Employment in the Senior Executive Service Promotion and Internal Placement

63 FR 59875Federal Register, Volume 63 Issue 215 (Friday, November 6, 1998) [Federal Register Volume 63, Number 215 (Friday, November 6, 1998)] [Rules and Regulations] [Pages 59875-59876] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 98-29768] ======================================================================== 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. 215 / Friday, November 6, 1998 / Rules and Regulations [[Page 59875]] ----------------------------------------------------------------------- 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. -----------------------------------------------------------------------

63 FR 59875SUMMARY: 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

63 FR 59875On 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.

63 FR 59875Conversion 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.

63 FR 59875U.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] BILLING CODE 6325-01-P