Appointment of Current and Former Land Management Employees, 84685-84690 [2023-26723]
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84685
Rules and Regulations
Federal Register
Vol. 88, No. 233
Wednesday, December 6, 2023
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.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 315 and 335
RIN 3206–AN28
Appointment of Current and Former
Land Management Employees
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
The Office of Personnel
Management (OPM) is issuing final
regulations to allow certain current and
former employees of a land management
agency to compete for a permanent
position at such agency, when the
agency is accepting applications from
individuals within the agency’s
workforce under promotion and internal
placement (i.e., merit promotion)
procedures; or at any hiring agency
when the agency is accepting
applications from individuals outside
its own workforce under merit
promotion procedures. The intended
effect of this hiring authority is to
provide a pathway for current and
former land management employees
currently serving (or served) under timelimited appointments, who have not
received a permanent appointment in
the competitive service, to compete for
vacant permanent Federal positions in
the competitive service under merit
promotion procedures.
DATES: This rule is effective January 5,
2024.
FOR FURTHER INFORMATION CONTACT:
Michelle T. Glynn, (202) 606–1571, by
TDD: 1–800–877–8339, or email:
michelle.glynn@opm.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
Under most circumstances,
individuals who are serving (or served)
under time-limited appointments are
not eligible to compete under merit
promotion procedures for permanent
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positions in the competitive service.
Generally, positions filled under merit
promotion procedures are only open to
current career or career conditional
employees to include certain veterans
who are eligible under the Veterans
Employment Opportunities Act (VEOA)
of 1998, as amended. Because timelimited employees are not career or
career conditional employees, they may
never be considered for permanent
positions under merit promotion
procedures. To remedy this situation,
Congress enacted the Land Management
Workforce Flexibility Act (‘‘the Act’’)
under 5 U.S.C. 9601 and 9602 to better
assist certain time-limited employees in
Federal land management agencies to
compete for vacant permanent positions
in the competitive service under merit
promotion procedures.
To implement the Act, OPM
published proposed regulations in the
Federal Register at 85 FR 29348 on May
15, 2020. Specifically, OPM proposed to
allow certain current and former land
management employees who are serving
(or served) under time-limited
appointments and have not received a
permanent position in the Federal
government to compete for permanent
positions under merit promotion
procedures in 5 CFR parts 316 and 335.
After considering the comments
received, OPM is finalizing the
proposed amendments with
modifications as discussed in the next
section. OPM is also adopting several
non-substantive modifications from the
proposed to the regulatory text to
improve clarity.
Comments on the Proposed Rule
OPM received five comments on the
proposed rule: four from individuals
and one from a Federal employee union.
One individual commented that the rule
does not address whether a land
management eligible with competitive
status is subject to time-in-grade (TIG)
restrictions when using this authority.
The commenter also asked whether a
land management eligible who already
held a permanent job could use his or
her eligibility multiple times when
applying for positions under promotion
and internal placement (i.e., merit
promotion) procedures. The commenter
suggested that OPM state clearly in the
regulation whether these situations are
allowed.
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Agencies cannot use this authority to
circumvent TIG requirements. TIG
exists to prevent excessively rapid
promotions in competitive service
General Schedule positions and to
protect competitive principles. In
accordance with 5 CFR 300.603, TIG
applies to an individual who served on
a non-temporary appointment within
the 52-week period prior to
advancement. Based on the scenario
described above, the permanent
employee, who was formerly a timelimited employee, would be subject to
time-in-grade if seeking a higher-graded
position. In accordance with 5 U.S.C.
9602, eligibility under these regulations
applies to certain individuals serving, or
who served, under a time-limited
appointment and have not received a
permanent position in the Federal
government. OPM will address this and
other scenarios pertaining to TIG
requirements in supplemental guidance.
One individual expressed concern
over the hiring practices at the Bureau
of Land Management (BLM) and
dissatisfaction with the current BLM
leadership. This individual did not have
any objections to or suggestions on the
proposed regulation. OPM will not
address this comment because it is
beyond the scope of the proposed
regulations.
Two individuals provided positive
comments and expressed strong support
for the proposed regulation. A retired
National Park Ranger stated that he
strongly supports the proposed
regulation because it greatly benefits the
National Park Service in the recruitment
and retention of new and diverse
employees. Another individual stated
that this regulation will help temporary
employees find full-time permanent
employment and hiring managers to
attract experienced workers. OPM
appreciates this support.
One individual suggested that OPM
amends the proposed rule to allow
employees who previously served on a
temporary appointment have that time
credited toward the probationary or trial
period. OPM is not adopting this
suggestion because it is not necessary.
The governing statute at 5 U.S.C.
9602(c)(2) states that individuals
appointed under this authority acquire
competitive status upon appointment.
Competitive status is acquired after
completion of a probationary period in
accordance with 5 CFR 212.301. The
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statute deems a land management
eligible who is selected to have
completed a probationary period upon
appointment under this authority. The
proposed regulation at 5 CFR 315.613(d)
states this.
The same individual suggested that
OPM modifies proposed § 335.107 to
make clear that a land management
eligible may compete for a permanent
position at any agency when the
position is being filled under merit
promotion procedures. OPM is not
adopting this suggestion. The Act at 5
U.S.C. 9602 established the conditions
and criteria under which certain current
or former land management employees
may compete for a permanent position
under merit promotion procedures. The
suggested language is not in accordance
with this statute. The language in the
proposed rule is consistent with the
governing statute and reflects the
conditions under which a land
management employee may compete
when a job is advertised under merit
promotion procedures and open to
candidates from outside an agency’s
workforce or under merit promotion
procedures and open to candidates from
within an agency’s workforce.
A Federal employee union
commented that its primary concern is
to ensure the regulation and
supplementary information reflect the
statutory requirement that agencies
must allow all land management
eligibles to compete for vacancies filled
under their merit promotion procedures.
This Federal employee union submitted
several specific comments that are
discussed throughout the remainder of
the Supplementary Information section
of this preamble.
Federal Employee Union Comments on
the Supplementary Information of the
Proposed Rule
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The employee union stated:
The primary thrust of the statute, as
expressed in its first sentence, is to establish
that a land management eligible ‘‘is eligible
to compete (emphasis added).’’ [sic] It is
therefore mandatory that agencies consider
land management eligible applicants.
This is not reflected in the first sentence
in the supplementary information under
‘‘Description of the Flexibility (p. 29349)’’
which states, in relevant part, ‘‘. . . an
agency may use this authority to allow a
current or former land management eligible
. . . to compete for a permanent
position. . .’’ (emphasis added). The term
‘‘may’’ gives agencies discretion to ‘‘allow’’
or to not allow land management eligibles to
compete. In fact, the statute is prescriptive in
this regard, in that it states that land
management eligibles are ‘‘eligible to
compete.’’ It is not within the authority of an
agency to remove that which Congress has
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bestowed. We recommend this be revised to
state ‘‘. . .under this authority, an agency
must to allow [sic] a current or former land
management eligible. . . to compete for a
permanent position . . .’’ (emphasis in
original.)
The employee union also asserted the
sentence quoted above (‘‘. . . an agency
may use this authority to allow a current
or former land management eligible . . .
to compete for a permanent position
. . .’’ (emphasis in original)) had to be
‘‘a simple drafting error’’ because in the
same section the supplementary
information stated: ‘‘an agency must
consider a land management eligible
(also under ‘‘Description of the
Flexibility, ’’ p. 29349).’’ Nevertheless,
the presence of the first sentence
remained ‘‘problematic as it introduces
ambiguity that could lead to flawed
implementation.’’
OPM thanks the Federal employee
union for the comment. No modification
to the regulatory text is needed as it
already reflects that agencies have the
discretion whether to fill their positions
under promotion and internal
placement (i.e., merit promotion)
procedures (5 CFR part 335) or through
another hiring authority. OPM further
notes that the difference in the
sentences was not a drafting error, but
rather reflect different points in the
hiring process. OPM’s use of ‘‘must’’ in
the second reference under ‘‘Description
of the flexibility’’ modifies the phrase
‘‘consider a land management eligible
. . .’’ It relates to when a land
management eligible applies for a
permanent position. That is, once an
agency makes the determination to use
its discretion to advertise for a
permanent position under Promotion
and Internal Placement procedures at 5
CFR 335, certain land management
eligibles must be considered.
The employee union further objected
to the phrase—‘‘. . . will be expected to
consider land management eligibles
. . . (under ‘‘Land Management
Workforce Flexibility Act, as
Amended,’’ [sic] p. 29349)’’ in two
places because that phrase did not
create requirements and was not a term
of art. In the alternative, the employee
union again recommended revising the
language ‘‘to clearly articulate the
statutory requirement that agencies
must to consider [sic] land management
eligibles.’’
OPM agrees and clarifies that agencies
who use their discretion to hire for
positions under proposed parts 315 and
335 must consider eligible land
management applicants who apply for
permanent positions.
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Federal Employee Union Comments on
the Regulatory Text at § 335.107
The employee union recommended
revising the language at § 335.107 to
make it clear that land management
eligibles are entitled to compete for
permanent positions. It asserted ‘‘[t]he
statement that they ‘may compete’ is
not, in our view, sufficiently
prescriptive in this regard.’’
OPM does not believe this change is
necessary because ‘may’ and ‘are
entitled’ have the same meaning in this
context. The law does not require
individuals to compete, it allows them
to, hence our use of ‘‘may.’’ Further, this
formulation parallels language currently
in § 335.106 pertaining to individuals
eligible under the Veterans Employment
Opportunities Act of 1998, as amended.
We retained ‘‘may compete’’ for
consistency in part 335.
The employee union further
commented that the proposed § 335.107,
‘‘Special selection procedures for
certain land management eligibles
under merit promotion’’ (emphasis
added) is problematic because it implies
some but not all land management
eligibles are eligible to compete for
permanent positions. The employee
union added ‘‘In fact, the section
applies to all land management
eligibles, as defined in the statute and
in the proposed regulation, not only to
certain ones . . . [and] could lead
practitioners to wrongfully exclude
subsets of land management eligibles.’’
The employee union recommended
deleting the word ‘‘certain’’ from the
heading.
OPM notes this section applies only
to those land management employees
who meet the eligibility requirements of
the statute (i.e., current and former timelimited land management employees).
OPM agrees, however, the original title
may cause confusion by suggesting
greater limitations beyond meeting the
eligibility requirements. Consequently,
OPM has revised the section heading for
proposed § 335.107 to read, ‘‘§ 335.107.
Special selection procedures for land
management eligibles under merit
promotion.’’
The employee union further stated
that § 335.107 should be revised to
reflect that the section was not about
selection procedures and the Act
established an ‘‘entitlement to
compete.’’ Consequently, it
recommended changing the heading to
‘‘Entitlement of land management
eligibles to compete for permanent
positions under merit promotion.’’
OPM disagrees with this comment.
This section is about selection
procedures, as it encompasses eligibility
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for selection as well as how selected
individuals will be appointed (i.e.,
given a career or career-conditional
appointment in accordance with 5 CFR
315.613). This formulation parallels
language currently in § 335.106
pertaining to individuals eligible under
the Veterans Employment Opportunities
Act of 1998, as amended. We retained
‘‘selection procedures’’ for consistency
in part 335.
The employee union disagrees with
the phrase ‘‘if otherwise qualified’’ in
the regulatory language at § 335.107 and
states the phrase suggests some but not
all land management employees are
eligible. The employee union further
states that the statute and the proposed
definition at § 315.613(b)(3) makes all
land management employees eligible to
compete for a permanent position and
fears it could lead human resources
specialists to wrongfully exclude
subsets of eligible land management
employees. The employee union
recommends replacing ‘‘if otherwise
qualified’’ with ‘‘if they properly apply
and otherwise meet qualifications for
the position.’’
OPM is not adopting this suggestion.
The phrase ‘‘if otherwise qualified’’
describes who may compete under merit
promotion procedures in part 335 and
entails more general considerations,
such as whether an applicant meets the
qualifications for the position being
filled, satisfies any applicable time-ingrade requirements, etc.
The employee union also provided a
list of additional recommended edits to
the proposed language at § 335.107 as
follows:
1. ‘‘There is a spurious close parenthesis in
the parent phrase.’’
OPM agrees and removed the
extraneous parenthesis in § 335.107.
2. ‘‘As written, ‘compete’ is under (a) and
therefore does not apply to (b), leaving that
which a land management eligible may do
under the circumstances described under (b)
unspecified. ‘Compete’ should be the last
word of the parent phrase, not the first word
under (a).’’
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OPM agrees and has revised the text
in § 335.107 to the following: ‘‘. . . may
compete, if otherwise qualified:’’
3. ‘‘As written, the phrase ‘‘in accordance
with § 315.613’’ applies only to (b). It should
apply to both (a) and (b) and therefore should
be moved to the parent phrase.’’
4. ‘‘As written, it is specified that a land
management eligible selected to such a
position is given a career or careerconditional appointment only in (b), but not
in (a). This requirement exists for both.’’
OPM agrees with both comments
immediately above and has modified
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§ 335.107(a) to include similar language
to what appears in paragraph (b).
5. ‘‘As written, it is specified that a
permanent position subject to the
requirements of the statute are in the
competitive service in (a), but not in (b). This
requirement exists for both.’’
OPM agrees and has revised the text
by removing the reference to ‘‘in the
competitive service’’ at § 335.107(a).
The reference to the ‘‘competitive
service’’ at § 335.107(a) is superfluous
because, by definition, merit promotion
procedures can only be used to fill
positions in the competitive service. We
also revised the text at § 335.107(b) to
coincide. Further, the sentence added to
§ 315.613(a) based on earlier comments
notes the types of appointments
available, which also are only available
in the competitive service.
6. ‘‘As written, the use of the conjunction
‘or’ at the end of (a) would mean a land
management eligible could compete under (a)
or under (b), but not both. In fact, a land
management eligible is not precluded from,
for example, applying for a position under (a)
by virtue of having applied for one under (b).
The appropriate conjunction for this
circumstance is ‘and.’
OPM is not adopting the suggestion to
replace ‘‘or’’ with ‘‘and’’ between
§ 335.107(a) and (b). OPM’s use of ‘‘or’’
conveys that a land management eligible
may compete in either of two instances:
if a job is advertised under merit
promotion procedures outside the
agency’s workforce, or if a job is
advertised under merit promotion
procedures within the agency’s
workforce. The use of ‘‘and’’ may
confuse readers to think a land
management eligible may only apply
when a job is advertised both ways.
7. ‘‘The statement ‘A land management
eligible so selected will be given a career or
career-conditional appointment’ does not go
to the point of the section, the entitlement of
land management eligibles to compete for
permanent positions. It is one of several
aspects that relate to selection. As such, it is
handled under the section dealing with these
matters, at § 315.613(e). It is not needed here.
OPM notes that the employee union
also commented above at #4 that this
sentence only appeared in § 335.107(b)
but also applied to § 335.107(a). OPM
accepted the change requested at
comment #4 and added the language to
paragraph (a). However, OPM disagrees
with comment #7. We believe
describing the type of appointment a
land management eligible may receive is
appropriate under this section heading,
as it is an aspect of selection. We note
this reference to the type of
appointment parallels language
currently in § 335.106 pertaining to
individuals eligible under the Veterans
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Employment Opportunities Act of 1998,
as amended. We retained this
formulation in proposed § 335.107 for
consistency with part 335.
To effectuate these requested changes,
the employee union recommended that
OPM redraft § 335.107 as follows:
§ 335.107. Entitlement of Land
Management Eligibles To Compete for
Permanent Positions Under Merit
Promotion
A current or former time-limited
employee of a land management agency
who is a land management eligible, as
defined in § 315.613(b)(3), is entitled to
compete in accordance with the
provisions of § 315.613:
(a) for a permanent position in the
competitive service at any agency
(including, but not limited to, a land
management agency) when that agency
is accepting applications from
individuals outside its own workforce
under its merit promotion procedures;
and
(b) for a permanent position in the
competitive service at the land
management agency at which they were
most recently an employee when that
agency is accepting applications from
individuals within the agency’s
workforce under its merit promotion
procedures.
OPM responded to each bulleted issue
individually above and is not adopting
the recommended language in its
entirety. As previously noted, we are
making many of the recommended
revisions to § 335.107 based on the
concerns expressed by the employee
union. OPM also notes that a former
time-limited employee of a land
management agency who is a land
management eligible is considered
‘‘within the [land management] agency’s
workforce’’ as long as the employee was
most recently an employee of that
agency (date of separation was not more
than 2 years prior to application), even
if the time-limited appointment has
ended. See 5 U.S.C. 9602(d).
Expected Impact of This Final Rule
A. Statement of Need
OPM is issuing this final rule to
implement statutory changes that allow
certain current and former time-limited
employees of a land management
agency to compete for permanent
positions at a land management agency,
when the agency is accepting
applications from individuals within
the agency’s workforce under merit
promotion procedures; or at any agency
when the agency is accepting
applications from individuals from
outside its own workforce under merit
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promotion procedures. These changes
are in response to the enactment of the
Act, Public Law 114–47, 5 U.S.C. 9601
and 9602.
B. Impact
This final rule provides a pathway for
certain current and former land
management employees currently
serving (or who have served) under
time-limited appointments at 5 CFR part
316 to compete for vacant permanent
Federal positions in the competitive
service under merit promotion
procedures. Prior to enactment of the
Act, these individuals competed for
Federal jobs open to U.S. citizens
through an open competitive process
(unless the Land Management eligible
had previously acquired competitive
status). These employees now have
statutory eligibility to compete under
merit promotion procedures under
certain circumstances. Thus, the law
treats these individuals as if they had
competitive status for purposes of
applying for permanent Federal jobs
advertised under an agency’s merit
promotion procedures. A potential
impact may be that the demand for jobs
advertised under these procedures
could increase, as measured by an
increase in the number of applicants
vying for positions advertised under
these procedures. This may result in
longer processing times or ‘‘time to
hire’’ periods than was previously the
case.
Another potential impact could be on
job-seeking veterans whose eligibility
derives from the Veterans Employment
Opportunities Act (VEOA) of 1998, as
amended. The VEOA provides eligible
veterans with the right to apply for
positions advertised under merit
promotion procedures when the hiring
agency seeks applicants outside the
hiring agency’s workforce. Prior to
enactment of the Act, VEOA eligible
veterans were the only group with a
statutory entitlement to compete for
positions being filled by an agency from
outside its own workforce under merit
promotion procedures. In general, this
may increase competition for these
positions in general, and thus may
reduce the chances of a VEOA eligible
being selected for one of these positions.
Lastly, this rule could impact current
employees of land management agencies
serving in career-ladder positions. An
employee in a career ladder position
may be non-competitively promoted to
the next highest grade-level, provided
the next highest grade-level is within
the career-ladder, the employee meets
time-in-grade requirements, and is
otherwise qualified for the duties at the
next highest grade level. Because the
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Act extends eligibility to individuals
outside the agency’s or the Federal
government’s workforce, employees in
career-ladder positions may now find
themselves pitted against these external
candidates.
OPM cannot quantify the size of these
potential impacts (including the impact
on VEOA eligible) because we have no
way of knowing the volume or
frequency with which land management
eligibles may apply for a position under
these rules.
C. Regulatory Alternatives
There is no regulatory alternative to
the final rule because OPM is required
by the Act to implement the statute
through regulations (see 5 U.S.C.
9602(e)).
D. Costs
The costs associated with the final
rule are minimal and include: the costs
associated with the resources needed to
process a potentially higher volume of
job applicants for certain Federal jobs
and the usual learning curve of
implementing a regulatory change. To
help minimize the latter cost, OPM
intends to issue supplemental,
explanatory guidance as well as provide
technical assistance upon request to any
agency that may require such assistance.
Because agency resources and the
potential volume of increased job
applicants vary, OPM cannot monetize
the costs of these rules.
E. Benefits
The final rule will benefit certain
employees and former employees of
land management agencies and may
benefit hiring agencies as well. These
rules allow current and former timelimited employees of land management
agencies who are otherwise ineligible
(i.e., they have not acquired competitive
status nor do they have reinstatement
eligibility) to compete for permanent
jobs under merit promotion procedures
to do so. Time-limited employees are
ineligible to compete for vacant
permanent positions advertised under
merit promotion procedures because, by
definition, they do not acquire
competitive status on the basis of the
time-limited appointment. Generally,
positions filled under merit promotion
procedures are open to current or former
career or career-conditional employees,
certain veterans eligible under the
VEOA and other individuals with
special appointment eligibilities who
are treated as if they have competitive
status (i.e., former peace corps
volunteers or certain military spouses).
Because many agencies fill non-entry
level positions using merit promotion
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procedures, qualified time-limited
employees may never be considered for
these positions under merit promotion
procedures. To remedy this
circumstance, Congress enacted the Act
to provide a pathway for certain timelimited employees in Federal land
management agencies to permanent
positions. These provisions allow
eligible current and former time-limited
land management employees to compete
for permanent positions in the
competitive service under merit
promotion procedures that previously
were closed to them.
Hiring agencies may benefit from
having an additional source of
experienced land management
employees to consider under their merit
promotion procedures who otherwise
may not have been within reach for
selection when applying through the
competitive examining process. This
potential benefit must be balanced with
the costs associated with processing a
potentially higher volume of job
applicants (including longer time-tohire processing times) under merit
promotion procedures.
Regulatory Review
OPM has examined the impact of this
rule as required by Executive Orders
12866, 13563, and 14094, which 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). This rule is
considered a ‘‘significant regulatory
action’’ under section 3(f) of Executive
Order 12866.
Regulatory Flexibility Act
The Director of OPM certifies that this
rule will not have a significant
economic impact on a substantial
number of small entities because it
applies only to Federal agencies and
employees.
Federalism
The Office of Personnel Management
has examined this rulemaking in
accordance with Executive Order 13132,
Federalism, and have determined that
this rulemaking will not have any
negative impact on the rights, roles, and
responsibilities of State, local, or tribal
governments.
Civil Justice Reform
This regulation meets the applicable
standard set forth in Executive Order
12988.
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Unfunded Mandates Reform Act of
1995
This rulemaking 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
Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996 (also known as the Congressional
Review Act) (5 U.S.C. 801 et seq.)
requires rules (as defined in 5 U.S.C.
804) to be submitted to Congress before
taking effect. OMB’s Office of
Information and Regulatory Affairs has
determined this is not a major rule as
defined by the Congressional Review
Act (5 U.S.C. 804(2)).
Paperwork Reduction Act
This rulemaking does not impose any
reporting or record-keeping
requirements subject to the Paperwork
Reduction Act.
List of Subjects in 5 CFR Parts 315 and
335
Government employees.
Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, OPM amends 5 CFR
parts 315 and 335 as follows:
PART 315—CAREER AND CAREER
CONDITIONAL EMPLOYMENT
1. The authority citation for part 315
is revised to read as follows:
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■
Authority: 5 U.S.C. 1302, 3301, and 3302;
E.O. 10577, 3 CFR, 1954–1958 Comp. p. 218,
unless otherwise noted; and E.O. 13162.
Secs. 315.601 and 315.609 also issued under
22 U.S.C. 3651 and 3652. Secs. 315.602 and
315.604 also issued under 5 U.S.C. 1104. Sec.
315.603 also issued under 5 U.S.C. 8151. Sec.
315.605 also issued under E.O. 12034, 3 CFR,
1978 Comp. p.111. Sec. 315.606 also issued
under E.O. 11219, 3 CFR, 1964–1965 Comp.
p. 303. Sec. 315.607 also issued under 22
U.S.C. 2560. Sec. 315.608 also issued under
E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec.
315.610 also issued under 5 U.S.C. 3304(c).
Sec. 315.611 also issued under 5 U.S.C.
3304(f). Sec. 315.612 also under E.O. 13473.
Sec 315.613 also issued under Pub. L. 114–
47, sec. 2(a) (Aug. 7, 2015), amended by Pub.
L. 114–328, sec. 1135 (Dec. 23, 2016), as
codified at 5 U.S.C. 9602. Sec. 315.708 also
issued under E.O. 13318, 3 CFR, 2004 Comp.
p. 265. Sec. 315.710 also issued under E.O.
12596, 3 CFR, 1978 Comp. p. 264.
VerDate Sep<11>2014
16:08 Dec 05, 2023
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Subpart F—Career or Career
Conditional Appointment Under
Special Authorities
2. Add § 315.613 to subpart F to read
as follows:
■
§ 315.613 Appointment of current and
former land management eligibles serving
under time-limited appointments.
(a) Appointment of land management
eligibles. (1) Any agency—
(i) May appoint a land management
eligible who is a current time-limited
employee of a land management agency
to a permanent position provided the
land management eligible was selected
from among the best qualified following
competition under a merit promotion
announcement open to candidates
outside of the hiring agency’s workforce;
and
(ii) May appoint a land management
eligible who is a former time-limited
employee of a land management agency
to a permanent position provided:
(A) The land management eligible
applied for that position within the 2year period following the most recent
date of separation from a land
management agency; and
(B) Was selected from among the best
qualified following competition under a
merit promotion announcement open to
candidates outside of the hiring
agency’s workforce.
(2) In addition, a land management
agency—
(i) May appoint a land management
eligible who is a current time-limited
employee of that agency to a permanent
position provided the land management
eligible was selected from among the
best qualified following competition
under a merit promotion announcement
open to candidates within that agency’s
workforce; and
(ii) May appoint a land management
eligible who is a former time-limited
employee of that land management
agency to a permanent position
provided:
(A) The land management eligible
applied for that position within the 2year period following the most recent
date of separation from a land
management agency;
(B) The land management agency
from which the land management
eligible most recently separated is the
same land management agency as the
one making the appointment; and
(C) The land management eligible was
selected from among the best qualified
following competition under a merit
promotion announcement open to
candidates within that agency’s
workforce.
(b) Definitions—(1) Agency has the
meaning given in 5 U.S.C. 105, and may
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
84689
also mean a major subdivision or
component of an entity defined in 5
U.S.C. 105.
(2) Land management agency means
any of the following:
(i) The Forest Service of the U.S.
Department of Agriculture;
(ii) The Bureau of Land Management
of the U.S. Department of the Interior;
(iii) The National Park Service of the
U.S. Department of the Interior;
(iv) The Fish and Wildlife Service of
the U.S. Department of the Interior;
(v) The Bureau of Indian Affairs of the
U.S. Department of the Interior; and
(vi) The Bureau of Reclamation of the
U.S. Department of the Interior.
(3) Land management eligible means
either:
(i) An individual currently serving in
a land management agency who:
(A) Initially was hired under
competitive procedures, for a timelimited appointment in the competitive
service in accordance with part 316, and
has not received a permanent
appointment;
(B) Has served under one or more
time-limited appointments by a land
management agency for a period or
periods totaling more than 24 months
without a break in service of 2 or more
years; and
(C) Has performed at an acceptable
level during each period of service; or
(ii) An individual who previously
served in a land management agency
who:
(A) Initially was hired under a timelimited appointment under competitive
procedures in the competitive service in
accordance with part 316, and did not
receive a permanent appointment before
leaving Federal service;
(B) Served under one or more timelimited appointments by a land
management agency for a total period of
more than 24 months without a break in
service of 2 or more years;
(C) Performed at an acceptable level
throughout the service period(s);
(D) Applied for a position covered by
these provisions within 2 years after the
individual’s most recent date of
separation from a land management
agency; and
(E) With respect to the individual’s
most recent separation, for reasons other
than misconduct or performance. For
these purposes, an individual under this
paragraph is deemed a time-limited
employee of the land management
agency from which the individual was
most recently separated.
(4) Time-limited appointment means a
temporary or term appointment, in
accordance with 5 CFR part 316.
(c) Conditions. An agency is expected
to consider the application of a land
E:\FR\FM\06DER1.SGM
06DER1
84690
Federal Register / Vol. 88, No. 233 / Wednesday, December 6, 2023 / Rules and Regulations
management eligible; and must waive
any age requirement unless it can prove
that the requirement is essential to the
performance of the duties of the
position.
(d) Acquisition of competitive status.
A person appointed under paragraph (a)
of this section acquires competitive
status automatically upon appointment.
(e) Tenure on appointment. An
appointment under paragraph (a) of this
section is career-conditional unless the
appointee has already satisfied the
requirements for career tenure or is
exempted from the service requirement
pursuant to § 315.201.
DEPARTMENT OF TRANSPORTATION
PART 335—PROMOTION AND
INTERNAL PLACEMENT
The FAA is adopting a new
airworthiness directive (AD) for all
Honeywell International Inc.
(Honeywell) Model AS907–1–1A and
AS907–2–1G engines. This AD was
prompted by reports of compressor
surge, including a dual engine
compressor surge, during takeoff climb
out through a steep temperature
inversion, causing a loss of engine
thrust control. This AD requires either
the replacement of a certain electronic
control unit (ECU) software version
installed on AS907–1–1A engines with
updated software or the replacement of
certain ECUs installed on AS907–1–1A
engines with ECUs eligible for
installation. This AD also requires the
replacement of certain ECUs installed
on AS907–2–1G engines. The FAA is
issuing this AD to address the unsafe
condition on these products.
DATES: This AD is effective January 10,
2024.
ADDRESSES:
AD Docket: You may examine the AD
docket at regulations.gov under Docket
No. FAA–2023–1050; or in person at
Docket Operations between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this final rule, any comments
received, and other information. The
address for Docket Operations is U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE, Washington, DC
20590.
FOR FURTHER INFORMATION CONTACT:
Joseph Costa, Aviation Safety Engineer,
FAA, 3960 Paramount Boulevard,
Lakewood, CA 90712; phone: (562) 627–
5246; email: joseph.costa@faa.gov.
SUPPLEMENTARY INFORMATION:
3. The authority citation for part 335
is revised to read as follows:
Authority: 5 U.S.C. 3301, 3302, 3330; E.O.
10577, 3 CFR 1954–1958 Comp., p. 218; 5
U.S.C. 3304(f); Pub. L. 106–117; Pub. L. 114–
47, sec. 2(a) (Aug. 7, 2015), as amended by
Pub. L. 114–328, sec. 1135 (Dec. 23, 2016),
codified at 5 U.S.C. 9602.
Subpart A—General Provisions
4. Add § 335.107 to subpart A to read
as follows:
■
lotter on DSK11XQN23PROD with RULES1
§ 335.107 Special selection procedures for
land management eligibles under merit
promotion.
A current or former land management
employee of a land management agency,
who is a land management eligible, as
defined in § 315.613(b)(3) of this
chapter, may compete, if otherwise
qualified for:
(a) A permanent position at any
agency (including, but not limited to, a
land management agency), in
accordance with the provisions of
§ 315.613 of this chapter, when that
agency is accepting applications from
individuals outside its own workforce
under merit promotion procedures. A
land management eligible so selected
will be given a career or careerconditional appointment under
§ 315.613; or
(b) A permanent position at the land
management agency with which the
individual was most recently an
employee, in accordance with the
provisions of § 315.613 of this chapter,
when the agency is accepting
applications from individuals within
the agency’s workforce under its merit
promotion procedures. A land
management eligible so selected will be
given a career or career-conditional
appointment under § 315.613.
BILLING CODE 6325–39–P
VerDate Sep<11>2014
16:08 Dec 05, 2023
Jkt 262001
14 CFR Part 39
[Docket No. FAA–2023–1050; Project
Identifier AD–2022–00602–E; Amendment
39–22620; AD 2023–24–04]
RIN 2120–AA64
Airworthiness Directives; Honeywell
International Inc. Engines
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY:
■
[FR Doc. 2023–26723 Filed 12–5–23; 8:45 am]
Federal Aviation Administration
Background
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would
apply to all Honeywell Model AS907–
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
1–1A and AS907–2–1G engines. The
NPRM published in the Federal
Register on May 23, 2023 (88 FR 32980).
The NPRM was prompted by several
reports that Honeywell Model AS907–
1–1A and AS907–2–1G engines
experienced compressor surge,
including an AS907–1–1A dual engine
compressor surge, during takeoff climb
out through a steep temperature
inversion, which resulted in loss of
engine thrust control. The FAA
determined that the installed ECU
software version logic locked the engine
inlet total temperature (Tt2) at 60 knots
on a takeoff roll and that reference Tt2
remained locked until the aircraft
reached 400 feet above ground level
(AGL) or the pilot moved the throttle
before reaching 400 AGL. The locked
Tt2 is mathematically adjusted by the
ECU software for altitude and Mach
number changes as the takeoff
progresses. During a climb to 400 feet
AGL with a thermal inversion, the
actual engine Tt2 can increase above the
Tt2 that is being calculated by the ECU,
which causes the compressor guide
vanes’ (CGVs) and surge bleed valves’
(SBVs) positions to be off-schedule for
the actual ambient conditions.
Significant off-scheduling of the CGVs
and the SBVs can lead to a compressor
surge event. The compressor surge
margin is decreased when scheduling is
based on a colder Tt2 temperature than
what the engine is actually running.
Engine deterioration impacts
compressor surge margin and can
increase the likelihood of a dual engine
compressor surge as the AS907–1–1A
and AS907–2–1G engine fleets age. Dual
engine power loss due to a temperature
inversion may result in significant loss
of airplane thrust, which could reduce
the climb gradient and result in the
airplane’s inability to clear obstacles. As
a result, the manufacturer updated the
software.
In the NPRM, the FAA proposed to
require either the replacement of a
certain ECU software version installed
on AS907–1–1A engines with an
updated software version eligible for
installation or the replacement of
certain ECUs installed on AS907–1–1A
engines with ECUs eligible for
installation. The NPRM also proposed to
require the replacement of certain ECUs
installed on AS907–2–1G engines with
ECUs eligible for installation. The FAA
is issuing this AD to address the unsafe
condition on these products.
E:\FR\FM\06DER1.SGM
06DER1
]]>Agencies
[Federal Register Volume 88, Number 233 (Wednesday, December 6, 2023)]
[Rules and Regulations]
[Pages 84685-84690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26723]
========================================================================
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.
========================================================================
Federal Register / Vol. 88, No. 233 / Wednesday, December 6, 2023 /
Rules and Regulations
[[Page 84685]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 315 and 335
RIN 3206-AN28
Appointment of Current and Former Land Management Employees
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to allow certain current and former employees of a land
management agency to compete for a permanent position at such agency,
when the agency is accepting applications from individuals within the
agency's workforce under promotion and internal placement (i.e., merit
promotion) procedures; or at any hiring agency when the agency is
accepting applications from individuals outside its own workforce under
merit promotion procedures. The intended effect of this hiring
authority is to provide a pathway for current and former land
management employees currently serving (or served) under time-limited
appointments, who have not received a permanent appointment in the
competitive service, to compete for vacant permanent Federal positions
in the competitive service under merit promotion procedures.
DATES: This rule is effective January 5, 2024.
FOR FURTHER INFORMATION CONTACT: Michelle T. Glynn, (202) 606-1571, by
TDD: 1-800-877-8339, or email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Under most circumstances, individuals who are serving (or served)
under time-limited appointments are not eligible to compete under merit
promotion procedures for permanent positions in the competitive
service. Generally, positions filled under merit promotion procedures
are only open to current career or career conditional employees to
include certain veterans who are eligible under the Veterans Employment
Opportunities Act (VEOA) of 1998, as amended. Because time-limited
employees are not career or career conditional employees, they may
never be considered for permanent positions under merit promotion
procedures. To remedy this situation, Congress enacted the Land
Management Workforce Flexibility Act (``the Act'') under 5 U.S.C. 9601
and 9602 to better assist certain time-limited employees in Federal
land management agencies to compete for vacant permanent positions in
the competitive service under merit promotion procedures.
To implement the Act, OPM published proposed regulations in the
Federal Register at 85 FR 29348 on May 15, 2020. Specifically, OPM
proposed to allow certain current and former land management employees
who are serving (or served) under time-limited appointments and have
not received a permanent position in the Federal government to compete
for permanent positions under merit promotion procedures in 5 CFR parts
316 and 335. After considering the comments received, OPM is finalizing
the proposed amendments with modifications as discussed in the next
section. OPM is also adopting several non-substantive modifications
from the proposed to the regulatory text to improve clarity.
Comments on the Proposed Rule
OPM received five comments on the proposed rule: four from
individuals and one from a Federal employee union. One individual
commented that the rule does not address whether a land management
eligible with competitive status is subject to time-in-grade (TIG)
restrictions when using this authority. The commenter also asked
whether a land management eligible who already held a permanent job
could use his or her eligibility multiple times when applying for
positions under promotion and internal placement (i.e., merit
promotion) procedures. The commenter suggested that OPM state clearly
in the regulation whether these situations are allowed.
Agencies cannot use this authority to circumvent TIG requirements.
TIG exists to prevent excessively rapid promotions in competitive
service General Schedule positions and to protect competitive
principles. In accordance with 5 CFR 300.603, TIG applies to an
individual who served on a non-temporary appointment within the 52-week
period prior to advancement. Based on the scenario described above, the
permanent employee, who was formerly a time-limited employee, would be
subject to time-in-grade if seeking a higher-graded position. In
accordance with 5 U.S.C. 9602, eligibility under these regulations
applies to certain individuals serving, or who served, under a time-
limited appointment and have not received a permanent position in the
Federal government. OPM will address this and other scenarios
pertaining to TIG requirements in supplemental guidance.
One individual expressed concern over the hiring practices at the
Bureau of Land Management (BLM) and dissatisfaction with the current
BLM leadership. This individual did not have any objections to or
suggestions on the proposed regulation. OPM will not address this
comment because it is beyond the scope of the proposed regulations.
Two individuals provided positive comments and expressed strong
support for the proposed regulation. A retired National Park Ranger
stated that he strongly supports the proposed regulation because it
greatly benefits the National Park Service in the recruitment and
retention of new and diverse employees. Another individual stated that
this regulation will help temporary employees find full-time permanent
employment and hiring managers to attract experienced workers. OPM
appreciates this support.
One individual suggested that OPM amends the proposed rule to allow
employees who previously served on a temporary appointment have that
time credited toward the probationary or trial period. OPM is not
adopting this suggestion because it is not necessary. The governing
statute at 5 U.S.C. 9602(c)(2) states that individuals appointed under
this authority acquire competitive status upon appointment. Competitive
status is acquired after completion of a probationary period in
accordance with 5 CFR 212.301. The
[[Page 84686]]
statute deems a land management eligible who is selected to have
completed a probationary period upon appointment under this authority.
The proposed regulation at 5 CFR 315.613(d) states this.
The same individual suggested that OPM modifies proposed Sec.
335.107 to make clear that a land management eligible may compete for a
permanent position at any agency when the position is being filled
under merit promotion procedures. OPM is not adopting this suggestion.
The Act at 5 U.S.C. 9602 established the conditions and criteria under
which certain current or former land management employees may compete
for a permanent position under merit promotion procedures. The
suggested language is not in accordance with this statute. The language
in the proposed rule is consistent with the governing statute and
reflects the conditions under which a land management employee may
compete when a job is advertised under merit promotion procedures and
open to candidates from outside an agency's workforce or under merit
promotion procedures and open to candidates from within an agency's
workforce.
A Federal employee union commented that its primary concern is to
ensure the regulation and supplementary information reflect the
statutory requirement that agencies must allow all land management
eligibles to compete for vacancies filled under their merit promotion
procedures. This Federal employee union submitted several specific
comments that are discussed throughout the remainder of the
Supplementary Information section of this preamble.
Federal Employee Union Comments on the Supplementary Information of the
Proposed Rule
The employee union stated:
The primary thrust of the statute, as expressed in its first
sentence, is to establish that a land management eligible ``is
eligible to compete (emphasis added).'' [sic] It is therefore
mandatory that agencies consider land management eligible
applicants.
This is not reflected in the first sentence in the supplementary
information under ``Description of the Flexibility (p. 29349)''
which states, in relevant part, ``. . . an agency may use this
authority to allow a current or former land management eligible . .
. to compete for a permanent position. . .'' (emphasis added). The
term ``may'' gives agencies discretion to ``allow'' or to not allow
land management eligibles to compete. In fact, the statute is
prescriptive in this regard, in that it states that land management
eligibles are ``eligible to compete.'' It is not within the
authority of an agency to remove that which Congress has bestowed.
We recommend this be revised to state ``. . .under this authority,
an agency must to allow [sic] a current or former land management
eligible. . . to compete for a permanent position . . .'' (emphasis
in original.)
The employee union also asserted the sentence quoted above (``. . .
an agency may use this authority to allow a current or former land
management eligible . . . to compete for a permanent position . . .''
(emphasis in original)) had to be ``a simple drafting error'' because
in the same section the supplementary information stated: ``an agency
must consider a land management eligible (also under ``Description of
the Flexibility, '' p. 29349).'' Nevertheless, the presence of the
first sentence remained ``problematic as it introduces ambiguity that
could lead to flawed implementation.''
OPM thanks the Federal employee union for the comment. No
modification to the regulatory text is needed as it already reflects
that agencies have the discretion whether to fill their positions under
promotion and internal placement (i.e., merit promotion) procedures (5
CFR part 335) or through another hiring authority. OPM further notes
that the difference in the sentences was not a drafting error, but
rather reflect different points in the hiring process. OPM's use of
``must'' in the second reference under ``Description of the
flexibility'' modifies the phrase ``consider a land management eligible
. . .'' It relates to when a land management eligible applies for a
permanent position. That is, once an agency makes the determination to
use its discretion to advertise for a permanent position under
Promotion and Internal Placement procedures at 5 CFR 335, certain land
management eligibles must be considered.
The employee union further objected to the phrase--``. . . will be
expected to consider land management eligibles . . . (under ``Land
Management Workforce Flexibility Act, as Amended,'' [sic] p. 29349)''
in two places because that phrase did not create requirements and was
not a term of art. In the alternative, the employee union again
recommended revising the language ``to clearly articulate the statutory
requirement that agencies must to consider [sic] land management
eligibles.''
OPM agrees and clarifies that agencies who use their discretion to
hire for positions under proposed parts 315 and 335 must consider
eligible land management applicants who apply for permanent positions.
Federal Employee Union Comments on the Regulatory Text at Sec. 335.107
The employee union recommended revising the language at Sec.
335.107 to make it clear that land management eligibles are entitled to
compete for permanent positions. It asserted ``[t]he statement that
they `may compete' is not, in our view, sufficiently prescriptive in
this regard.''
OPM does not believe this change is necessary because `may' and
`are entitled' have the same meaning in this context. The law does not
require individuals to compete, it allows them to, hence our use of
``may.'' Further, this formulation parallels language currently in
Sec. 335.106 pertaining to individuals eligible under the Veterans
Employment Opportunities Act of 1998, as amended. We retained ``may
compete'' for consistency in part 335.
The employee union further commented that the proposed Sec.
335.107, ``Special selection procedures for certain land management
eligibles under merit promotion'' (emphasis added) is problematic
because it implies some but not all land management eligibles are
eligible to compete for permanent positions. The employee union added
``In fact, the section applies to all land management eligibles, as
defined in the statute and in the proposed regulation, not only to
certain ones . . . [and] could lead practitioners to wrongfully exclude
subsets of land management eligibles.'' The employee union recommended
deleting the word ``certain'' from the heading.
OPM notes this section applies only to those land management
employees who meet the eligibility requirements of the statute (i.e.,
current and former time-limited land management employees). OPM agrees,
however, the original title may cause confusion by suggesting greater
limitations beyond meeting the eligibility requirements. Consequently,
OPM has revised the section heading for proposed Sec. 335.107 to read,
``Sec. 335.107. Special selection procedures for land management
eligibles under merit promotion.''
The employee union further stated that Sec. 335.107 should be
revised to reflect that the section was not about selection procedures
and the Act established an ``entitlement to compete.'' Consequently, it
recommended changing the heading to ``Entitlement of land management
eligibles to compete for permanent positions under merit promotion.''
OPM disagrees with this comment. This section is about selection
procedures, as it encompasses eligibility
[[Page 84687]]
for selection as well as how selected individuals will be appointed
(i.e., given a career or career-conditional appointment in accordance
with 5 CFR 315.613). This formulation parallels language currently in
Sec. 335.106 pertaining to individuals eligible under the Veterans
Employment Opportunities Act of 1998, as amended. We retained
``selection procedures'' for consistency in part 335.
The employee union disagrees with the phrase ``if otherwise
qualified'' in the regulatory language at Sec. 335.107 and states the
phrase suggests some but not all land management employees are
eligible. The employee union further states that the statute and the
proposed definition at Sec. 315.613(b)(3) makes all land management
employees eligible to compete for a permanent position and fears it
could lead human resources specialists to wrongfully exclude subsets of
eligible land management employees. The employee union recommends
replacing ``if otherwise qualified'' with ``if they properly apply and
otherwise meet qualifications for the position.''
OPM is not adopting this suggestion. The phrase ``if otherwise
qualified'' describes who may compete under merit promotion procedures
in part 335 and entails more general considerations, such as whether an
applicant meets the qualifications for the position being filled,
satisfies any applicable time-in-grade requirements, etc.
The employee union also provided a list of additional recommended
edits to the proposed language at Sec. 335.107 as follows:
1. ``There is a spurious close parenthesis in the parent
phrase.''
OPM agrees and removed the extraneous parenthesis in Sec. 335.107.
2. ``As written, `compete' is under (a) and therefore does not
apply to (b), leaving that which a land management eligible may do
under the circumstances described under (b) unspecified. `Compete'
should be the last word of the parent phrase, not the first word
under (a).''
OPM agrees and has revised the text in Sec. 335.107 to the
following: ``. . . may compete, if otherwise qualified:''
3. ``As written, the phrase ``in accordance with Sec. 315.613''
applies only to (b). It should apply to both (a) and (b) and
therefore should be moved to the parent phrase.''
4. ``As written, it is specified that a land management eligible
selected to such a position is given a career or career-conditional
appointment only in (b), but not in (a). This requirement exists for
both.''
OPM agrees with both comments immediately above and has modified
Sec. 335.107(a) to include similar language to what appears in
paragraph (b).
5. ``As written, it is specified that a permanent position
subject to the requirements of the statute are in the competitive
service in (a), but not in (b). This requirement exists for both.''
OPM agrees and has revised the text by removing the reference to
``in the competitive service'' at Sec. 335.107(a). The reference to
the ``competitive service'' at Sec. 335.107(a) is superfluous because,
by definition, merit promotion procedures can only be used to fill
positions in the competitive service. We also revised the text at Sec.
335.107(b) to coincide. Further, the sentence added to Sec. 315.613(a)
based on earlier comments notes the types of appointments available,
which also are only available in the competitive service.
6. ``As written, the use of the conjunction `or' at the end of
(a) would mean a land management eligible could compete under (a) or
under (b), but not both. In fact, a land management eligible is not
precluded from, for example, applying for a position under (a) by
virtue of having applied for one under (b). The appropriate
conjunction for this circumstance is `and.'
OPM is not adopting the suggestion to replace ``or'' with ``and''
between Sec. 335.107(a) and (b). OPM's use of ``or'' conveys that a
land management eligible may compete in either of two instances: if a
job is advertised under merit promotion procedures outside the agency's
workforce, or if a job is advertised under merit promotion procedures
within the agency's workforce. The use of ``and'' may confuse readers
to think a land management eligible may only apply when a job is
advertised both ways.
7. ``The statement `A land management eligible so selected will
be given a career or career-conditional appointment' does not go to
the point of the section, the entitlement of land management
eligibles to compete for permanent positions. It is one of several
aspects that relate to selection. As such, it is handled under the
section dealing with these matters, at Sec. 315.613(e). It is not
needed here.
OPM notes that the employee union also commented above at #4 that
this sentence only appeared in Sec. 335.107(b) but also applied to
Sec. 335.107(a). OPM accepted the change requested at comment #4 and
added the language to paragraph (a). However, OPM disagrees with
comment #7. We believe describing the type of appointment a land
management eligible may receive is appropriate under this section
heading, as it is an aspect of selection. We note this reference to the
type of appointment parallels language currently in Sec. 335.106
pertaining to individuals eligible under the Veterans Employment
Opportunities Act of 1998, as amended. We retained this formulation in
proposed Sec. 335.107 for consistency with part 335.
To effectuate these requested changes, the employee union
recommended that OPM redraft Sec. 335.107 as follows:
Sec. 335.107. Entitlement of Land Management Eligibles To Compete for
Permanent Positions Under Merit Promotion
A current or former time-limited employee of a land management
agency who is a land management eligible, as defined in Sec.
315.613(b)(3), is entitled to compete in accordance with the provisions
of Sec. 315.613:
(a) for a permanent position in the competitive service at any
agency (including, but not limited to, a land management agency) when
that agency is accepting applications from individuals outside its own
workforce under its merit promotion procedures; and
(b) for a permanent position in the competitive service at the land
management agency at which they were most recently an employee when
that agency is accepting applications from individuals within the
agency's workforce under its merit promotion procedures.
OPM responded to each bulleted issue individually above and is not
adopting the recommended language in its entirety. As previously noted,
we are making many of the recommended revisions to Sec. 335.107 based
on the concerns expressed by the employee union. OPM also notes that a
former time-limited employee of a land management agency who is a land
management eligible is considered ``within the [land management]
agency's workforce'' as long as the employee was most recently an
employee of that agency (date of separation was not more than 2 years
prior to application), even if the time-limited appointment has ended.
See 5 U.S.C. 9602(d).
Expected Impact of This Final Rule
A. Statement of Need
OPM is issuing this final rule to implement statutory changes that
allow certain current and former time-limited employees of a land
management agency to compete for permanent positions at a land
management agency, when the agency is accepting applications from
individuals within the agency's workforce under merit promotion
procedures; or at any agency when the agency is accepting applications
from individuals from outside its own workforce under merit
[[Page 84688]]
promotion procedures. These changes are in response to the enactment of
the Act, Public Law 114-47, 5 U.S.C. 9601 and 9602.
B. Impact
This final rule provides a pathway for certain current and former
land management employees currently serving (or who have served) under
time-limited appointments at 5 CFR part 316 to compete for vacant
permanent Federal positions in the competitive service under merit
promotion procedures. Prior to enactment of the Act, these individuals
competed for Federal jobs open to U.S. citizens through an open
competitive process (unless the Land Management eligible had previously
acquired competitive status). These employees now have statutory
eligibility to compete under merit promotion procedures under certain
circumstances. Thus, the law treats these individuals as if they had
competitive status for purposes of applying for permanent Federal jobs
advertised under an agency's merit promotion procedures. A potential
impact may be that the demand for jobs advertised under these
procedures could increase, as measured by an increase in the number of
applicants vying for positions advertised under these procedures. This
may result in longer processing times or ``time to hire'' periods than
was previously the case.
Another potential impact could be on job-seeking veterans whose
eligibility derives from the Veterans Employment Opportunities Act
(VEOA) of 1998, as amended. The VEOA provides eligible veterans with
the right to apply for positions advertised under merit promotion
procedures when the hiring agency seeks applicants outside the hiring
agency's workforce. Prior to enactment of the Act, VEOA eligible
veterans were the only group with a statutory entitlement to compete
for positions being filled by an agency from outside its own workforce
under merit promotion procedures. In general, this may increase
competition for these positions in general, and thus may reduce the
chances of a VEOA eligible being selected for one of these positions.
Lastly, this rule could impact current employees of land management
agencies serving in career-ladder positions. An employee in a career
ladder position may be non-competitively promoted to the next highest
grade-level, provided the next highest grade-level is within the
career-ladder, the employee meets time-in-grade requirements, and is
otherwise qualified for the duties at the next highest grade level.
Because the Act extends eligibility to individuals outside the agency's
or the Federal government's workforce, employees in career-ladder
positions may now find themselves pitted against these external
candidates.
OPM cannot quantify the size of these potential impacts (including
the impact on VEOA eligible) because we have no way of knowing the
volume or frequency with which land management eligibles may apply for
a position under these rules.
C. Regulatory Alternatives
There is no regulatory alternative to the final rule because OPM is
required by the Act to implement the statute through regulations (see 5
U.S.C. 9602(e)).
D. Costs
The costs associated with the final rule are minimal and include:
the costs associated with the resources needed to process a potentially
higher volume of job applicants for certain Federal jobs and the usual
learning curve of implementing a regulatory change. To help minimize
the latter cost, OPM intends to issue supplemental, explanatory
guidance as well as provide technical assistance upon request to any
agency that may require such assistance. Because agency resources and
the potential volume of increased job applicants vary, OPM cannot
monetize the costs of these rules.
E. Benefits
The final rule will benefit certain employees and former employees
of land management agencies and may benefit hiring agencies as well.
These rules allow current and former time-limited employees of land
management agencies who are otherwise ineligible (i.e., they have not
acquired competitive status nor do they have reinstatement eligibility)
to compete for permanent jobs under merit promotion procedures to do
so. Time-limited employees are ineligible to compete for vacant
permanent positions advertised under merit promotion procedures
because, by definition, they do not acquire competitive status on the
basis of the time-limited appointment. Generally, positions filled
under merit promotion procedures are open to current or former career
or career-conditional employees, certain veterans eligible under the
VEOA and other individuals with special appointment eligibilities who
are treated as if they have competitive status (i.e., former peace
corps volunteers or certain military spouses). Because many agencies
fill non-entry level positions using merit promotion procedures,
qualified time-limited employees may never be considered for these
positions under merit promotion procedures. To remedy this
circumstance, Congress enacted the Act to provide a pathway for certain
time-limited employees in Federal land management agencies to permanent
positions. These provisions allow eligible current and former time-
limited land management employees to compete for permanent positions in
the competitive service under merit promotion procedures that
previously were closed to them.
Hiring agencies may benefit from having an additional source of
experienced land management employees to consider under their merit
promotion procedures who otherwise may not have been within reach for
selection when applying through the competitive examining process. This
potential benefit must be balanced with the costs associated with
processing a potentially higher volume of job applicants (including
longer time-to-hire processing times) under merit promotion procedures.
Regulatory Review
OPM has examined the impact of this rule as required by Executive
Orders 12866, 13563, and 14094, which 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). This
rule is considered a ``significant regulatory action'' under section
3(f) of Executive Order 12866.
Regulatory Flexibility Act
The Director of OPM certifies that this rule will not have a
significant economic impact on a substantial number of small entities
because it applies only to Federal agencies and employees.
Federalism
The Office of Personnel Management has examined this rulemaking in
accordance with Executive Order 13132, Federalism, and have determined
that this rulemaking will not have any negative impact on the rights,
roles, and responsibilities of State, local, or tribal governments.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
[[Page 84689]]
Unfunded Mandates Reform Act of 1995
This rulemaking 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
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (also known as the Congressional Review Act) (5 U.S.C. 801
et seq.) requires rules (as defined in 5 U.S.C. 804) to be submitted to
Congress before taking effect. OMB's Office of Information and
Regulatory Affairs has determined this is not a major rule as defined
by the Congressional Review Act (5 U.S.C. 804(2)).
Paperwork Reduction Act
This rulemaking does not impose any reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Parts 315 and 335
Government employees.
Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, OPM amends 5 CFR parts 315 and 335 as follows:
PART 315--CAREER AND CAREER CONDITIONAL EMPLOYMENT
0
1. The authority citation for part 315 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR,
1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162.
Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652.
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec.
315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued
under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606 also issued
under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 315.607 also
issued under 22 U.S.C. 2560. Sec. 315.608 also issued under E.O.
12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5
U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 3304(f).
Sec. 315.612 also under E.O. 13473. Sec 315.613 also issued under
Pub. L. 114-47, sec. 2(a) (Aug. 7, 2015), amended by Pub. L. 114-
328, sec. 1135 (Dec. 23, 2016), as codified at 5 U.S.C. 9602. Sec.
315.708 also issued under E.O. 13318, 3 CFR, 2004 Comp. p. 265. Sec.
315.710 also issued under E.O. 12596, 3 CFR, 1978 Comp. p. 264.
Subpart F--Career or Career Conditional Appointment Under Special
Authorities
0
2. Add Sec. 315.613 to subpart F to read as follows:
Sec. 315.613 Appointment of current and former land management
eligibles serving under time-limited appointments.
(a) Appointment of land management eligibles. (1) Any agency--
(i) May appoint a land management eligible who is a current time-
limited employee of a land management agency to a permanent position
provided the land management eligible was selected from among the best
qualified following competition under a merit promotion announcement
open to candidates outside of the hiring agency's workforce; and
(ii) May appoint a land management eligible who is a former time-
limited employee of a land management agency to a permanent position
provided:
(A) The land management eligible applied for that position within
the 2-year period following the most recent date of separation from a
land management agency; and
(B) Was selected from among the best qualified following
competition under a merit promotion announcement open to candidates
outside of the hiring agency's workforce.
(2) In addition, a land management agency--
(i) May appoint a land management eligible who is a current time-
limited employee of that agency to a permanent position provided the
land management eligible was selected from among the best qualified
following competition under a merit promotion announcement open to
candidates within that agency's workforce; and
(ii) May appoint a land management eligible who is a former time-
limited employee of that land management agency to a permanent position
provided:
(A) The land management eligible applied for that position within
the 2-year period following the most recent date of separation from a
land management agency;
(B) The land management agency from which the land management
eligible most recently separated is the same land management agency as
the one making the appointment; and
(C) The land management eligible was selected from among the best
qualified following competition under a merit promotion announcement
open to candidates within that agency's workforce.
(b) Definitions--(1) Agency has the meaning given in 5 U.S.C. 105,
and may also mean a major subdivision or component of an entity defined
in 5 U.S.C. 105.
(2) Land management agency means any of the following:
(i) The Forest Service of the U.S. Department of Agriculture;
(ii) The Bureau of Land Management of the U.S. Department of the
Interior;
(iii) The National Park Service of the U.S. Department of the
Interior;
(iv) The Fish and Wildlife Service of the U.S. Department of the
Interior;
(v) The Bureau of Indian Affairs of the U.S. Department of the
Interior; and
(vi) The Bureau of Reclamation of the U.S. Department of the
Interior.
(3) Land management eligible means either:
(i) An individual currently serving in a land management agency
who:
(A) Initially was hired under competitive procedures, for a time-
limited appointment in the competitive service in accordance with part
316, and has not received a permanent appointment;
(B) Has served under one or more time-limited appointments by a
land management agency for a period or periods totaling more than 24
months without a break in service of 2 or more years; and
(C) Has performed at an acceptable level during each period of
service; or
(ii) An individual who previously served in a land management
agency who:
(A) Initially was hired under a time-limited appointment under
competitive procedures in the competitive service in accordance with
part 316, and did not receive a permanent appointment before leaving
Federal service;
(B) Served under one or more time-limited appointments by a land
management agency for a total period of more than 24 months without a
break in service of 2 or more years;
(C) Performed at an acceptable level throughout the service
period(s);
(D) Applied for a position covered by these provisions within 2
years after the individual's most recent date of separation from a land
management agency; and
(E) With respect to the individual's most recent separation, for
reasons other than misconduct or performance. For these purposes, an
individual under this paragraph is deemed a time-limited employee of
the land management agency from which the individual was most recently
separated.
(4) Time-limited appointment means a temporary or term appointment,
in accordance with 5 CFR part 316.
(c) Conditions. An agency is expected to consider the application
of a land
[[Page 84690]]
management eligible; and must waive any age requirement unless it can
prove that the requirement is essential to the performance of the
duties of the position.
(d) Acquisition of competitive status. A person appointed under
paragraph (a) of this section acquires competitive status automatically
upon appointment.
(e) Tenure on appointment. An appointment under paragraph (a) of
this section is career-conditional unless the appointee has already
satisfied the requirements for career tenure or is exempted from the
service requirement pursuant to Sec. 315.201.
PART 335--PROMOTION AND INTERNAL PLACEMENT
0
3. The authority citation for part 335 is revised to read as follows:
Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; 5 U.S.C. 3304(f); Pub. L. 106-117; Pub. L. 114-
47, sec. 2(a) (Aug. 7, 2015), as amended by Pub. L. 114-328, sec.
1135 (Dec. 23, 2016), codified at 5 U.S.C. 9602.
Subpart A--General Provisions
0
4. Add Sec. 335.107 to subpart A to read as follows:
Sec. 335.107 Special selection procedures for land management
eligibles under merit promotion.
A current or former land management employee of a land management
agency, who is a land management eligible, as defined in Sec.
315.613(b)(3) of this chapter, may compete, if otherwise qualified for:
(a) A permanent position at any agency (including, but not limited
to, a land management agency), in accordance with the provisions of
Sec. 315.613 of this chapter, when that agency is accepting
applications from individuals outside its own workforce under merit
promotion procedures. A land management eligible so selected will be
given a career or career-conditional appointment under Sec. 315.613;
or
(b) A permanent position at the land management agency with which
the individual was most recently an employee, in accordance with the
provisions of Sec. 315.613 of this chapter, when the agency is
accepting applications from individuals within the agency's workforce
under its merit promotion procedures. A land management eligible so
selected will be given a career or career-conditional appointment under
Sec. 315.613.
[FR Doc. 2023-26723 Filed 12-5-23; 8:45 am]
BILLING CODE 6325-39-P
