Employment in the Senior Executive Service; Promotion and Internal Placement

63 FR 34257Federal Register, Volume 63 Issue 121 (Wednesday, June 24, 1998) [Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)] [Rules and Regulations] [Pages 34257-34258] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 98-16825] ======================================================================== 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. 63, No. 121 / Wednesday, June 24, 1998 / Rules and Regulations [[Page 34257]] ======================================================================= ----------------------------------------------------------------------- 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. -----------------------------------------------------------------------

63 FR 34257SUMMARY: 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

63 FR 34257The 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.

63 FR 34257Conversion 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

63 FR 34257Pursuant 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.

63 FR 34257* * * * * (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.

63 FR 34257* * * * * (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