Promotion and Internal Placement

 
CONTENT
Federal Register, Volume 84 Issue 247 (Thursday, December 26, 2019)
[Federal Register Volume 84, Number 247 (Thursday, December 26, 2019)]
[Proposed Rules]
[Pages 70906-70908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27715]
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Proposed Rules
                                                Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 247 / Thursday, December 26, 2019 /
Proposed Rules
[[Page 70906]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 335
RIN 3206-AN77
Promotion and Internal Placement
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing
regulations to give agencies the discretion to reinstate certain former
Federal employees without competition to positions at any grade level
for which the individual is qualified. Agencies will have greater
flexibility in recruiting back to Government service former Federal
employees who have developed enhanced or higher-level skill-sets than
they had when they left government. Individuals seeking to rejoin the
Federal workforce may do so more easily and at grade levels
commensurate with the skills and experience they actually possess (and
be compensated at such grade levels).
DATES: Comments must be received on or before February 24, 2020.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by any
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for sending comments.
     Email: [email protected]. Include the docket number or RIN in
the subject line of the message.
    Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Please arrange and identify
your comments on the regulatory text by subpart and section number; if
your comments relate to the supplementary information, please refer to
the heading and page number. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Comments received after the close of the comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. Before acting on this proposal, OPM will
consider all comments we receive on or before the closing date for
comments. Changes to this proposal may be made in light of the comments
we receive.
FOR FURTHER INFORMATION CONTACT: Michelle Glynn, Telephone: 202-606-
1571, Fax: 202-606-2329, TDD: 202-418-3134, or email:
[email protected].
SUPPLEMENTARY INFORMATION:
Summary of the Proposed Changes
    The U.S. Office of Personnel Management (OPM) is exercising its
authority under 5 U.S.C. 3301 and 3302 in proposing to revise part 335,
title 5, Code of Federal Regulations (CFR), to change the criteria for
how an agency may reinstate certain former Federal employees to a
position in the competitive service. Under current rules, an agency may
reinstate an individual, without competition, only to a position at a
grade level that is no higher than the grade level of a position the
individual held on a permanent basis in the competitive service.
Reinstatement to a higher-graded position, or to a position with
greater promotion potential, requires competition under 5 CFR part 335
Promotion and Internal Placement.
    Oftentimes, when an individual leaves Federal service, he or she
acquires skills and/or experience that may qualify the individual for a
position at a higher grade level than the one the individual held prior
to leaving government. The proposed rules place these reinstatement
actions under discretionary actions at 5 CFR 335.103(c)(3). The
proposed rules allow an agency to reinstate a former career or career-
conditional employee without competition, and regardless of the
promotion potential, to a position at a grade level higher than that
previously held by that individual to provide greater flexibility to
agencies when they need to reinstate a former Federal employee. The
proposed changes will benefit both agencies as well as individuals
seeking to reenter the Federal workforce as the proposed rules seeks to
encourage individuals who have gained additional skills and experiences
to reenter the Federal workforce at grade levels equal to the grade
levels they actually qualify for, not for grade levels they previously
qualified for. Any restriction on the promotion potential of the
position may be a disincentive to attracting needed talent with the
desired skills and/or experience. In order to qualify for this type of
reinstatement the individual must meet the following criteria:
    (1) Been voluntarily separated from his or her most recent career
or career-conditional appointment for at least 1 year, and
    (2) Received a rating of record for his or her most recent career
or career-conditional position of at least Fully Successful (or
equivalent).
    OPM is proposing that individuals who voluntarily separate must
wait 1 year to be eligible for a higher-graded position under this
authority in order to provide consistency with the general
qualification requirements for advancement to a higher grade. OPM's
government-wide qualification standards require that competitive
service employees have 1 year of specialized experience before being
promoted to the next highest grade level. The proposed 1-year
requirement will prevent situations in which employees seeking a
promotion quit and get reinstated to a higher-graded position (in
essence a promotion) prior to meeting the specialized experience
requirement. Thus, the proposed rules benefit both Federal agencies and
former Federal employees seeking reemployment with the government at a
level commensurate with each individual's actual skill and/or
experience level, while preserving a measure of fairness with respect
to current employees.
    OPM is proposing that individuals who did not receive a rating of
record for his or her most recent career or career-conditional position
of at least Fully Successful (or equivalent) are not eligible for
reinstatement without competition under this rule because if the
individual was not performing to expectations at the time s/he left
Federal service, that rationale for liberalizing the rules for re-entry
would not be present, and we would want agencies to put the candidate
through a more rigorous
[[Page 70907]]
process to accurately evaluate current capabilities before hiring the
individual again. An individual whose most recent evaluation was less
than Fully Successful would have been headed for potential demotion or
termination if s/he had remained.
    For individuals who resigned and did not wait 1 year or more before
applying for reinstatement, or for individuals who did not receive a
rating of record for his or her most recent career or career-
conditional position of at least Fully Successful (or equivalent), the
proposed rule will require competition for higher graded positions, or
positions with greater promotion potential. However, the individuals
remain eligible for reinstatement without competition for positions
with no higher grade or with no more promotion potential than a
position previously held by the individual on a permanent basis in the
competitive service.
    The specific proposed changes are as follows:
    OPM is proposing to modify current Sec.  335.103(c)(1)(vi), by
requiring competition under this part for an individual seeking
reinstatement, within 1 calendar year from the date of his or her
separation, to a position at a higher grade level or promotion
potential than previously held, or for an individual who did not
receive a rating of record of Fully Successful (or equivalent).
    New paragraph Sec.  335.103(c)(3)(viii) creates as a discretionary
action that is not subject to competitive procedures reinstatement to a
position at a higher grade level or promotion potential than previously
held provided the individual resigned 1 year or more prior to the date
he or she applies for reinstatement, and that the individual received a
rating of record for his or her most recent career or career-
conditional position of at least Fully Successful (or equivalent).
    OPM is proposing these changes under Civil Service Rules II and
VII, codified at 5 CFR parts 2 and 7, to establish and administer a
system that provides for career appointments for former employees
eligible for career appointment upon reinstatement.
Regulatory Flexibility Act
    I certify that this regulation will not have a significant impact
on a substantial number of small entities because it applies only to
Federal agencies and employees.
E.O. 13563 and E.O. 12866, Regulatory Review
    Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' under Executive Order 12866 and has been reviewed by OMB.
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
    This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this
proposed rule is expected to be related to agency organization,
management, or personnel.
E.O. 13132, Federalism
    This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988, Civil Justice Reform
    This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
    This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
    This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of nonagency parties and, accordingly, is not a ``rule'' as
that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Paperwork Reduction Act
    This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 335
    Government employees.
Office of Personnel Management
Alexys Stanley,
 Regulatory Affairs Analyst.
    Accordingly, OPM proposed to amend 5 CFR part 335 as follows:
* * * * *
PART 335--PROMOTION AND INTERNAL PLACEMENT
0
 1. The authority citation for part 335 continues to read as follows:
    Authority:  5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577,
E.O. 11478, 3 CFR 1966-1970, Comp., page 803, unless otherwise
noted, E.O. 13087; and E.O. 13152, 3 CFR 19554-58 Comp., p.218; 5
U.S.C. 3304(f), and Pub. L. 106-117.
Subpart A--General Provisions
0
 2. In Sec.  335.103, revise paragraph (c)(1)(vi) and add paragraph
(c)(3)(viii) to read as follows:
Sec.  335.103  Agency promotion programs.
* * * * *
    (c) * * *
    (1) * * *
    (vi) Reinstatement 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 if the individual did
not wait 1 year or more after separating from Federal employment before
applying for reinstatement, or did not receive a rating of record for
his or her most recent career or career-conditional position of at
least Fully Successful (or equivalent).
* * * * *
    (viii) Reinstatement in accordance with 5 CFR part 315 to any
position in the competitive service for which the individual is
qualified at a higher grade level or with more promotion potential than
a career or career-conditional position previously held by the
individual; provided,--the individual has been voluntarily separated
for at least 1 year before being reinstated, and the individual must
have received a rating of record for his or her most recent career or
career-conditional
[[Page 70908]]
position of at least Fully Successful (or equivalent).
* * * * *
[FR Doc. 2019-27715 Filed 12-23-19; 8:45 am]
BILLING CODE 6325-39-P