Employment in the Senior Executive Service; Promotion and Internal Placement

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 317 and 335

RIN 3206-AH92

Employment in the Senior Executive Service; Promotion and

Internal Placement

AGENCY: Office of Personnel Management.

ACTION: Interim regulations with request for comments.

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

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

regulations to correct existing regulations which are inconsistent with

statutory provisions governing the 120-day moratorium on involuntary

reassignments of career Senior Executive Service (SES) appointees

following the appointment of a new agency head or a new noncareer

immediate supervisor; and to authorize agencies to reinstate SES career

appointees who have competitive service reinstatement eligibility to

career appointments in any competitive service position for which

qualified, including Senior Level (SL) positions.

EFFECTIVE DATE: July 24, 1998.

COMMENTS DUE: August 24, 1998.

ADDRESSES: Send or deliver comments to Ms. K. Joyce Edwards, Assistant

Director for Executive Policy and Services, Office of Executive

Resources, Room 6484, U.S. Office of Personnel Management, 1900 E

Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Mr. Bede Bender (202) 606-1784.

SUPPLEMENTARY INFORMATION:

120-Day Moratorium on Involuntary Reassignments

The law in 5 U.S.C. 3395(e)(1) provides for a 120-day moratorium on

involuntary reassignments of SES career appointees following the

appointment of a new agency head or the career appointee's most

immediate supervisor who is a noncareer appointee and who has the

authority to make an initial appraisal of the career appointee's

performance. The law also provides in Sec. 3395(e)(2) for an exception

to the moratorium by permitting involuntary reassignments during the

120-day period when the reassignment results from a final

unsatisfactory performance rating issued prior to the appointment that

triggered the moratorium. In situations which meet this criterion for

exception, it does not matter if a new agency head or noncareer

supervisor (with authority to make an initial performance appraisal) is

appointed subsequently, i.e., after issuance of a final unsatisfactory

performance rating, nor does it matter if there has been a change in

the agency official responsible for taking the reassignment action (the

language of the current regulation). The reassignment action may

proceed if the conditions for the exception are met.

In instances where there is a change in agency head, it is possible

that career appointees will be subject to more than one moratorium--

which almost certainly will not run concurrently but may overlap to

some degree, i.e., appointment of a new agency head often results in

some turnover among noncareer appointees. When applying the regulation

in these instances, it is important to look at the starting date of

each moratorium independently, in relation to the date on which the

unsatisfactory rating was issued. For example, if a final rating of

unsatisfactory is issued after the appointment of a new agency head,

the moratorium initiated by that appointment must be allowed to run its

course before any involuntary reassignment action can be effected. If a

new noncareer supervisor is appointed after the new agency head, and

also after the issuance of the unsatisfactory rating (i.e., when the

rating is issued between the appointment of the new agency head and the

new noncareer supervisor), then the second moratorium (i.e., the

moratorium triggered by the appointment of the new noncareer

supervisor) does not apply to an involuntary reassignment resulting

from the unsatisfactory rating.

Conversion From Career SES to Career SL Appointment

Senior Level (SL) positions established under 5 CFR Part 319 are in

the competitive service and are covered by OPM regulations governing

the competitive service generally. Currently, under 5 CFR

335.103(c)(1)(vi), agencies must follow competitive procedures in

agency merit promotion plans in order to reinstate a person to a

permanent or temporary position at a higher grade or with more

promotion potential than a position previously held on a permanent

basis in the competitive service. This means that career SES members

may be reinstated to competitive service positions only at the same

grade or pay level as the highest position they held previously in the

competitive service.

By law, SES and SL positions are above the GS-15 level. In nearly

all cases, career SES appointees have already competed at least

Governmentwide. This regulatory change will recognize that fact by

permitting reinstatement of career SES appointees to competitive

service positions above the GS-15 level.

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 for the following

reasons: (1) The purpose of the interim regulations pertaining to the

120-day moratorium on involuntary reassignments is to correct existing

regulations which are inconsistent with statutory provisions governing

the involuntary reassignment of career Senior Executive Service

appointees. Because this change is taken directly from statute, public

comment is unnecessary. (2) The provision pertaining to conversion of

SES career to Senior Level career appointments was originally

incorporated in proposed Promotion and Internal Placement regulations

published in the Federal Register on February 20, 1996, in Volume 61,

Number 34, page 6327. No comments were received pertaining to the

proposed regulatory change.

Regulatory Flexibility Act

I certify that this regulation will not have a significant impact

on a substantial number of small entities

[[Page 34258]]

because it pertains only to Federal agencies and employees.

Executive Order 12866, Regulatory Review

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

in accordance with Executive Order 12866.

List of Subjects in 5 CFR Parts 317 and 335

Government employees.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending 5 CFR part 317 as follows:

PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE

1. The authority citation for part 317 continues to read as

follows:

Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3397, 3593, and

3595.

2. In Sec. 317.901, the text in paragraph (c) and (c)(1) is

republished for the convenience of the reader, paragraph (c)(2) is

revised to read as follows:

Sec. 317.901 Reassignments.

* * * * *

(c) A career appointee may not be involuntarily reassigned within

120 days after the appointment of the head of an agency, or within 120

days after the appointment of the career appointee's most immediate

supervisor who is a noncareer appointee and who has the authority to

make an initial appraisal of the career appointee's performance under

subpart C of part 430 of this chapter.

(1) In this paragraph--

(i) Head of an agency means the head of an executive or military

department or the head of an independent establishment.

(ii) Noncareer appointee includes an SES noncareer or limited

appointee, an appointee in a position filled by Schedule C, or an

appointee in an Executive Schedule or equivalent position that is not

required to be filled competitively.

(2) These restrictions do not apply to the involuntary reassignment

of a career appointee under 5 U.S.C. 4314(b)(3) based on a final

performance rating of ``Unsatisfactory'' that was issued before the

appointment of a new agency head or a new noncareer supervisor as

defined in paragraph (c)(1) of this section. If a moratorium is already

underway at the time the final rating is issued, then that moratorium

must be completed before the reassignment action can be effected.

PART 335--PROMOTION AND INTERNAL PLACEMENT

2. The authority citation for part 335 continues to read as

follows:

Authority: 5 U.S.C. 3301, 3302, 3330, and E.O. 10577 (3 CFR

1957-58 Comp., p. 218).

3. In Sec. 335.103(c)(3) the text is republished for the

convenience of the reader, a new paragraph (c)(3)(vii) is added to read

as follows.

Sec. 335.103 Agency Promotion Programs.

* * * * *

(c) * * *

(3) Discretionary actions. Agencies may at their discretion except

the following actions from competitive procedures of this section:

* * * * *

(vii) Appointments of career SES appointees with competitive

service reinstatement eligibility to any position for which they

qualify in the competitive service at any grade or salary level,

including Senior-Level positions established under 5 CFR Part 319--

Employment in Senior-Level and Scientific and Professional positions.

[FR Doc. 98-16825 Filed 6-23-98; 8:45 am]

BILLING CODE 6325-01-P