretion, may adopt provisions permitting employees to

request consideration for other work schedules in addition to that

formerly held.

* * * * *

(b)(1) An eligible employee under Sec. 330.205 is placed on the RPL

for reemployment consideration for his or her former position or an

equivalent one. If the individual cannot be placed in such a position

in the former commuting area, he or she is entitled to priority

consideration for an equivalent position elsewhere in the agency at the

time and in a manner as the agency determines will provide the

individual with maximum opportunities for consideration.

(2) In lieu of expanded consideration in other locations, an

individual who cannot be placed in his or her former or equivalent

position in the former commuting area may elect to be considered for

the next best available position in the former commuting area.

28. In Sec. 330.207, paragraphs (a), (b), (c)(1), and (d) are

revised to read as follows:

Sec. 330.207 Selection from RPL.

(a) Options. An agency must adopt one of the selection methods in

paragraphs (b) and (c) of this section for use in operating a single

RPL. The agency may adopt the same method for each RPL it establishes

or may vary the method by location, but it must adopt a written policy

for each RPL it establishes and maintains. After a method is adopted,

the agency uses that method in filling all positions. While an agency

may not vary the method used by individual vacancy, it may at any time

switch selection methods for employees enrolled on the RPL.

(b) Retention standing order. For each vacancy to be filled, the

agency shall place qualified individuals in group and subgroup order in

accordance with part 351 of this chapter. In making a selection, an

agency may not pass over an individual in group I to select from group

II and, within a group, may not pass over an individual in a higher

subgroup to select from a lower subgroup. Within a subgroup, an agency

may select an individual without regard to order of retention standing.

A person has no greater priority for the grade or position from which

separated than any other person on the list who is qualified for the

vacancy. An agency may make an exception to this selection order only

in accordance with paragraph (d) of this section.

(c)(1) Rating and ranking. For each vacancy to be filled, the

agency rates qualified individuals according to their job experience

and education. To do this, an agency shall develop job-related

evaluation procedures capable of distinguishing differences in

qualifications measured, which shall be applied in a fair and

consistent manner. Based on these procedures, the agency shall assign

qualified individuals a numerical score of at least 70 on a scale of

100. The agency shall grant 5 additional points to preference eligibles

under section 2108(3)(A) and (B) of title 5, United States Code, and 10

additional points to preference eligibles under section 2108(3) (C)

through (G) of that title.

* * * * *

(d) Exceptions. An agency may make an exception to this subpart and

appoint an individual who is not on the RPL or has lower standing than

others on the RPL. The exception may be granted only when necessary to

obtain an employee for duties that cannot be taken over without undue

interruption (as defined in Sec. 351.203 of this chapter) to the agency

by an individual who is on the RPL or has higher standing than the one

appointed. The agency shall notify, in writing, each individual on the

RPL who is adversely affected by an appointment under this paragraph of

the reasons for the exception and of the right of appeal to the Merit

Systems Protection Board.

29. In Sec. 330.208, paragraphs (a)(1) and (b) introductory text

are revised and [[Page 3061]] paragraph (a)(4) is added to read as

follows:

Sec. 330.208 Qualification requirements.

(a) * * *

(1) Meets OPM-established or approved qualification standards and

requirements for the position, including any minimum educational

requirements, and any selection placement factors established by the

agency;

* * * * *

(4) Meets any other applicable requirement for appointment to the

competitive service.

(b) An agency may make an exception to the qualification standard

and adopt an alternative standard under the following conditions (this

provision does not authorize waiver of the selection order required by

Sec. 330.207):

* * * * *

PART 333--RECRUITMENT AND SELECTION FOR TEMPORARY AND TERM

APPOINTMENTS OUTSIDE THE REGISTER

30. The authority citation for part 333 continues to read as

follows:

Authority: 5 U.S.C. 1302, 3301, 3302, E.O. 10577, 3 CFR 1954-

1958 Comp., p. 218; section 333.203 also issued under 5 U.S.C. 1104,

Pub. L. 95-454, sec. 3(5).

31. Section 333.101 is revised to read as follows:

Sec. 333.101 Standards for temporary and term appointments outside the

Except as OPM may otherwise specify, an agency, in making a

temporary or term appointment outside the register, shall determine

that the applicant meets the qualification standards issued by OPM and

that he or she is not disqualified for any of the reasons listed in

Sec. 339.101 and Sec. 731.201 of this chapter. Candidates found to be

qualified shall be assigned either an eligible rating or a numerical

score of at least 70 on a scale of 100.

32. Section 333.102 is revised to read as follows:

Sec. 333.102 Public notice for temporary and term appointments outside

the register.

An agency recruiting outside the register must send a vacancy

announcement to the OPM job information center(s) and place an order

with the State Employment Service office(s) that have geographic

jurisdiction over the position(s). The notices must describe the

qualifications required and application deadline; must include equal

opportunity and veterans preference provisions; and must follow other

OPM instructions for preparing vacancy announcements.

PART 339--MEDICAL QUALIFICATION DETERMINATIONS

33. The authority citation for part 339 continues to read as

follows:

Authority: 5 U.S.C. 3301, 3302, 5112; E.O. 9830, February 24,

1947.

34. In Sec. 339.102, paragraph (b) is revised to read as follows:

Sec. 339.102 Purpose and effect.

* * * * *

(b) Personnel decisions based wholly or in part on the review of

medical documentation and the results of medical examinations and

evaluations shall be made in accordance with appropriate parts of this

title.

* * * * *

PART 340--OTHER THAN FULL-TIME CAREER EMPLOYMENT (PART-TIME,

SEASONAL, AND INTERMITTENT)

35. The authority citation for part 340 continues to read as

follows:

Authority: 5 U.S.C. 3401 et seq., unless otherwise noted.

36. In Sec. 340.202, paragraph (c) is revised to read as follows:

Sec. 340.202 General.

* * * * *

term ``part-time career employment'' do not apply to employees with

appointments in tenure groups I or II who work under mixed tours of

duty. For this purpose, a mixed tour of duty consists of annually

recurring periods of full-time, part-time, or intermittent service as

long as the employee does not work part-time more than 6 pay periods

per calendar year.

37. Subpart D of part 340 is revised to read as follows:

Subpart D--Seasonal and Intermittent Employment

Sec.

340.401 Definitions.

340.402 Seasonal employment

340.403 Intermittent employment.

Authority: 5 U.S.C. 3401 et seq., unless otherwise noted.

Subpart D--Seasonal and intermittent Employment

Sec. 340.401 Definitions.

(a) Seasonal employment means annually recurring periods of work of

less than 12 months each year. Seasonal employees are permanent

employees who are placed in nonduty/nonpay status and recalled to duty

in accordance with preestablished conditions of employment.

(b) Intermittent employment means employment without a regularly

scheduled tour of duty.

Sec. 340.402 Seasonal employment.

(a) Appropriate use. Seasonal employment allows an agency to

develop an experienced cadre of employees under career appointment to

perform work which recurs predictably year-to-year. Consistent with the

career nature of the appointments, seasonal employees receive the full

benefits authorized to attract and retain a stable workforce. As a

result, seasonal employment is appropriate when the work is expected to

last at least 6 months during a calendar year. Recurring work that

lasts less than 6 months each year is normally best performed by

temporary employees. Seasonal employment may not be used as a

substitute for full-time employment or as a buffer for the full-time

workforce.

(b) Length of the season. Agencies determine the length of the

season, subject to the condition that it be clearly tied to nature of

the work. The season must be defined as closely as practicable so that

an employee will have a reasonably clear idea of how much work he or

she can expect during the year. To minimize the adverse impact of

seasonal layoffs, an agency may assign seasonal employees to other work

during the projected layoff period. While in nonpay status, a seasonal

employee may accept other employment, Federal or non-Federal, subject

to the regulations on political activity (part 733 of this title) and

on employee responsibilities and conduct (part 735), as well as

applicable agency policies. Subject to the limitation on pay from more

than one position (5 U.S.C. 5533), a seasonal employee may hold more

than one appointment.

between the agency and the seasonal employee prior to the employee's

entering on duty. At a minimum, the agreement must inform the employee:

(1) That he or she is subject to periodic release and recall as a

condition of employment,

(2) The minimum and maximum period the employee can expect to work,

(3) The basis on which release and recall procedures will be

effected, and

(4) The benefits to which the employee will be entitled while in a

nonpay status.

(d) Release and recall procedures. A seasonal employee is released

to nonpay status at the end of a season and recalled to duty the next

season. Release and recall procedures must be [[Page 3062]] established

in advance and uniformly applied. They may be based on performance,

seniority, veterans' preference, other appropriate indices, or a

combination of factors. A seasonal layoff is not subject to the

procedures for furlough prescribed in parts 351 and 752 of this title.

Reduction in force or adverse action procedures, as applicable, are

required for a seasonal layoff that is not in accordance with the

employment agreement, for example, if an agency intends to have an

employee work less than the minimum amount of time specified in the

employment agreement. However, an agency may develop a new employment

agreement to reflect changing circumstances.

(e) Noncompetitive movement. Seasonal employees serving under

career appointment may move to other positions in the same way as other

regular career employees.

Sec. 340.403 Intermittent employment.

(a) Appropriate use. An intermittent work schedule is appropriate

only when the nature of the work is sporadic and unpredictable so that

a tour of duty cannot be regularly scheduled in advance. When an agency

is able to schedule work in advance on a regular basis, it has an

obligation to document the change in work schedule from intermittent to

part-time or full-time to ensure proper service credit.

(b) Noncompetitive movement. Intermittent employees serving under

career appointment may move to other positions in the same way as other

regular career employees.

PART 351--REDUCTION IN FORCE

38. The authority citation for part 351 continues to read as

follows:

Authority: 5 U.S.C. 1302, 3502, 3503; Sec. 351.801 also issued

under E.O. 12828, 58 FR 2965.

39. In Sec. 351.202, paragraph (c)(7) is added to read as follows:

Sec. 351.202 Coverage.

* * * * *

(7) A change in an employee's work schedule from other-than-full-

time to full-time. (A change from full-time to other than full-time for

a reason covered in Sec. 351.201(A)(2) is covered by this part.)

40. Section 351.203 is amended by adding alphabetically the

definitions of ``Furlough'' and ``Undue Interruption'' to read as

follows:

Sec. 351.203 Definitions.

* * * * *

Furlough under this part means the placement of an employee in a

temporary nonduty and nonpay status for more than 30 consecutive

calendar days, or more than 22 workdays if done on a discontinuous

basis, but not more than 1 year.

* * * * *

Undue interruption means a degree of interruption that would

prevent the completion of required work by the employee 90 days after

the employee has been placed in a different position under this part.

The 90-day standard should be considered within the allowable limits of

time and quality, taking into account the pressures of priorities,

deadlines, and other demands. However, a work program would generally

not be unduly interrupted even if an employee needed more than 90 days

after the reduction in force to perform the optimum quality or quantity

of work. The 90-day standard may be extended if placement is made under

this part to a low priority program or to a vacant position.

41. In Sec. 351.301, the current paragraph is redesignated as

paragraph (a) and paragraph (b) is added to read as follows:

Sec. 351.301 Applicability.

* * * * *

(b) In a transfer of function, the function must cease in the

losing competitive area and continue in an identical form in the

gaining competitive area (i.e., in the gaining competitive area, the

function continues to be carried out by competing employees rather than

by noncompeting employees).

42. In Sec. 351.302, paragraphs (f) and (g) are added to read as

follows:

Sec. 351.302 Transfer of employees.

* * * * *

(f) An agency may not separate an employee who declines to transfer

with the function any sooner than it transfers employees who chose to

transfer with the function to the gaining competitive area.

(g) Agencies may ask employees in a canvass letter whether the

employee wishes to transfer with the function when the function

transfers to a different local commuting area. The canvass letter must

give the employee information concerning entitlements available to the

employee if the employee accepts the offer to transfer, and if the

employee declines the offer to transfer. An employee may later change

and initial acceptance offer without penalty. However, an employee may

not later change an initial declination of the offer to transfer.

43. In Sec. 351.303, paragraph (a) is revised and paragraph (c)(3)

is added to read as follows:

Sec. 351.303 Identification of positions with a transferring function.

(a) The competitive area losing the function is responsible for

identifying the positions of competing employees with the transferring

function. A competing employee is identified with the transferring

function on the basis of the employee's official position. Two methods

are provided to identify employees with the transferring function:

(1) Identification Method One; and

(2) Identification Method Two.

* * * * *

(3) In determining what percentage of time an employee performs a

function in the employee's official position, the agency may supplement

the employee's official position description by the use of appropriate

records (e.g., work reports, organizational time logs, work schedules,

etc.).

* * * * *

44. In Sec. 351.403, paragraph (a) is revised, paragraph (b)(5) is

removed, and paragraph (b)(6) is redesignated as (b)(5) to read as

follows:

Sec. 351.403 Competitive level.

(a)(1) Each agency shall establish competitive levels consisting of

all positions in a competitive area which are in the same grade (or

occupational level) and classification series, and which are similar

enough in duties, qualification requirements, pay schedules, and

working conditions so that an agency may reassign the incumbent of one

position to any of the other positions in the level without undue

interruption.

(2) Competitive level determinations are based on each employee's

official position, not the employee's personal qualifications.

(3) Sex may not be the basis for a competitive level determination,

except for a position OPM designates that certification of eligibles by

sex is justified.

(4) A probationary period required by subpart I of part 315 of this

chapter for initial appointment to a supervisory or managerial position

is not a basis for establishing a separate competitive level.

* * * * *

45. In Sec. 351.501, paragraphs (b)(1) and (b)(2) are revised to

read as follows:

Sec. 351.501 Order of retention--competitive service.

* * * * * [[Page 3063]]

(b) * * *

(1) Group I includes each career employee who is not serving a

probationary period. (A supervisory or managerial employee serving a

probationary period required by subpart I of part 315 of this title is

in group I if the employee is otherwise eligible to be included in this

group.) The following employees are in group I as soon as the employee

completes any required probationary period for initial appointment:

(i) An employee for whom substantial evidence exists of eligibility

to immediately acquire status and career tenure, and whose case is

pending final resolution by OPM (including cases under Executive Order

10826 to correct certain administrative errors);

(ii) An employee who acquires competitive status and satisfies the

service requirement for career tenure when the employee's position is

brought into the competitive service;

(iii) An administrative law judge;

(iv) An employee appointed under 5 U.S.C. 3104, which provides for

the employment of specially qualified scientific or professional

personnel, or a similar authority; and

(v) An employee who acquires status under 5 U.S.C. 3304(c) on

transfer to the competitive service from the legislative or judicial

branches of the Federal Government.

(2) Group II includes each career-conditional employee, and each

employee serving a probationary period under subpart H of part 315 of

this chapter. (A supervisory or managerial employee serving a

probationary period required by subpart I of part 315 of this title is

in group II if the employee has not completed a probationary period

under subpart H of part 315 of this title.) Group II also includes an

employee when substantial evidence exists of the employee's eligibility

to immediately acquire status and career-conditional tenure, and the

employee's case is pending final resolution by OPM (including cases

under Executive Order 10826 to correct certain administrative errors).

* * * * *

46. Section 351.502 is revised to read as follows:

Sec. 351.502 Order of retention--excepted service.

(a) Competing employees shall be classified on a retention register

in tenure groups on the basis of their tenure of employment, veteran

preference, length of service, and performance in descending order as

set forth under Sec. 351.501(a) for competing employees in the

competitive service.

(b) Groups are defined as follows:

(1) Group I includes each permanent employee whose appointment

carries no restriction or condition such as conditional, indefinite,

specific time limit, or trial period.

(2) Group II includes each employee:

(i) Serving a trial period; or

(ii) Whose tenure is equivalent to a career-conditional appointment

in the competitive service in agencies having such excepted

appointments.

(3) Group III includes each employee:

(i) Whose tenure is indefinite (i.e., without specific time limit),

but not actually or potentially permanent;

(ii) Whose appointment has a specific time limitation of more than

1 year; or

(iii) Who is currently employed under a temporary appointment

limited to 1 year or less, but who has completed 1 year of current

continuous service under a temporary appointment with no break in

service of 1 workday or more.

47. In Sec. 351.506, paragraph (b) is revised to read as follows:

Sec. 351.506 Effective date of retention standing.

* * * * *

(b) The retention standing of each employee retained in a

competitive level as an exception under Sec. 351.607 or Sec. 351.608 is

determined as of the date the employee would have been released from

the competitive level had the exception not been used. The retention

standing of each employee retained under either exception remains fixed

until completion of the reduction in force action which resulted in the

temporary retention.

* * * * *

48. In Sec. 351.701, paragraph (a) is revised to read as follows:

Sec. 351.701 Assignment involving displacement.

(a) General. When a group I or II competitive service employee with

a current annual performance rating of record of minimally successful

(Level 2) or equivalent, or higher, is released from a competitive

level, an agency shall offer assignment, rather than furlough or

separate, in accordance with paragraphs (b), (c), and (d) of this

section to another competitive position which requires no reduction, or

the lease possible reduction, in representative rate. The employee must

be qualified for the offered position. The offered position shall be in

the same competitive area, last at least 3 months, and have the same

type of work schedule (e.g., full-time, part-time, intermittent, or

seasonal) as the position from which the employee is released. Upon

accepting an offer of assignment, or displacing another employee under

this part, an employee retains the same status and tenure in the new

position. The promotion potential of the offered position is not a

consideration in determining an employee's right of assignment.

* * * * *

49. In Sec. 351.702, paragraph (a)(4) is revised to read as

follows:

Sec. 351.702 Qualifications for assignment.

(a) * * *

(4) Has the capacity, adaptability, and special skills needed to

satisfactorily perform the duties of the position without undue

interruption. This determination includes recency of experience, when

appropriate.

* * * * *

50. In Sec. 351.704, paragraph (b)(5) is added to read as follows:

Sec. 351.704 Rights and prohibitions.

* * * * *

(b) * * *

(5) Authorize or permit an agency to displace an employee or to

satisfy a competing employee's right to assignment by assigning the

employee to a position with a different type of work schedule (e.g.,

full-time, part-time, intermittent, or seasonal) than the position from

which the employee is released.

PART 353--RESTORATION TO DUTY FROM MILITARY SERVICE OR COMPENSABLE

INJURY

51. Part 353 is revised to read as follows:

PART 353--RESTORATION TO DUTY FROM MILITARY SERVICE OR COMPENSABLE

INJURY

Subpart A--General Provisions

Sec.

353.101 Scope.

353.102 Definitions.

353.103 Persons covered.

353.104 Notification of rights and obligations.

353.105 Maintenance of records.

353.106 Personnel actions during employee's absence.

353.107 Status upon reemployment.

353.108 Effect of performance and conduct on restoration rights.

353.109 Transfer of function to another agency.

353.110 OPM placement assistance.

353.111 Restoration rights of TAPER employees.

Subpart B--Military Service

353.201 Leaves of absence.

353.202 Mandatory restoration.

353.203 Physical disqualification.

353.204 Retention protection.

353.205 Prohibition against discrimination. [[Page 3064]]

Subpart C--Compensable Injury

353.301 Restoration rights.

353.302 Status upon reemployment.

Subpart D--Appeal Rights

353.401 Appeals to the Merit Systems Protection Board.

Authority: 38 U.S.C. 4301, et seq., and 5 U.S.C. 8151.

Subpart A--General Provisions

Sec. 353.101 Scope.

The rights and obligations of employees and agencies in connection

with leaves of absence or restoration to duty following military

service under 38 U.S.C. 4301 et seq., and restoration under 5 U.S.C.

8151 for employees who sustain compensable injuries, are subject to the

provisions of this part. Subpart A covers those provisions that are

common to both of the above groups of employees. Subpart B deals with

provisions that apply just to military duty and subpart C covers

provisions that pertain just to injured employees. Subpart D covers the

appeal rights of both groups.

Sec. 353.102 Definitions.

In this part:

Agency means:

(1) With respect to restoration following a compensable injury, any

department, independent establishment, agency, or corporation in the

executive branch, including the U.S. Postal Service and the Postal Rate

Commission, and any agency in the legislative or judicial branch; and

(2) With respect to military duty, all of the foregoing except for

any agency in the legislative or judicial branch, but including the

Government of the District of Columbia.

Fully recovered means compensation payments have been terminated on

the basis that the employee is able to perform all the duties of the

position he or she left or an equivalent one.

Injury means a compensable injury sustained under the provisions of

5 U.S.C. chapter 81, subchapter I, and includes, in addition to

accidental injury, a disease proximately caused by the employment.

Leave of absence means military leave, annual leave, leave without

pay (LWOP), furlough, continuation of pay, or any combination of these.

Military duty means a period of:

(1) Active duty for training or for service in the Armed Forces of

the United States;

(2) Inactive duty training in the Armed Forces of the United

States; and

(3) Active duty in the Public Health Service that is covered by 38

U.S.C. 4304 (b). For the purpose of coverage under 38 U.S.C. 4304 (c)

and (d), full-time training or other full-time duty performed by a

member of the National Guard under 32 U.S.C. 316, 502, 503, 504, or 505

is considered active duty for training in the Armed Forces of the

United States. For the purpose of 38 U.S.C. 4304 (d), inactive duty

training performed by that member under 32 U.S.C. 502 or 37 U.S.C. 206,

301, 309, 402, or 1002 is considered inactive duty training.

Partially recovered means an injured employee, though not yet able

to resume the full range of his or her regular duties, has recovered

sufficiently to return to part-time or light duty or to another

position with less demanding physical requirements. Ordinarily, it is

expected that a partially recovered employee will fully recover

eventually.

Physically disqualified means that:

(1) (i) For medical reasons the employee is unable to perform the

duties of the position formerly held or an equivalent one, or

(ii) There is a medical reason to restrict the individual from some

or all essential duties because of possible incapacitation (for

example, a seizure) or because of risk of health impairment (such as

further exposure to a toxic substance for an individual who has already

shown the effects of such exposure).

(2) The condition is considered permanent without little likelihood

for improvement or recovery.

Sec. 353.103 Persons covered.

(a) The provisions of this part concerned with military duty cover

each employee of an agency who enters on military duty from:

(1) A career or career-conditional appointment in the competitive

service; or

(2) An appointment with time limitation in a position outside the

competitive service.

(b) The provisions of this part concerning employee injury cover a

civil officer or employee in any branch of the Government of the United

States, including an officer or employee of an instrumentality wholly

owned by the United States, who was separated or furloughed from an

appointment without time limitation as a result of a compensable

injury; but do not include--

(1) A commissioned officer of the Regular Corps of the Public

Health Service;

(2) A commissioned officer of the Reserve Corps of the Public

Health Service on active duty; or

(3) A commissioned officer of the National Oceanic and Atmospheric

Administration.

serving under temporary appointments pending establishment of a

Sec. 353.104 Notification of rights and obligations.

When an agency separates, places on leave of absence, restores or

fails to restore an employee because of military duty or compensable

injury, it shall notify the employee his or her rights, obligations,

and benefits relating to Government employment, including any appeal

rights to the Merit Systems Protection Board (MSPB) as required by

Sec. 1201.21 of this title, or where appropriate, the right to grieve

under a negotiated grievance procedure. However, regardless of

notification, an employee is still obligated to exercise due diligence

in ascertaining his or her rights, and to seek reemployment within the

time limits provided by chapter 43 of title 38 of the U.S. Code, for

reemployment after military service or as soon as he or she is able

after a compensable injury.

Sec. 353.105 Maintenance of records.

Each agency shall identify the position vacated by an employee who

is injured or leaves to enter on military duty. It shall also maintain

the necessary records to assure that all such employees are preserved

the rights and benefits granted by this law and this part.

Sec. 353.106 Personnel actions during employee's absence.

(a) Agency promotion plans must provide a mechanism by which

employees who are absent because of military duty or compensable injury

can be considered for promotion.

(b) An employee whose position is reclassified while he or she is

absent because of military duty or compensable injury shall be

considered for that position in accordance with the provisions in part

335 of this chapter.

Sec. 353.107 Status upon reemployment.

Upon reemployment, an employee who was absent on military duty or

because of compensable injury is generally entitled to be treated as

though he or she had never left. This means the entire period from the

time the employee entered military service or was injured until he or

she was reemployed is creditable for purposes of rights and benefits

based upon seniority and length of service, including within-grade

increases, career tenure, [[Page 3065]] completion of probation, and

leave rate accrual.

Sec. 353.108 Effect of performance and conduct on restoration rights.

The laws covered by this part do not permit an agency to circumvent

the protections afforded by other laws to employees who face the

involuntary loss of their positions. Thus, an employee may not be

denied restoration rights because of poor performance or conduct that

occurred prior to the employee's departure for compensable injury or

military duty. However, separation for cause that is substantially

unrelated to the injury or to the performance of military duty negates

restoration rights. If during the period of injury or military duty the

employee's conduct is such that it would disqualify him or her for

employment under OPM or agency regulations, restoration rights may be

denied.

Sec. 353.109 Transfer of function to another agency.

If the function of an employee absent on military duty or

compensable injury is transferred to another agency, and if the

employee would have been transferred with the function under part 351

of this chapter had he or she not been absent, the employee is entitled

to be reinstated to a position in the gaining agency that is equivalent

to the one he or she left. It shall also assume the obligation to

restore the employee in accordance with law and this part.

Sec. 353.110 OPM placement assistance.

(a) Employee returning from military duty.

(1) OPM will provide placement assistance to an employee with

restoration rights in the executive or legislative branch, who either

has competitive status, or if in the legislative branch is able to

acquire competitive status under 5 U.S.C. 3304(c), provided--

(i) The employee's executive branch agency is abolished and its

functions are not transferred, or it is not possible for the agency to

restore the employee, or

(ii) It is not possible for a legislative branch employee to be

restored in the legislative branch.

(2) If OPM determines the individual is qualified for a position in

the executive branch which is either vacant or filled under temporary

appointment, the returning employee will be offered the position.

(b) Employee returning from compensable injury. OPM will provide

placement assistance to an employee with restoration rights in the

executive, legislative, or judicial branches who cannot be placed in

his or her former agency and who either has competitive status or is

eligible to acquire it under 5 U.S.C. 3304(c). If the employee's agency

is abolished and its functions are not transferred, or it is not

possible for the employee to be restored in his or her former agency,

OPM will provide placement assistance by enrolling the employee in

OPM's Priority Placement Program under part 330 of this chapter.

temporary appointment pending establishment of a register (TAPER).

Sec. 353.111 Restoration rights of TAPER employees.

An employee serving in the competitive service under a temporary

appointment pending establishment of a register (TAPER) under

Sec. 316.201 of this chapter (other than an employee serving in a

position classified above GS-15), is entitled to be restored to the

position he or she left or an equivalent one in the same commuting

area.

Subpart B--Military Service

Sec. 353.201 Leaves of absence.

(a) Entitlement.

(1) The following employees are entitled under 38 U.S.C. 4304 to a

leave of absence in connection with military duty:

(i) A member of a Reserve component (Reserve or National Guard) who

performs active duty for training or inactive duty (38 U.S.C. 4304(d)),

(ii) An employee who reports for enlistment, induction or physical

examination (38 U.S.C. 4304(e)).

(2) There is no limitation in law as to the timing or duration of

leaves of absence, nor is there any authority for an agency to deny a

leave of absence. If an agency has concerns about the timing,

frequency, or length of an employee's requests for a leave of absence,

it should contact the commander of the military unit to determine if

the duty can be changed.

(b) Authorization required. To be eligible for a leave of absence,

the employee must be under military orders. Any of the following is

acceptable evidence of orders:

(1) Written military orders,

(2) An inactive duty training or ``drill schedule'' published by

the employee's military command or unit, or

(3) Verbal confirmation of such orders from the employee's military

command or unit or military superior.

employee's work in order to accommodate his or her Reserve obligation,

and may not require the employee to reschedule his or her work in order

to perform military duty on his or her own time.

(d) Return to duty.

(1) An employee on a leave of absence for military duty is required

to report for work at the beginning of the first regularly scheduled

workday following release, rejection for service or completion of

physical examination. If hospitalized incident to training or

examination, the employee is required to report at the beginning of the

first regularly scheduled workday following discharge from

hospitalization, or within 1 year or release from military duty,

whichever is earlier. In all cases, necessary travel time or other

delays beyond the individual's control may extend the reporting date.

An employee who fails to report within these time limits is subject to

normal agency disciplinary procedures related to absences from work.

(2) An employee on a leave of absence returns to the position he or

she left, or if applicable, to the position to which reassigned or

promoted while absent. The employee is entitled to the same seniority,

status, pay and vacation he or she would have had if not absent on

military duty.

(3) An employee returning from a leave of absence has no special

protections against discharge without cause. However, the employee may

not be disadvantaged where vacation leave is concerned. Thus, insofar

as possible, the employee is entitled to have an annual vacation period

of extended leave for rest and recreation approved for the same time as

it would ordinarily have been granted.

Sec. 353.202 Mandatory restoration.

(a) Basic entitlement. An individual returning from military duty

who is entitled to restoration rights under 38 U.S.C. 4301 (inducted)

or 4304 (a), (b), or (c) (enlisted, called to active duty, Reservist

entered on active duty, or Reservist serving basic training), must be

restored as soon as possible after making application, but in no event

later than 30 days after the individual's release from military duty.

(b) Conditions. To be eligible for restoration, the employee must

have left his or her employment for the purpose of entering the

military, must satisfactorily complete his or her period of service,

and apply for restoration--

(1) Within 90 days of release from active duty (or from

hospitalization continuing after discharge for a period of no more than

1 year) in the case of employees returning under 38 U.S.C. 4304 (a) or

(b); and

[[Page 3066]]

(2) Within 31 days of release from active duty (or from

hospitalization incident to the military service, or 1 year after the

employee's scheduled release from military training, whichever is

earlier), in the case of employees returning under 38 U.S.C. 4304(c).

her employment to enter military service, he or she is subject to the

time limits prescribed in 38 U.S.C. 4304 (a) and (b) for purposes of

restoration rights. Generally, these are as follows:

(1) Regular active duty soldiers have 4 years plus 1 additional

year if the additional duty was ``at the request and for the

convenience of the Federal Government.'' (Their orders or DD Form 214

must so state.) Also, in the event of a Presidential call-up such as

Operation Desert Storm, numerous active duty troops in key positions

may be held over beyond their enlistments. This additional duty is

covered because it is ``additional service imposed pursuant to law.''

(2) Reserves and National Guard are covered under 38 U.S.C.

4304(b)(2). Normally, their restoration rights are limited to 4 years.

(They do not get the extra 5th year ``at the request and for the

convenience of the Federal Government.'') To go beyond 4 years, their

service has to be other than for training, it is limited by the time

period that the President is authorized to call up troops (currently

180 days), and, if voluntary, their orders or DD Form 214 must say that

the additional duty was at the request and for the convenience of the

Government.

(3) Mobilization authority.

(i) Since 1978, 10 U.S.C. 673b has authorized the President to call

up as many as 200,000 members of the Selected Reserve for up to 90

days. In 1986, this authority was broadened to allow the President to

extend the call-up for an additional 90 days, if necessary, without

regard to a state of national emergency or war, for the purpose of

augmenting the active component forces for an operational mission.

(ii) The President is also authorized by 10 U.S.C. 673a to call up

as many as one million members of the Ready Reserves for not longer

than 24 months in a national emergency.

(iii) Under 10 U.S.C. 672, with a declaration of war or national

emergency by the Congress, all Reserve components, including Standby

and Retired, could be ordered to active duty for the duration of the

war, plus 6 months.

Sec. 353.203 Physical disqualification.

An individual who is physically disqualified for the former

position or an equivalent one because of disability sustained during

military service shall be placed in the agency in another position for

which qualified that will provide the employee with the same seniority,

status, and pay, or the nearest approximation consistent with the

circumstances in each case.

Sec. 353.204 Retention protection.

(a) While on military duty. An employee with restoration rights

under 38 U.S.C. 4301 or 4304 (a), (b), or (c) may not be demoted or

separated (other than military separation) while on military duty. He

or she is not a ``competing employee'' under Sec. 351.404 of this

chapter. If the employee's position is abolished during such absence,

the agency must reassign the employee to another position of like

seniority, status, and pay. An employee on a leave of absence under 38

U.S.C. 4304 (d) or (e) has no special protections in a reduction in

force.

(b) Upon reemployment. Upon reemployment, an employee with a

restoration right under 38 U.S.C. 4301 or 4304 (a) or (b) may not be

discharged for a period of 1 year except for cause. A member of a

Reserve component returning from an initial period of active duty for

training under 38 U.S.C. 4304(c) may not be discharged for a period of

6 months except for cause. (Reduction in force is not considered ``for

cause.'') Employees returning from a leave of absence under 38 U.S.C.

4304 (d) or (e) have no special protections against discharge.

serving under a temporary appointment pending establishment of a

Sec. 353.205 Prohibition against discrimination.

A person who seeks or holds a position in the Federal Government

may not be denied hiring, retention in employment, or any promotion or

other incident or advantage of employment because of any obligation as

a member of a Reserve component of the Armed Forces.

Subpart C--Compensable Injury

Sec. 353.301 Restoration rights.

(a) Fully recovered within 1 year. An employee who fully recovers

from a compensable injury within 1 year from the date eligibility for

compensation began (or from the time compensable disability recurs if

the recurrence begins after the employee resumes regular full-time

employment with the United States), is entitled to be restored

immediately and unconditionally to his or her former position or an

equivalent one. Although these restoration rights are agencywide, the

employee's basic entitlement is to the former position or equivalent in

the local commuting area the employee left. If a suitable vacancy does

not exist, the employee is entitled to displace an employee occupying a

continuing position under temporary appointment or tenure group III. If

there is no such position in the local commuting area, the agency may

offer the employee a position (as described in this paragraph) in

another location. This paragraph also applies when an injured employee

accepts a lower-graded position in lieu of separation and subsequently

fully recovers. A fully recovered employee is expected to return to

work immediately upon the cessation of compensation.

(b) Fully recovered after 1 year. An employee who was separated

because of a compensable injury and whose full recovery takes longer

than 1 year from the date eligibility for compensation began (or from

the time compensable disability recurs if the recurrence begins after

the injured employee resumes regular full-time employment with the

United States), is entitled to priority consideration, agencywide, for

restoration to the position he or she left or an equivalent one

provided he or she applies for reappointment within 30 days of

cessation of compensation. Priority consideration is accorded by

entering the individual on the agency's reemployment priority list for

the competitive service or reemployment list for the excepted service.

If the individual cannot be placed in the former commuting area, he or

she is entitled to priority consideration for an equivalent position

elsewhere in the agency. (See parts 302 and 330 of this chapter for

more information on how this may be accomplished for the excepted and

competitive services, respectively.) This subpart also applies when an

injured employee accepts a lower-graded position in lieu of separation

and subsequently fully recovers.

disqualified for the former position or equivalent because of a

compensable injury is entitled to be placed in another position for

which qualified that will provide the employee with the same seniority,

status, and pay, or the nearest approximation thereof, consistent with

the circumstances in each case. This right is agencywide and applies

for a period of 1 year from the date eligibility [[Page 3067]] for

compensation begins. After 1 year, the individual is entitled to the

rights accorded individuals who fully or partially recover, as

applicable.

(d) Partially recovered. Agencies must make every effort to

restore, according to the circumstances in each case, an individual who

has partially recovered from a compensable injury and who is able to

return to limited duty. At a minimum, this would mean treating these

employees substantially the same as other handicapped individuals under

the Rehabilitation Act of 1973, as amended. (See 29 U.S.C. 791(b) and

794.) If the individual fully recovers, he or she is entitled to be

considered for the position held at the time of injury, or an

equivalent one. A partially recovered employee is expected to seek

reemployment as soon as he or she is able.

Sec. 353.302 Status upon reemployment.

An individual who is restored following a compensable injury is

generally entitled to be treated as though he or she had never left.

This means that the entire period the employee was receiving

compensation is creditable for purposes of rights and benefits based

upon length of service, including within-grade increases, career

tenure, leave rate accrual, and completion of probation. However, an

injured employee enjoys no special protections in a reduction in force.

Separation by reduction in force or for cause while on compensation

terminates entitlement to credit for the subsequent period the

individual continues to receive compensation, and also means the

individual has no restoration rights.

Subpart D--Appeal Rights

Sec. 353.401 Appeals to the Merit Systems Protection Board.

(a) Except as provided in paragraphs (b) and (c) of this section,

an employee or former employee of an agency in the executive branch

(including the U.S. Postal Service and the Postal Rate Commission) who

is covered by this part may appeal to the MSPB an agency's failure to

restore, improper restoration, or failure to return an employee

following a leave of absence. All appeals are to be submitted in

accordance with MSPB's regulations.

(b) An individual who fully recovers from a compensable injury more

than 1 year after compensation begins may appeal to MSPB as provided

for in parts 302 and 330 of this chapter for excepted and competitive

service employees, respectively.

injury may appeal to MSPB for a determination of whether the agency is

acting arbitrarily and capriciously in denying restoration. Upon

reemployment, a partially recovered employee may also appeal the

agency's failure to credit time spent on compensation for purposes of

rights and benefits based upon length of service.

PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATION

(MISCELLANEOUS)

Subpart A--Motor Vehicle Operators

52. The authority citation for subpart A of part 930 continues to

read as follows:

Authority: 5 U.S.C. 3301, 3320, 7301; 40 U.S.C. 491; E.O. 10577,

3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp.,

p. 306. (Separate authority is listed under Sec. 930.107).

52. In Sec. 930.105, paragraph (a) is revised to read as follows:

Sec. 930.105 Minimum requirements for competitive and excepted service

positions.

(a) An agency may fill motor vehicle operator positions in the

competitive or excepted services by any of the methods normally

authorized for filling positions. Applicants for motor vehicle operator

positions and incidental operators must meet the following requirements

for these positions:

(1) Possess a safe driving record;

(2) Possess a valid State license;

(3) Except as provided in Sec. 930.107, pass a road test; and

(4) Demonstrate that they are medically qualified to operate the

appropriate motor vehicle safely in accordance with the standards and

procedures established in this part.

* * * * *

54. Section 930.106 is revised to read as follows:

Sec. 930.106 Details in the competitive service.

An agency may detail an employee to an operator position in the

competitive service for 30 days or less when the employee possesses a

State license. For details exceeding 30 days, the employee must meet

all the requirements of Sec. 930.105 and any applicable OPM and agency

regulations governing such details.

55. Section 930.108 is revised to read as follows:

Sec. 930.108 Periodic medical evaluation.

At least once every 4 years, each agency will ensure that employees

who operate Government-owned or leased vehicles are medically able to

do so without undue risk to themselves or others. When there is a

question about an employee's ability to operate a motor vehicle safely,

the employee may be referred for a medical examination in accordance

with the provisions of part 339 of this chapter.

56. In Sec. 930.109 paragraph (b) is revised to read as follows:

Sec. 930.109 Periodic review and renewal of authorization.

* * * * *

(b) An agency may renew the employee's authorization only after the

appropriate agency official has determined that the employee is

medically qualified and continues to demonstrate competence to operate

the type of motor vehicle to which assigned based on a continued safe

driving record.

[FR Doc. 95-830 Filed 1-10-95; 3:46 pm]

BILLING CODE 6325-01-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.