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

60 FR 55173Federal Register, Volume 60 Issue 209 (Monday, October 30, 1995) [Federal Register Volume 60, Number 209 (Monday, October 30, 1995)] [Rules and Regulations] [Pages 55173-55174] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 95-26851] ======================================================================== Rules and Regulations Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== Federal Register / Vol. 60, No. 209 / Monday, October 30, 1995 / Rules and Regulations [[Page 55173]] OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 213 RIN 3206-AH15 Appointment of Nonstatus Employees Entitled to Placement in a Different Agency Upon Restoration to Duty From Uniformed Service AGENCY: Office of Personnel Management. ACTION: Interim regulations with request for comments. -----------------------------------------------------------------------

60 FR 55173SUMMARY: The Office of Personnel Management (OPM) is issuing interim regulations to permit Schedule A appointments of certain excepted service employees who are entitled to placement in a different agency if their original employing agency cannot reemploy them following uniformed service. These regulations implement the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, which mandates such placement. Interim regulations setting out the categories of employees who are eligible for this assistance and OPM's responsibility for placing them were published for comment on September 1, 1995 (60 FR 45650). DATES: Effective: October 30, 1995. Comments must be received on or before December 29, 1995. ADDRESSES: Send or deliver comments to Leonard R. Klein, Associate Director for Employment, U.S. Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415. FOR FURTHER INFORMATION CONTACT: Raleigh M. Neville, (202) 606-0830.

60 FR 55173SUPPLEMENTARY INFORMATION: USERRA clarifies, expands, and strengthens the restoration rights of employees who perform active duty in a uniformed service. Among the changes are a requirement that OPM place in the executive branch certain categories of employees when their former agencies determine that it is ``impossible or unreasonable'' to reemploy them. The employees entitled to special placement assistance are: (1) Executive branch employees (including those serving under excepted or time-limited appointments) whose agencies no longer exist and the functions have not been transferred, or it is otherwise impossible or unreasonable to reemploy them; (2) Legislative and judicial branch employees; (3) National Guard Technicians; and (4) Employees of the intelligence agencies. Placement in executive branch positions frequently requires that an individual have competitive civil service status or be hired through competitive examination. Executive branch employees who left career or career-conditional appointments or who had established reinstatement eligibility based on prior service are eligible for noncompetitive placement in competitive service positions. Executive branch employees who left temporary or term appointments are generally eligible for noncompetitive reappointment to complete any unexpired portion of those appointments. The remaining employees entitled to placement, however, have no status that would permit their noncompetitive appointment in the competitive service. Under USERRA, the employees are entitled to placement in positions that are equivalent in terms of pay, grade, and status to the positions they left. Since the employees covered by this interim regulation left positions filled under excepted appointment, it is appropriate that they be placed in the executive branch under an excepted appointment. Such appointment would permit the restored employees to continue serving indefinitely (or up to any time limit of their original appointment) and to be promoted or reassigned to other positions in their new agency, but would not give them competitive status they could not have earned in their original positions. Excepted appointing authority already exists under Sec. 213.3102(j) for National Guard Technicians who are applying for or receiving a civil service annuity based on a disability that disqualifies them from membership in the National Guard or from holding the military grade required as a condition of their Technician employment. These interim regulations expand that authority to cover nonstatus employees entitled to placement under USERRA, with one exception. The Schedule A authority does not cover employees who held Schedule C appointments or appointments under statutory authorities that specified the employees served at the discretion, will, or pleasure of the agency. We find that such at-will employees are not entitled to placement in other agencies if their original employing agency declines to reemploy them. Since their original appointments could be terminated at any time, their positions afforded ``no reasonable expectation that employment will continue indefinitely or for a reasonable period,'' as required by USERRA.

60 FR 55173Waiver of Notice of Proposed Rulemaking Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists for waiving the general notice of proposed rulemaking, because the statutory provisions for reemployment in other agencies became effective on December 12, 1994. The Schedule A appointing authority set out in these interim regulations is needed for practical implementation of that law. Regulatory Flexibility Act I certify that this regulation will not have a significant impact on a substantial number of small entities because it pertains only to Federal employees and agencies. List of Subjects in 5 CFR Part 213 Government employees, Reporting and recordkeeping requirements. Office of Personnel Management. James B. King, Director. Accordingly, OPM is amending part 213, as follows: PART 213--EXCEPTED SERVICE 1. The authority citation for part 213 is revised to read as follows: Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103; Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h), and 8456; E.O. 12364, [[Page 55174]] 47 FR 22931, 3 CFR 1982 Comp., p. 185; and Pub. L. 103-353. 2. In Sec. 213.3102, paragraph (j) is revised to read as follows: Sec. 213.3102 Entire executive civil service.

60 FR 55173* * * * * (j) Positions filled by current or former Federal employees eligible for placement under special statutory provisions. Appointments under this authority are subject to the following conditions. (1) Eligible employees. (i) Persons previously employed as National Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement under Sec. 353.110 of this chapter, or who are applying for or receiving an annuity under the provisions of 5 U.S.C. 8337(h) or 8456 by reason of a disability that disqualifies them from membership in the National Guard or from holding the military grade required as a condition of their National Guard employment. (ii) Executive branch employees (other than employees of intelligence agencies) who are entitled to placement under Sec. 353.110 but who are not eligible for reinstatement or noncompetitive appointment under the provisions of part 315 of this chapter. (iii) Legislative and judicial branch employees and employees of the intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are entitled to placement under Sec. 353.110. (2) Employees excluded. Employees who were last employed in Schedule C or under a statutory authority that specified the employee served at the discretion, will, or pleasure of the agency are not eligible for appointment under this authority. (3) Position to which appointed. Employees who are entitled to placement under Sec. 353.110 will be appointed to a position that OPM determines is equivalent in pay and grade to the one the individual left, unless the individual elects to be placed in a position of lower grade or pay. National Guard Technicians whose eligibility is based upon a disability may be appointed at the same grade, or equivalent, as their National Guard Technician position or at any lower grade for which they are available. (4) Conditions of appointment. (i) Individuals whose placement eligibility is based on an appointment without time limit will receive appointments without time limit under this authority. These appointees may be reassigned, promoted, or demoted to any position within the same agency for which they qualify. (ii) Individuals who are eligible for placement under Sec. 353.110 based on a time-limited appointment will be given appointments for a time period equal to the unexpired portion of their previous appointment. * * * * * [FR Doc. 95-26851 Filed 10-27-95; 8:45 am] BILLING CODE 6325-01-M