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: Final regulations.

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

regulations that adopt without change interim regulations that

corrected previous regulations which were inconsistent with statutory

provisions that govern 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. These regulations also authorize agencies to

reinstate SES career appointees who have competitive service

reinstatement eligibility to career appointments in competitive service

positions for which they qualify, including Senior Level (SL)

positions.

EFFECTIVE DATE: December 7, 1998.

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

SUPPLEMENTARY INFORMATION:

120-Day Moratorium on Involuntary Reassignments

On June 24, 1998, the Office of Personnel Management (OPM)

published interim regulations (63 FR 34257) to correct existing

regulations that were inconsistent with statutory provisions governing

the 120-day moratorium on involuntary reassignments of Senior Executive

Service (SES) career appointees. 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., the 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

The interim regulations published on June 24, 1998, also expanded

the eligibility of SES career appointees for reinstatement to Senior

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

in the competitive service and are covered by OPM regulations governing

the competitive service generally. Formerly, under 5 CFR

335.103(c)(1)(vi), agencies were required to follow competitive

procedures in agency merit promotion plans in order to reinstate a

person to a permanent or a 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 meant that career SES members

could 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 recognized that fact by

permitting reinstatement of career SES appointees to competitive

service positions above the GS-15 level.

The 30-day comment period expired on August 24, 1998. OPM did not

receive any comments during the comment period. Therefore, the interim

rule is being adopted as a final rule.

Regulatory Flexibility Act

I certify that these regulations will not have a significant impact

on a substantial number of small entities because they will apply 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, under the authority in 5 U.S.C. 3392, 3393, 3393a,

3395, 3397, 3593, and 3595, the interim regulations

[[Page 59876]]

amending 5 CFR Parts 317 and 335 (63 FR 34257) published on June 24,

1998, are adopted as final without any changes.

[FR Doc. 98-29768 Filed 11-5-98; 8:45 am]

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