[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Rules and Regulations]
[Pages 67589-67605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27638]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 /
Rules and Regulations
[[Page 67589]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 302, 330, 335, 337, and 410
RIN 3206-AL04
Recruitment, Selection, and Placement (General)
AGENCY: U.S. Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is revising the
regulations on Federal vacancy announcements, reemployment priority
list requirements, positions restricted to preference eligibles, the
restriction on moving an employee immediately after a competitive
appointment, the Career Transition Assistance Plan (CTAP), and the
Interagency Career Transition Assistance Plan (ICTAP). This final rule
clarifies the regulations, incorporates longstanding OPM policies,
revises placement assistance programs for consistency and
effectiveness, removes references to two expired interagency placement
assistance programs, and reorganizes information for ease of reading.
DATES: Final rule effective March 3, 2011.
FOR FURTHER INFORMATION CONTACT: For subparts A, D, and E, contact
Linda Watson by telephone at (202) 606-0830; TTY at (202) 418-3134; fax
at (202) 606-0390; or e-mail at [email protected]. For all other
subparts, contact Pam Galemore by telephone at (202) 606-0960; TTY at
(202) 418-3134; fax at (202) 606-2329; or e-mail at
[email protected].
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
revising the regulations in 5 CFR part 330 governing Federal vacancy
announcements, the Reemployment Priority List (RPL), positions
restricted to preference eligibles, the restriction on moving an
employee immediately after a competitive appointment, the Career
Transition Assistance Plan (CTAP), and the Interagency Career
Transition Assistance Plan (ICTAP).
On September 8, 2008, OPM published proposed regulations in the
Federal Register (73 FR 51944) revising part 330 to clarify the
regulations, incorporate longstanding OPM policies, revise placement
assistance programs for consistency and effectiveness, remove
references to two expired interagency placement assistance programs,
and reorganize information for ease of reading. The Supplementary
Information section of the September 8, 2008, proposed rule contains a
discussion of the substantive revisions and changes. The 60-day comment
period for the proposed regulations ended on November 7, 2008. During
the comment period, OPM received comments from seven executive branch
agencies, one legislative branch agency, two labor organizations, and
one employee organization. We address the relevant comments received
under the subpart headings below. The vast majority of comments
received related to provisions in part 330 that were not proposed for
revision and so were outside the scope of the proposed regulations. OPM
is not responding to those comments, i.e., those comments concerning
current regulatory requirements and provisions that we did not propose
to change. Although we are not addressing those comments in this final
rule, we appreciate that the commenters thought additional
clarification would be helpful in applying both continuing and revised
part 330 provisions. With this in mind, we will include additional
clarifying information both in guidance material accompanying this
final regulation and in the Delegated Examining Operations Handbook, as
appropriate.
General Comments
Overall, the agencies supported OPM's proposed revisions to part
330 as benefiting employees affected by downsizing actions, clarifying
the existing regulations and making them more readable, and adding
helpful information.
The employee organization asked whether the revised regulations
would affect the Administrative Law Judge (ALJ) Program. The ALJ
Program is subject to regulations at 5 CFR part 930, subpart B. Under
section 930.201(b), ALJs follow competitive service regulations unless
otherwise stated in part 930. Because ALJs are above the GS-15 level,
or equivalent, they are not subject to subpart F (the Career Transition
Assistance Plan (CTAP)) and subpart G (the Interagency CTAP or ICTAP),
which limit selection priority to the GS-15 level, or equivalent, or
below. ALJs are specifically covered by subpart B, the Reemployment
Priority List, in accordance with section 930.210(c)(1).
The legislative agency questioned the proposed definition of agency
for the purposes of part 330 in section 330.101, which included the
Government Printing Office (GPO). The commenter stated that OPM did not
have authority to include the GPO under the agency definition because
it is an agency in the legislative branch of the Federal Government,
and the Presidential Memorandum dated September 12, 1995, directing the
establishment of the career transition assistance programs under
subparts F and G, CTAP and ICTAP, respectively, was limited to the
internal management of the executive branch. The commenter stated that
the GPO should not have to assist in the placement of displaced
executive branch employees. The commenter also stated that the GPO does
not object to inclusion under subpart B, the Reemployment Priority
List.
OPM agrees in part and disagrees in part with the commenter's
assertion concerning the applicability of part 330 to the GPO.
President Cleveland, by an Adopting and Promulgating Order dated June
13, 1895, placed all GPO employees other than unskilled laborers or
workmen and those appointed by and with the advice and consent of the
Senate into the classified service, subject to the regulations of the
Civil Service Commission, which became OPM in 1979. Although the 1895
Order placed GPO employees in the competitive service, we agree with
the commenter that the 1995 Presidential Memorandum directing the
establishment of career transition assistance programs was limited to
the executive branch. Accordingly, we have redefined agency from the
proposed section 330.602 and section 330.702 to mean an Executive
agency as defined in 5 U.S.C. 105, i.e., an Executive
[[Page 67590]]
department, a Government corporation, and an independent establishment.
The revised definition excludes GPO employees and positions from
coverage under subparts F and G, respectively, meaning the GPO is not
required to provide selection priority to displaced executive branch
employees, and executive branch agencies are not required to provide
selection priority to displaced GPO employees. We have also revised
section 330.404 to exclude GPO employees from the provisions of section
330.404 through section 330.407 that require placement assistance to
preference eligibles separated by reduction in force because of a
contracting-out decision made in accordance with Office of Management
and Budget Circular A-76. We have not redefined agency in subpart B
because OPM regulations regarding the RPL, which implement 5 U.S.C.
3315 and 8151, apply to the GPO per the 1895 Adopting and Promulgating
Order.
One agency asked if there would be an implementation period for
agencies to update their policies, procedures, forms, etc. To allow
time for agencies to update and revise their policies and procedures to
conform to the new regulatory requirements and to consider the new
flexibilities, OPM is providing that the final regulations will be
effective 4 months from the date of publication in the Federal
Register. Agencies are required to provide OPM with a copy of their
final CTAP plans in accordance with section 330.603(a).
One agency suggested that the regulations define an ``excepted
service agency'' to help employees understand this term. This comment
was made in response to the statement on page 51946 of the September 8,
2008, Federal Register notice about including entities with positions
in the competitive service under subparts F and G. We are not adopting
this suggestion because it is unnecessary and would not add to the
clarity of this regulation. It is positions, not agencies per se, that
are excepted from the competitive service, and title 5 of the United
States Code already defines both the term ``competitive service'' and
the term ``excepted service'' at 5 U.S.C. 2102 and 2103, respectively.
Subpart A--Filling Vacancies in the Competitive Service
One agency commented that, although the Supplementary Information
for the proposed regulations indicated that Subpart A was modified to
include requirements mandated by the Veterans Employment Opportunities
Act (VEOA), the agency did not see any changes that related to VEOA. In
fact, section 330.103(b) of the revised regulations is intended to
implement section 2 of the VEOA, codified at 5 U.S.C. 3304(f), by
requiring that an agency notify OPM when filling any vacancy under its
merit promotion procedures if it is accepting applications from outside
its permanent competitive service workforce. We have also clarified the
purpose of section 330.103 by adding that the information an agency
provides to OPM is the vacancy announcement information for the
particular vacancy.
One agency commented that recent legislation may have been enacted
regarding protected genetic information. The commenter recommended
adding genetic information to the Equal Employment Opportunity (EEO)
statement suggested in section 330.104(a)(17). OPM is not adopting this
suggestion; however, based on the agency's comment, we have removed the
proposed recommended EEO statement in section 330.104(a)(17) and
replaced it with information as to where an agency can locate OPM's
recommended language for an EEO statement. Placing the recommended EEO
statement in a central location allows OPM to readily update the
statement with any changes or amendments to Federal employment
discrimination law. Agencies may either use the recommended EEO
statement located on OPM's USAJOBS Web site (http://www.usajobs.gov/eeo) or develop its own EEO policy statement.
For the same reason stated above, OPM is removing the current
recommended statement for Reasonable Accommodation in section
330.707(b)(14)(ii) (which was moved to section 330.104(b)(2) in the
proposed and this final regulation) and replacing it with information
as to where an agency can locate OPM's recommended language for a
Reasonable Accommodation statement. When interpretive changes to the
Americans with Disabilities Act of 1990 occur, OPM will update the
recommended language for a Reasonable Accommodation statement at a
central location on OPM's USAJOBS Web site (http://www.usajobs.gov/raps.) Agencies may either use the recommended language located on
OPM's Web site or develop its own Reasonable Accommodation policy
statement.
One agency noted the incorrect Web address for USAJOBS in section
330.105. We have corrected the Web address to http://www.usajobs.gov.
Subpart B--Reemployment Priority List (RPL)
One agency objected to the proposed renaming of ``priority
consideration'' to ``placement priority'' throughout subpart B because
the renamed term could give the impression that the agency is
responsible for placing the employee, rather than the employee being
responsible for seeking employment. OPM is retaining the revised term
as proposed because the RPL, in fact, provides placement priority for
RPL registrants over individuals from outside the agency's permanent
competitive service workforce.
Two labor organizations objected to the addition of the ``undue
interruption'' standard to the definition of qualified in section
330.202. One organization was concerned about both the deletion of the
reference to the undue interruption definition in 5 CFR 351.203 and the
concept underlying the undue interruption provision. The other
organization erroneously referred to the undue interruption provision
as a new requirement in subpart B and stated that the 90-day standard
for an undue interruption determination is not currently in part 351.
(``Undue interruption'' is defined in section 351.203 as a standard an
agency may consider when placing an employee during a reduction in
force. The standard may be used when the placement of an otherwise
eligible employee could prevent completion of required work 90 days
after the placement.) As stated in the Supplementary Information of the
proposed rule, the undue interruption provision is an exception to RPL
placement in the current regulation at section 330.207(d). The proposed
change merely moved the substance of the exception to the qualified
definition at the beginning of the subpart. Moving the undue
interruption provision as an exception to the definition of qualified
for RPL placement priority makes RPL placement priority consistent with
qualifications for placement in a position under part 351. We agree,
however, that retaining a specific cross-reference to the undue
interruption definition in section 351.203 would provide a more
thorough grounding for the provision and be helpful to agencies in
making determinations. We have revised section 330.202 accordingly,
returning the section 351.203 reference and deleting the parenthetical
information that was taken from the section 351.203 definition.
One agency and two labor organizations were concerned about the
proposed new provision in section 330.207(b) that allows agencies, at
their discretion, to designate a different local commuting area for RPL
eligibles when the agency will not have any competitive service
positions remaining in the local commuting area. The agency
[[Page 67591]]
is concerned that, because no guidelines are provided in the regulation
about when or why an agency would exercise this option, major
discrepancies could arise in how RPL eligibles are treated among the
various agencies. One labor organization recommended that agencies,
instead of having discretion, be required to designate a different
local commuting area because to leave to their discretion the
designation of a different local commuting area would make this
provision mere guidance, which agencies could disregard. OPM believes
that each agency is in the best position to determine if and when it
would be appropriate to use this flexibility. OPM believes that
appropriate considerations would include the size and locations of the
agency's workforce, available vacancies, and available funds. We have
added these general criteria to the regulation in section 330.207(b)
for agency consideration when establishing their policies, if they
choose to implement this provision.
The other labor organization believes that an RPL eligible should
be given the option of registering for expanded consideration in
multiple local commuting areas if he or she is willing to cover the
costs of relocation upon acceptance of a vacancy offer. OPM cannot
adopt this suggestion. The Federal Travel Regulations (41 CFR part 302-
2) require that an employee is entitled to relocation allowances if the
agency determines the relocation is in the interest of the Government.
Because 41 CFR 302-3.205 states that any relocation due to reduction in
force is considered to be in the interest of the Government, and 41 CFR
302-3.206 provides that an agency may pay a relocation allowance to a
re-employed employee separated by reduction in force or transfer of
function, the agency would be required to reimburse the employee should
the employee claim relocation expenses at a later date. Based on these
considerations, OPM is retaining section 330.207(b) as proposed.
Proposed section 330.207(d) requires an agency to establish a fair
and consistent policy for expanding the registration area for an
employee whose RPL eligibility is based on recovery from a compensable
work injury. One agency commented that section 330.207(d) does not
include information regarding the circumstances that would be
appropriate for expansion. Proposed section 330.207(d) merely added a
requirement to the requirement in current section 330.206(b)(1) to
expand consideration ``at the time and in a manner as the agency
determines will provide the individual with maximum opportunities for
consideration.'' The new requirement is for the agency to establish a
fair and consistent policy for expanding consideration Because Federal
agencies range from under a hundred positions in one location to
thousands of positions worldwide, OPM believes each agency is in the
best position to determine if, when, and how it will expand
consideration for its employees who have recovered from a compensable
injury based on the location and availability of positions for the RPL
registrant to exercise placement priority. However, we agree that
including examples, such as agency size, geographic scope, and funding
availability, would be helpful to agencies with establishing their
policies and we have revised section 330.207(d) accordingly.
One agency commented that proposed section 330.208(a) is somewhat
confusing, perhaps due to the length of the sentence, and offered
revised language to separate the provisions into three sentences. We
agree that the section could be clearer; however, to avoid redundancy,
we revised section 330.208(a) to retain the events resulting in RPL
eligibility within one sentence and separated into a second sentence
the provision that an RPL eligible remains registered unless removed
from the RPL for a reason specified in section 330.209. Section
330.208(a) as revised reads: ``(a) RPL registration expires 2 years
from the date of reduction in force separation under part 351 of this
chapter, or 2 years from the date the agency registers the RPL eligible
because of recovery from a compensable work injury under Sec.
330.206(a)(3)(i) or (ii). An RPL eligible remains registered for the
full 2-year period unless the registrant is removed from the RPL for a
reason specified in Sec. 330.209.''
One agency commented that extending the duration of RPL eligibility
in section 330.208(a) to 2 years for both tenure groups I and II will
benefit the registrant, but will also prolong the need to check the
RPL, ultimately creating more work. OPM disagrees with the agency's
comment. Under section 330.210(b), the agency is required to check its
RPL for registrants each time it fills a competitive service vacancy
from outside its permanent competitive service workforce. Extending the
eligibility period for tenure group II RPL registrants will not affect
how often the agency checks its RPL.
One agency commented that section 330.208(b) provides OPM the
authority to extend an RPL eligible's registration period when the
eligible does not receive the 2 full years of placement priority, but
it does not indicate how or who notifies OPM of the situation. We agree
that additional clarification is needed. We have added a new paragraph
to section 330.208(b) allowing either the agency or the RPL eligible to
request OPM approval to extend the registration period if the
registrant was denied the full 2-year registration period because of
administrative or clerical error.
One agency noted the typographical error in section 330.212(c)(2)
in referencing section 330.210 instead of section 330.213. We have
corrected the reference in this final rule.
One labor organization objected to the provisions of section
330.213(c) and (d) concerning the selection order of RPL placement
priority candidates. The labor organization stated the methods create
complicated and convoluted components that do not adequately serve RPL
candidates in a timely fashion.
In relation to section 330.213(c), the proposed rule only changed
the title of the section from ``Rating and ranking'' to ``Numerical
scoring.'' The regulatory provisions in the proposed rule are the same
as those in the current regulation in section 330.207(c). Because only
the title of the section changed and the rest of the provisions were
not proposed for change, the comment concerning section 330.213(c) is
outside the scope of the proposed rule.
The labor organization also objected to the addition of section
330.213(d), allowing an agency to use alternative rating and selection
procedures (also called category rating) as prescribed in 5 U.S.C. 3319
and part 337 of 5 CFR for the same reason stated above. We are not
deleting section 330.213(d) based on the labor organization's
objection. We proposed to add the alternative rating provision at
section 330.213(d) precisely because we believe it would provide for a
less complicated method for agencies to determine the selection order
for RPL placement priority candidates. Alternative rating has been
established by statute, codified at 5 U.S.C. 3319, and implemented in
part 337, as an acceptable method, in addition to assigning numeric
scores, for assessing qualified candidates for jobs filled through
competitive examination while preserving veterans' preference. Because
agencies may have adopted alternative rating in their competitive
examination process, we are providing the ability to use this method
when determining selection order under the RPL.
One agency commented that it is unclear whether there is an
advantage or benefit to amending section 330.213(e) to allow RPL
registrants to apply
[[Page 67592]]
directly for RPL placement priority, stating that it will create
additional work to track the RPL candidate's application. OPM is not
revising section 330.213(e) based on the comment. We believe adding
this flexibility, which is based on the employee-empowerment model used
in CTAP and ICTAP, will be beneficial to both the agency and the RPL
registrant by helping to ensure a successful placement. For example,
the agency will consider only those RPL registrants who express their
interest and availability by applying for the particular vacancy. The
RPL registrant can exercise placement priority only for those vacancies
in which he or she is interested, instead of being faced with either
accepting a less desirable position or being removed from the RPL.
Subpart F--Agency Career Transition Assistance Plan (CTAP) for Local
Surplus and Displaced Employees
In the Supplementary Information section of the proposed rule, OPM
asked stakeholders to comment on the exceptions to CTAP and ICTAP
selection priority. We received comments from three agencies. Two
agencies believed the exceptions were appropriate, reasonable and
comprehensive. One agency proposed to add in section 330.609 that an
employee with reinstatement eligibility who was selected for a term
appointment from a competitive examination certificate may be
reinstated to a permanent appointment as an exception to CTAP selection
priority. OPM is not adopting the proposal. An individual who accepted
a term appointment is fully aware of the time-limited nature of the
appointment. A CTAP eligible has, by definition, been determined to be
in a surplus position and subject to displacement or has received
notice of separation from the Federal service through no fault of his
or her own. We believe a well-qualified CTAP eligible should retain
selection priority for permanent positions over an individual who
accepted a designated time-limited offer. However, we understand that a
time-limited appointment may be the only option available to a CTAP
eligible for continued employment within an agency during a reduction
in force. For this reason, we have added paragraph (ee) to section
330.609 to provide an additional exception to applying CTAP selection
priority. The new exception allows an agency to convert an employee's
time-limited appointment in the competitive or excepted service to a
permanent appointment in the competitive service if the employee
accepted the time-limited appointment while a CTAP eligible.
One labor organization recommended restoring language in section
330.606(b)(1) that was deleted in the proposed rule. OPM is not
adopting the recommendation. OPM proposed to delete the statement,
``Selective and quality ranking factors cannot be so restrictive that
they run counter to the goal of placing displaced employees'' because
it was unnecessary. We continue to believe the statement is unnecessary
and, in fact, could be misconstrued. The goal of placing, or not
placing, displaced employees is irrelevant to the establishment of
selective and quality ranking factors. (Selective factors are
knowledge, skills, abilities (KSAs), or special qualifications that are
in addition to the minimum requirements in a qualification standard and
are determined to be essential to perform the duties and
responsibilities of a particular position. Quality ranking factors are
KSAs that are expected to enhance performance in a position, but,
unlike selective factors, are not essential for satisfactory
performance. Quality ranking factors are used to evaluate and determine
the best qualified of qualified applicants.) These factors are
considered an employment practice and, therefore, must be developed in
accordance with 5 CFR 300. Part 300 requires a job analysis to
determine the job-related quality ranking factors, or selective
factors, as applicable. The fact that placement assistance candidates
may apply for the position has no relevance to their establishment or
use. These factors are established for the position to be filled before
the job is announced and apply to all individuals who apply to the job
announcement. (For additional information on selective and quality
ranking factors, see part E.6 of the Operating Manual: Qualification
Standards for General Schedule Positions on OPM's Web site at http://www.opm.gov.)
One agency and one labor organization commented on the new
provision in sections 330.606(c) and 330.704(c) allowing an agency to
include the results of a structured scored interview when determining
if a CTAP or an ICTAP eligible is well-qualified. Both the agency and
the labor organization stated that structured interviews were too
subjective for use in making well-qualified determinations. OPM
disagrees with the commenters; however, we are deleting this provision
as unnecessary from both sections in the final regulations. A scored
structured interview is a valid assessment tool that involves
eliciting, observing, evaluating, and scoring responses to pre-
established job-related questions. A structured interview, when used,
is part of an agency's overall assessment process to differentiate the
qualified from the highly- or well-qualified applicants for a
particular position or group of positions. Because the structured
interview is a component of the assessment process, we have determined
it is not necessary to separately address this component from other
components used in the process.
Subpart G--Interagency Career Transition Assistance Plan (ICTAP) for
Displaced Employees
One agency and one labor organization commented on section
330.705(d)(2). This section allows an agency to make additional
selections from an applicant pool previously established by a vacancy
announcement that was open to ICTAP eligibles. The agency states the
provision is confusing as written in that it implies the agency could
readvertise the vacancy without accepting additional ICTAP eligibles'
applications. The labor organization believes reissuing selection
certificates without readvertising for ICTAP eligibles may invite the
specter of inappropriate or suspect activity on the part of an agency
in its execution of ICTAP. OPM is retaining the provision; however, we
revised section 330.705(d)(2) for clarity. As stated in the
Supplementary Information of the proposed rule, under current ICTAP
regulations, an agency must determine if ICTAP eligibles are available
whenever it makes a selection that is not an authorized exception to
ICTAP. For example, an agency issues a vacancy announcement for one
position for which no ICTAP eligibles apply. The agency makes a
selection and appoints the selectee. The selectee resigns 2 weeks
later. The agency's merit promotion plan allows it to re-issue the
selection certificate containing other highly qualified candidates to
make a second selection in this circumstance, but, under the current
regulation, the agency would have to issue a new vacancy announcement
to ensure no ICTAP eligibles are available before it could fill its
position. This provision would allow the agency to fill the position
from the applicant pool established by the original announcement under
which ICTAP eligibles could apply. We see no reason to prohibit the
agency from making the second selection in this limited circumstance.
One agency recommended that section 330.708 be revised to allow
ICTAP selection priority candidates referred for selection on an agency
[[Page 67593]]
certificate to retain their priority until the certificate expires
under agency policies. OPM is not adopting this recommendation because
to do so would provide some ICTAP eligibles with 1 year of eligibility
while providing others with more than 1 year, possibly on the same
agency certificate. As noted in the Supplementary Information of the
proposed rule, the proposed revision to section 330.708 was a
clarification of, not a change to, existing policy. Also as noted in
the Supplementary Information, an agency retains the option to select a
displaced employee whose ICTAP eligibility has expired, provided no
other ICTAP eligibles have selection priority for the vacancy.
One agency suggested section 330.710 retain the example from the
current regulation in section 330.708(a)(2)(ii) that lists a Standard
Form 50 as an example of documentation to establish ICTAP eligibility.
We agree and have retained the Standard Form 50 as an example of proof
of eligibility. Also, in reviewing section 330.710, we noted an
oversight. The proposed provision requires an ICTAP eligible to submit
one of the documents listed under the definition of displaced in
section 330.702 to establish ICTAP selection priority. However,
definition (2) of displaced lists former career or career-conditional
employees separated by reduction in force under part 351 or removed
under part 752 adverse action procedures; no ``document'' is included
in definition (2). We have revised section 330.710 to correct this
oversight.
The final regulation also includes minor edits for readability and
finalizes the conforming changes in parts 302--Employment in the
Excepted Service, 335--Promotion and Internal Placement, 337--Examining
System, and 410--Training of OPM's regulations to revise citations
because of the movement of rules governing vacancy announcements from
subpart G to subpart A. We also clarified in section 330.708 when ICTAP
eligibility terminates for a Military Reserve Technician or National
Guard Technician. By law in 5 U.S.C. 8337(h) and 8456, a Technician's
special annuity terminates upon appointment to a Government position,
declination of an appointment, restoration to earning capacity, or
recovery from the disability. We have added in section 330.708(f) that
ICTAP eligibility for displaced Technicians, as described in section
330.702, terminates when the Technician no longer receives the special
disability retirement annuity under 5 U.S.C. 3887(h) or 8456.
For the convenience of the reader, the final part 330 is published
in its entirety.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects
5 CFR Parts 302, 335, and 337
Government employees.
5 CFR Part 330
Armed forces reserves, District of Columbia, Government employees.
5 CFR Part 410
Education, Government employees.
U.S. Office of Personnel Management.
John Berry,
Director.
0
Accordingly, OPM is amending 5 CFR parts 302, 330, 335, 337, and 410 as
follows:
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
1. The authority citation for part 302 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 8151, E.O. 10577 (3 CFR
1954-1958 Comp., p. 218); Sec. 302.105 also issued under 5 U.S.C.
1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501 also issued under 5
U.S.C. 7701 et seq.
Sec. 302.106 [Amended]
0
2. In Sec. 302.106, remove ``Sec. 330.707 of subpart G'' and add, in
its place, ``part 330, subpart A''.
PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)
0
3. Revise part 330 to read as follows:
Subpart A--Filling Vacancies in the Competitive Service
Sec.
330.101 Definitions.
330.102 Methods of filling vacancies.
330.103 Requirement to notify OPM.
330.104 Requirements for vacancy announcements.
330.105 Instructions on how to add a vacancy announcement to
USAJOBS.
330.106 Funding.
Subpart B--Reemployment Priority List (RPL)
330.201 Purpose.
330.202 Definitions.
330.203 RPL eligibility.
330.204 Agency requirements and responsibilities.
330.205 Agency RPL applications.
330.206 RPL registration timeframe and positions.
330.207 Registration area.
330.208 Duration of RPL registration.
330.209 Removal from an RPL.
330.210 Applying RPL placement priority.
330.211 Exceptions to RPL placement priority.
330.212 Agency flexibilities.
330.213 Selection from an RPL.
330.214 Appeal rights.
Subpart C--[Reserved]
Subpart D--Positions Restricted to Preference Eligibles
330.401 Restricted positions.
330.402 Exceptions to restriction.
330.403 Positions brought into the competitive service.
330.404 Displacement of preference eligibles occupying restricted
positions in contracting out situations.
330.405 Agency placement assistance.
330.406 OPM placement assistance.
330.407 Eligibility for the Interagency Career Transition Assistance
Plan.
Subpart E--Restrictions To Protect Competitive Principles
330.501 Purpose.
330.502 General restriction on movement after competitive
appointment.
330.503 Ensuring agency compliance with the principles of open
competition.
330.504 Exception to the general restriction.
Subpart F--Agency Career Transition Assistance Plan (CTAP) for Local
Surplus and Displaced Employees
330.601 Purpose.
330.602 Definitions.
330.603 Requirements for agency CTAPs.
330.604 Requirements for agency CTAP selection priority.
330.605 Agency responsibilities for deciding who is well-qualified.
330.606 Minimum criteria for agency definition of ``well-
qualified''.
330.607 Applying CTAP selection priority.
330.608 Other agency CTAP responsibilities.
330.609 Exceptions to CTAP selection priority.
330.610 CTAP eligibility period.
330.611 Establishing CTAP selection priority.
330.612 Proof of eligibility.
330.613 OPM's role in CTAP.
Subpart G--Interagency Career Transition Assistance Plan (ICTAP) for
Displaced Employees
330.701 Purpose.
330.702 Definitions.
330.703 Agency responsibilities for deciding who is well-qualified.
330.704 Minimum criteria for agency definition of ``well-
qualified''.
330.705 Applying ICTAP selection priority.
330.706 Other agency ICTAP responsibilities.
330.707 Exceptions to ICTAP selection priority.
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330.708 ICTAP eligibility period.
330.709 Establishing ICTAP selection priority.
330.710 Proof of eligibility.
330.711 OPM's role in ICTAP.
Subpart H--[Reserved]
Subpart I--[Reserved]
Subpart J--Prohibited Practices
330.1001 Withdrawal from competition.
Subpart K--[Reserved]
Subpart L--[Reserved]
Authority: 5 U.S.C. 1104, 1302, 3301, 3302, 3304, and 3330; E.O.
10577, 3 CFR, 1954-58 Comp., p. 218; Section 330.103 also issued
under 5 U.S.C. 3327; Subpart B also issued under 5 U.S.C. 3315 and
8151; Section 330.401 also issued under 5 U.S.C. 3310; Subparts F
and G also issued under Presidential Memorandum on Career Transition
Assistance for Federal Employees, September 12, 1995; Subpart G also
issued under 5 U.S.C. 8337(h) and 8456(b).
Subpart A--Filling Vacancies in the Competitive Service
Sec. 330.101 Definitions.
(a) In this part:
Agency means:
(1) An Executive department listed at 5 U.S.C. 101;
(2) A military department listed at 5 U.S.C. 102;
(3) A Government owned corporation in the executive branch;
(4) An independent establishment in the executive branch as
described at 5 U.S.C. 104; and
(5) The Government Printing Office.
Component means the first major subdivision of an agency,
separately organized, and clearly distinguished in work function and
operation from other agency subdivisions (e.g., the Internal Revenue
Service under the Department of the Treasury or the National Park
Service under the Department of the Interior).
Local commuting area has the meaning given that term in Sec.
351.203 of this chapter.
Permanent competitive service workforce and permanent competitive
service employees mean agency employees serving under career or career-
conditional appointments, in tenure group I or II, respectively.
Position change has the meaning given that term in Sec. 210.102 of
this chapter.
Rating of record has the meaning given that term in Sec. 351.203
of this chapter.
Representative rate has the meaning given that term in Sec.
351.203 of this chapter.
Tenure groups are described in Sec. 351.501 of this chapter.
(b) In this subpart:
Vacancy means a vacant position in the competitive service,
regardless of whether the position will be filled by permanent or time-
limited appointment, for which an agency is seeking applications from
outside its current permanent competitive service workforce.
Sec. 330.102 Methods of filling vacancies.
An agency may fill a vacancy in the competitive service by any
method authorized in this chapter, including competitive appointment
from a list of eligibles, noncompetitive appointment under special
authority, reinstatement, transfer, reassignment, change to lower
grade, or promotion. The agency must exercise its discretion in each
personnel action solely on the basis of merit and fitness, without
regard to political or religious affiliation, marital status, or race,
and veterans' preference entitlements.
Sec. 330.103 Requirement to notify OPM.
An agency must provide the vacancy announcement information to OPM
promptly when:
(a) Filling a vacancy for more than 120 days from outside the
agency's current permanent competitive service workforce, as required
by the Interagency Career Transition Assistance Plan, subpart G of this
part, unless the action to be taken is listed in subpart G as an
exception to that subpart;
(b) Filling any vacancy under the agency's merit promotion
procedures when the agency will accept applications from outside its
permanent competitive service workforce; and
(c) Filling a vacancy by open competitive examination, including
direct hire procedures under part 337 of this chapter, or in the Senior
Executive Service, as required by 5 U.S.C. 3327.
Sec. 330.104 Requirements for vacancy announcements.
(a) Each vacancy announcement must contain the following
information:
(1) Name of issuing agency;
(2) Announcement number;
(3) Position title, series, pay plan, and grade (or pay rate);
(4) Duty location;
(5) Number of vacancies;
(6) Opening date and application deadline (closing date) and any
other information concerning how receipt of applications will be
documented, such as by date of receipt or postmark, and considered,
such as by cut-off dates in open continuous announcements;
(7) Qualification requirements, including knowledge, skills, and
abilities or competencies;
(8) Starting pay;
(9) Brief description of duties;
(10) Basis of rating;
(11) What to file;
(12) Instructions on how to apply;
(13) Information on how to claim veterans' preference, if
applicable;
(14) Definition of ``well-qualified,'' as required by subparts F
and G of this part;
(15) Information on how candidates eligible under subparts F and G
of this part may apply, including required proof of eligibility;
(16) Contact person or contact point;
(17) Equal employment opportunity statement (Agencies may use the
recommended equal employment opportunity statement located on OPM's
USAJOBS website.); and
(18) Reasonable accommodation statement.
(b)(1) An agency may use wording of its choice in its statement
that conveys the availability of reasonable accommodation required by
Sec. 330.104(a)(18). In its reasonable accommodation statement, an
agency may not list types of medical conditions or impairments
appropriate for accommodation.
(2) Agencies may use the recommended reasonable accommodation
statement located on OPM's USAJOBS website.
Sec. 330.105 Instructions on how to add a vacancy announcement to
USAJOBS.
An agency can find the instructions to add a vacancy announcement
to USAJOBS on OPM's Web site at http://www.usajobs.gov. An electronic
file of the complete vacancy announcement must be included within
USAJOBS.
Sec. 330.106 Funding.
Each year, OPM will charge a fee for the agency's share of the cost
of providing employment information to the public and to Federal
employees as authorized by 5 U.S.C. 3330(f).
Subpart B--Reemployment Priority List (RPL)
Sec. 330.201 Purpose.
(a) The Reemployment Priority List (RPL) is a required component of
an agency's placement programs to assist its current and former
competitive service employees who will be or were separated by
reduction in force (RIF) under part 351 of this chapter, or who have
recovered from a compensable work-related injury after more than 1
year, as required by part 353 of this chapter. In filling vacancies, an
agency must give its RPL registrants placement priority for most
competitive service
[[Page 67595]]
vacancies before hiring someone from outside its own permanent
competitive service workforce. An agency may choose to consider RPL
placement priority candidates before other agency permanent competitive
service employees under its Career Transition Assistance Plan (CTAP)
established under subpart F of this part, after fulfilling agency
obligations to its CTAP selection priority candidates.
(b) Agencies must use an RPL to give placement priority to their:
(1) Current competitive service employees with a specific notice of
RIF separation or a Certification of Expected Separation issued under
part 351 of this chapter;
(2) Former competitive service employees separated by RIF under
part 351 of this chapter; and
(3) Former competitive service employees fully recovered from a
compensable injury (as defined in part 353 of this chapter) after more
than 1 year.
(c) All agency components within the local commuting area use a
single RPL and are responsible for giving placement priority to the
agency's RPL registrants.
(d) With prior OPM approval, an agency may operate an alternate
placement program which satisfies the basic requirements of this
subpart, including veterans' preference, as an exception to the RPL
regulations under this subpart. This provision is limited to
reemployment priority because of RIF separation and allows agencies to
adopt different placement strategies that are effective for their
programs and satisfy employee entitlements to reemployment priority.
Sec. 330.202 Definitions.
In this subpart:
Competitive area means a competitive area as described in Sec.
351.402 of this chapter.
Competitive service appointment includes new appointments,
reinstatements, reemployment, and transfers as defined in Sec. 210.102
of this chapter, and conversions as defined in OPM's ``Guide to
Processing Personnel Actions.''
Injury, in relation to the RPL, has the meaning given that term in
Sec. 353.102 of this chapter.
Overseas has the meaning given that term in Sec. 210.102 of this
chapter.
Qualified refers to an RPL registrant who:
(1) Meets OPM-established or -approved qualification standards and
requirements for the position, including minimum educational
requirements, and agency-established selective factors (as this term is
used in OPM's ``Operating Manual: Qualification Standards for General
Schedule Positions'');
(2) Will not cause an undue interruption, as defined in Sec.
351.203 of this chapter, that would prevent the completion of required
work by the registrant 90 days after the registrant is placed in the
position;
(3) Is physically qualified, with or without reasonable
accommodation, to perform the duties of the position;
(4) Meets any special OPM-approved qualifying conditions for the
position; and
(5) Meets any other applicable requirements for competitive service
appointment.
RPL eligible means a current or former employee of the agency who
meets the conditions in either paragraph (a) or (b) of Sec. 330.203.
As used in this subpart, ``RPL eligible'' and ``eligible'' are
synonymous.
RPL placement priority candidate means an RPL registrant who is
qualified and available for a specific agency vacancy.
RPL registrant means an RPL eligible who submitted a timely RPL
application and who is registered on the agency's RPL. As used in this
subpart, ``RPL registrant'' and ``registrant'' are synonymous.
Vacancy means any vacant position to be filled by a competitive
service permanent or time-limited appointment.
Sec. 330.203 RPL Eligibility.
An employee must meet the conditions in either paragraph (a) or (b)
of this section to be an RPL eligible.
(a) For eligibility based on part 351 of this chapter, the
employee:
(1) Must be serving in an appointment in the competitive service in
tenure group I or II;
(2) Must have received either a specific notice of separation or a
Certification of Expected Separation under part 351 of this chapter
that has not been cancelled, rescinded, or modified so that the
employee is no longer under notice of separation;
(3) Must have received a rating of record of at least fully
successful (Level 3) or equivalent as the most recent performance
rating of record; and
(4) Must not have declined an offer under part 351, subpart G, of
this chapter of a position with the same type of work schedule and with
a representative rate at least as high as that of the position from
which the employee will be separated.
(b) For eligibility based on part 353 of this chapter, the employee
or former employee:
(1) Must be serving in, or separated from, an appointment in the
competitive service in tenure group I or II;
(2) Must either have accepted a position at a lower grade or pay
level in lieu of separation or have been separated because of a
compensable injury or disability. (For the purposes of this subpart,
any reference to the position from which an individual was or will be
separated includes the position from which the RPL eligible accepted
the lower graded or pay level position under this paragraph.);
(3) Must have fully recovered more than 1 year after compensation
began; and
(4) Must have received notification from the Office of Workers'
Compensation Programs, Department of Labor, that injury compensation
benefits have ceased or will cease.
Sec. 330.204 Agency requirements and responsibilities.
(a) An agency must establish policies and maintain an RPL for each
local commuting area in which the agency has RPL eligibles.
(b) An agency must give each RPL eligible information about its RPL
program, including Merit Systems Protection Board appeal rights under
Sec. 330.214, when:
(1) The agency issues a RIF separation notice or a Certification of
Expected Separation under part 351 of this chapter; or
(2) The employee accepts a position at a lower grade or pay level
or is separated from the agency because of a compensable work-related
injury.
(c) An agency must register an RPL eligible on the appropriate RPL
no later than 10 calendar days after receiving the eligible's written
application.
(d) Agencies must include in their RPL policies established under
this subpart how they will assist RPL eligibles who:
(1) Request an RPL application;
(2) Request help in completing the RPL application; and
(3) Request help in identifying and listing on the RPL application
those positions within the agency for which they are qualified and
interested.
(e) An agency must give RPL registrants placement priority for
personnel actions as described in Sec. 330.210.
(f) An agency must not remove an individual from the RPL under
Sec. 330.209(a)(1), (b)(1), or (b)(2) without evidence (such as a
Postal Service return receipt signed by addressee only) showing that
the offer, inquiry, or scheduled interview was made in writing. The
written offer, inquiry, or
[[Page 67596]]
scheduled interview must clearly state that failure to respond will
result in removal from the RPL for positions at that grade or pay level
and for positions at lower grades and pay levels for which registered.
Sec. 330.205 Agency RPL applications.
Agencies may develop their own application format which must, at a
minimum:
(a) Allow an RPL eligible to register for positions at the same
representative rate and work schedule (full-time, part-time, seasonal,
or intermittent) as the position from which the RPL eligible was, or
will be, separated; and
(b) Allow an RPL eligible to specify the conditions under which he
or she will accept a position, including grades or pay levels,
appointment type (permanent or time-limited), occupations (e.g.,
position classification series or career groups), and minimum number of
hours of work per week, as applicable.
Sec. 330.206 RPL registration timeframe and positions.
(a) To register, an RPL eligible must:
(1) Meet the eligibility conditions under Sec. 330.203(a) or (b);
(2) Complete an RPL application prescribed by the current or former
agency and keep the agency informed of any significant changes in the
information provided; and
(3) Submit the RPL application on or before the RIF separation date
or, if an RPL eligible under Sec. 330.203(b), within 30 calendar days
after the:
(i) Date injury compensation benefits cease; or
(ii) Date the Department of Labor denies an appeal for continuation
of injury compensation benefits.
(b) RPL eligibles may register and receive placement priority for
positions for which they are qualified and that:
(1) Have a representative rate no higher than the position from
which they were, or will be, separated unless the eligible was demoted
as a tenure group I or II employee in a previous RIF. If the eligible
was so demoted, the eligible can register for positions with a
representative rate up to the representative rate of the position held
on a permanent appointment immediately before the RIF demotion was
effective;
(2) Have no greater promotion potential than the position from
which they were, or will be, separated; and
(3) Have the same type of work schedule as the position from which
they were, or will be, separated.
Sec. 330.207 Registration area.
(a) Except as provided in paragraphs (b) through (e) of this
section, RPL registration is limited to the local commuting area in
which the eligible was, or will be, separated.
(b) If the agency has, or will have, no competitive service
positions remaining in the local commuting area from which the RPL
eligible will be separated under part 351 of this chapter, the agency
may designate a different local commuting area where there are
continuing positions for the RPL eligible to exercise placement
priority. The agency has sole discretion over whether to offer this
option and which local commuting area to designate, taking into
consideration the size and locations of its workforce, available
vacancies, and available funds.
(c) If the RPL eligible agreed to transfer with his or her function
under part 351 of this chapter but will be separated by RIF from the
gaining competitive area, registration is limited to the RPL covering
the gaining competitive area's local commuting area.
(d) For an individual who is eligible under Sec. 330.203(b),
registration is initially limited to the RPL covering the local
commuting area of the position from which the employee was separated.
The agency must establish a fair and consistent policy that permits RPL
eligibles to expand their registration to available local commuting
areas mutually acceptable to the RPL eligible and the agency, up to
agency-wide as required by 5 U.S.C. 8151. (For example, an agency could
consider the number and location(s) of its positions and funding
availability when establishing its policies on expanding
consideration.) In lieu of expanded registration, the agency policy may
provide for the RPL eligible to elect to receive placement priority for
the next best available position in the former local commuting area.
(e) If the RPL eligible was, or will be, separated from an overseas
position (see part 301 of this chapter), RPL registration is limited to
the local commuting area in which the eligible was, or will be,
separated, unless:
(1) The agency approves a written request by the RPL eligible for
registration in the local commuting area from which employed for
overseas service, or in another area within the United States that is
mutually acceptable to the eligible and the agency; or
(2) The agency has a formal program for rotating employees between
overseas areas and the United States, and the RPL eligible's preceding
and prospective overseas service would exceed the maximum duration of
an overseas duty tour in the rotation program. In this case, the
eligible may register for a local commuting area within the United
States that is mutually acceptable to the eligible and the agency.
Sec. 330.208 Duration of RPL registration.
(a) RPL registration expires 2 years from the date of reduction in
force separation under part 351 of this chapter, or 2 years from the
date the agency registers the RPL eligible because of recovery from a
compensable work injury under Sec. 330.206(a)(3)(i) or (ii). An RPL
eligible remains registered for the full 2-year period unless the
registrant is removed from the RPL for a reason specified in Sec.
330.209.
(b)(1) OPM may extend the registration period when an RPL eligible
does not receive a full 2 years of placement priority, for example,
because of an agency's administrative or procedural error.
(2) Either the agency or the RPL eligible may request OPM to extend
the registration period under paragraph (b)(1) of this section. The
request must describe the administrative or procedural error that
caused the RPL eligible to be registered for less than the full 2-year
period. OPM may request additional information either from the agency
or the RPL eligible in connection with any such request. OPM will
notify both the agency and the RPL eligible of the decision to approve
or deny an extension request. OPM's decision regarding an extension
request is not subject to appeal under Sec. 330.214.
Sec. 330.209 Removal from an RPL.
(a) An RPL registrant is removed from the RPL at all registered
grades or pay levels if the registrant:
(1) Declines or fails to reply to the agency's inquiry about an RPL
offer of a career, career-conditional, or excepted appointment without
time limit for a position having the same type of work schedule and a
representative rate at least as high as the position from which the
registrant was, or will be, separated;
(2) Receives a written cancellation, rescission, or modification
to:
(i) The RIF separation notice or Certification of Expected
Separation so that the employee no longer meets the conditions for RPL
eligibility in Sec. 330.203(a); or
(ii) The notification of cessation of injury compensation benefits
so that injury compensation benefits continue;
(3) Separates from the agency for any other reason (such as
retirement, resignation, or transfer) before the RIF separation
effective date. Registration continues if the RPL registrant retires on
[[Page 67597]]
or after the RIF separation effective date. This paragraph does not
apply to an RPL registrant under Sec. 330.203(b);
(4) Requests the agency to remove his or her name from the RPL;
(5) Is placed in a position without time limit at any grade or pay
level within the agency;
(6) Is placed in a position under a career, career-conditional, or
excepted appointment without time limit at any grade or pay level in
any agency; or
(7) Leaves the area covered by an overseas RPL (see 5 CFR part 301)
or is ineligible for continued overseas employment because of previous
service or residence.
(b) An RPL registrant is removed from the RPL at registered grades
or pay levels with a representative rate at and below the
representative rate of a position offered by the agency if the offered
position is below the last grade or pay level held and the registrant:
(1) Declines or fails to reply to the agency's inquiry about an RPL
offer of a career, career-conditional, or excepted appointment without
time limit for a position meeting the acceptable conditions shown on
the RPL registrant's application; or
(2) Declines or fails to appear for a scheduled interview.
(c) An RPL registrant removed from the RPL under paragraph (b) of
this section at lower grades or pay levels than the last grade or pay
level held remains on the RPL for positions with a representative rate
higher than the offered position up to the grade or pay level last
held, unless registration expires or otherwise terminates.
(d) Declination of time-limited employment does not affect RPL
eligibility.
Sec. 330.210 Applying RPL placement priority.
(a) RPL placement priority applies to:
(1) Permanent and time-limited positions to be filled by
competitive service appointment; and
(2) The grade or pay level at which the agency fills the position.
If a position is available at multiple grades or pay levels, placement
priority applies at the grade or pay level at which the position is
ultimately filled.
(b) An agency must not effect a permanent or time-limited
competitive service appointment of another individual if there is an
RPL placement priority candidate registered for the vacancy, unless the
action is listed as an exception in Sec. 330.211.
(c) An agency must document that there are no RPL placement
priority candidates for the vacancy when requesting a competitive
certificate of eligibles under part 332 of this chapter. Similarly, an
agency must offer the vacancy to any RPL placement priority
candidate(s) before effecting an appointment under a noncompetitive
appointing authority, such as under part 315 of this chapter.
(d) Once an agency has ensured there are no RPL placement priority
candidates for a particular vacancy and documents in writing an
employment offer that is accepted by another individual, the agency may
fulfill that employment offer to that individual.
Sec. 330.211 Exceptions to RPL placement priority.
An agency may effect the following personnel actions as exceptions
to Sec. 330.210:
(a) Fill a vacancy with an employee of the agency's current
permanent competitive service workforce through detail or position
change, subject to the requirements of subpart F of this part;
(b) Appoint a 10-point preference eligible through an appropriate
appointing authority;
(c) Appoint a current or former employee exercising restoration
rights under part 353 of this chapter based on return from military
service or recovery from a compensable injury or disability within 1
year;
(d) Appoint a current or former employee exercising other statutory
or regulatory reemployment rights;
(e) Fill a specific position when all RPL placement priority
candidates decline an offer of the position or fail to respond to a
written agency inquiry about their availability;
(f) Convert an employee serving under an appointment that provides
noncompetitive conversion eligibility to a competitive service
appointment, including from:
(1) A Veterans Recruitment Appointment under part 307 of this
chapter;
(2) An appointment under 5 U.S.C. 3112 and part 316 of this chapter
of a veteran with a compensable service-connected disability of 30
percent or more; and
(3) An excepted service appointment under part 213 of this chapter,
such as for persons with disabilities or in the Presidential Management
Fellow Program, the Student Career Experience Program, or the Federal
Career Intern Program;
(g) Reappoint without a break in service to the same position
currently held by an employee serving under a temporary appointment of
1 year or less (only to another temporary appointment not to exceed 1
year or less);
(h) Extend an employee's temporary or term appointment up to the
maximum permitted by the appointment authority or as authorized by OPM;
or
(i) Appoint an individual under an excepted service appointing
authority.
Sec. 330.212 Agency flexibilities.
An agency may provide the following flexibilities within its
written RPL policies established under this subpart:
(a) Allow RPL eligibles to register only for certain sub-areas of a
local commuting area when the agency has components dispersed
throughout a large commuting area. However, an agency cannot deny
registration throughout the local commuting area if the RPL eligible
requests it.
(b) Suspend an RPL registration for all positions, permanent and
time-limited, if the agency is unable, through documented written
means, to contact the RPL registrant; however, the agency must
reactivate an RPL registration when the registrant submits an updated
application or otherwise requests reactivation in writing. Registration
suspension and reactivation do not change the expiration date of the
original registration period set in Sec. 330.208.
(c)(1) Modify the OPM or OPM-approved qualification standard used
to determine if an RPL eligible is qualified for a position, provided
the:
(i) Exception is applied consistently and equitably in filling a
position;
(ii) RPL registrant meets any minimum educational requirements for
the position; and
(iii) RPL registrant has the capacity, adaptability, and special
skills needed to satisfactorily perform the duties and responsibilities
of the position, as determined by the agency.
(2) Any modification to the qualification standard under paragraph
(c)(1) of this section does not authorize a waiver of the selection
order required under Sec. 330.213.
(d) Permit RPL eligibles to register for positions with work
schedules different from the work schedule of the position from which
they were, or will be, separated.
(e) Permit RPL registrants to update their qualifications or
conditions for accepting positions during the RPL registration period.
If an agency provides this flexibility in its RPL policies, the agency
must update the RPL registrant's registration information within 10
calendar days of receipt of the registrant's written request. The
updated registration information would apply only to those vacancies
becoming available after the agency updates the RPL registrant's
registration.
[[Page 67598]]
Sec. 330.213 Selection from an RPL.
(a) Methods. An agency must adopt one of the selection methods in
paragraphs (b), (c), or (d) of this section for a single RPL. The
agency may adopt the same method for each RPL it establishes or may
vary the method by location, but it must adopt a written policy for
each RPL it establishes and maintains. While an agency may not vary the
method used for an individual vacancy, it may at any time change the
selection method for all positions covered by a single RPL.
(b) Retention standing order. For each vacancy to be filled, the
agency places qualified RPL placement priority candidates in tenure
group and subgroup order in accordance with part 351 of this chapter.
In making a selection, an agency may not pass over a candidate in
tenure group I to select from tenure group II and, within a tenure
group, may not pass over a candidate in a higher subgroup to select
from a lower subgroup. Within a subgroup, an agency may select any
candidate without regard to order of retention standing.
(c) Numerical scoring. (1) For each vacancy to be filled, the
agency rates RPL placement priority candidates according to their job
experience and education. The agency must use job-related evaluation
criteria for the position to be filled that can distinguish differences
in qualifications measured and must apply the criteria in a fair and
consistent manner. The agency assigns the candidates a numerical score
of at least 70 on a scale of 100, based on the evaluation criteria
developed under this paragraph. The agency must grant 5 additional
points to veterans' preference eligibles under 5 U.S.C. 2108(3)(A) and
(B), and 10 additional points to veterans' preference eligibles under 5
U.S.C. 2108(3) (C) through (G).
(2) RPL placement priority candidates with an eligible numerical
score are ranked in the following order:
(i) Veterans' preference eligibles having a compensable service-
connected disability of 10 percent or more in the order of their
augmented ratings, unless the position to be filled is a professional
or scientific position at or above the GS-9 level, or equivalent; and
(ii) All other candidates in the order of their augmented ratings.
At each score, candidates entitled to 10-point veterans' preference
will be entered ahead of all other candidates, and those entitled to 5-
point veterans' preference will be entered ahead of those candidates
not entitled to veterans' preference.
(3) The agency must make its selection from among the highest three
candidates available and may not pass over a veterans' preference
eligible to select a nonpreference eligible.
(d) Alternative rating and selection. (1) For each vacancy to be
filled, the agency may use alternative rating and selection procedures
(also called category rating) as described in 5 U.S.C. 3319 and part
337 of this chapter. The agency assesses RPL placement priority
candidates against job-related evaluation criteria and then places them
into two or more pre-defined quality categories.
(2) To use this method, the agency must:
(i) Establish a system for evaluating RPL placement priority
candidates that provides for two or more quality categories;
(ii) Define each quality category through job analysis conducted in
accordance with the ``Uniform Guidelines on Employee Selection
Procedures'' at 29 CFR part 1607 and part 300 of this chapter. Each
quality category must have a clear definition that distinguishes it
from other quality categories; and
(iii) Place candidates into the appropriate quality categories
based upon their job-related competencies, knowledge, skills, and
abilities.
(3) Veterans' preference must be applied as prescribed in 5 U.S.C.
3319(b) and (c)(2). Veterans' preference points as prescribed in
paragraph (c)(1) of this section are not applied under this method.
(4) The agency must make its selection from the highest quality
category in accordance with its category rating policy established
under part 337 of this chapter.
(e) Application-based procedure. (1) An agency may adopt an
application-based procedure which allows RPL registrants to apply
directly for RPL placement priority under an advertised vacancy
announcement. Before using this procedure, the agency must establish
policies and procedures for:
(i) Informing RPL registrants of available vacancies;
(ii) Informing RPL registrants of acceptable application formats,
including how to permanently change initial registration information
and how to apply changes only to the specific vacancy announcement for
which the application is made;
(iii) Determining the method under which the RPL registrant will be
rated and ranked (paragraph (b), (c), or (d) of this section); and
(iv) Informing each RPL registrant who applies under this method
whether he or she was determined to be an RPL placement priority
candidate and the outcome of the selection process, if the candidate
was referred for selection.
(2) RPL registrants may not be removed from the RPL for failure to
apply for a vacancy under this paragraph. Registration continues until
it expires or the registrant is removed from the RPL under Sec.
330.209.
Sec. 330.214 Appeal rights.
An RPL registrant who believes the agency violated his or her
reemployment rights under this subpart by employing another person who
otherwise could not have been appointed properly may appeal to the
Merit Systems Protection Board under the Board's regulations in part
1200 of this chapter.
Subpart C--[Reserved]
Subpart D--Positions Restricted to Preference Eligibles
Sec. 330.401 Restricted positions.
Under 5 U.S.C. 3310, competitive examinations for the positions of
custodian, elevator operator, guard, and messenger (referred to in this
subpart as restricted positions) are restricted to preference eligibles
as long as a preference eligible is available. For more information on
these restricted positions, refer to the OPM Delegated Examining
Operations Handbook.
Sec. 330.402 Exceptions to restriction.
(a) An agency may fill a restricted position with a nonpreference
eligible under the following circumstances:
(1) By competitive examination when no preference eligible applies;
(2) By position change (promotion, demotion, or reassignment) to a
position in the organizational entity (i.e., the part of an agency from
which selections are normally made for promotion or reassignment to the
position in question) in which the nonpreference eligible is employed;
(3) By reemployment in the agency where the nonpreference eligible
was formerly employed when he or she is being appointed from the
Reemployment Priority List under subpart B of this part;
(4) By reinstatement in the agency where the nonpreference eligible
was formerly employed when he or she was last separated because of
disability retirement; or
(5) By reappointment of certain temporary employees as provided for
in part 316 of this chapter.
(b) Except as indicated in paragraph (a) of this section, OPM must
authorize
[[Page 67599]]
any other agency noncompetitive action (e.g., under an authority
specified in part 315 of this chapter) to fill a restricted position
with a nonpreference eligible.
Sec. 330.403 Positions brought into the competitive service.
An agency may convert the appointment of a nonpreference eligible
whose restricted position was brought into the competitive service
under part 316 of this chapter, and who meets the requirements for
conversion under part 315 of this chapter, to career or career
conditional appointment.
Sec. 330.404 Displacement of preference eligibles occupying
restricted positions in contracting out situations.
An individual agency and OPM both have additional responsibilities
when the agency decides, in accordance with the Office of Management
and Budget (OMB) Circular A-76, to contract out the work of a
preference eligible who holds a restricted position. These additional
responsibilities as described in Sec. Sec. 330.405 and 330.406 are
applicable if a preference eligible holds a competitive service
position (other than in the Government Printing Office) that is:
(a) A restricted position as designated in 5 U.S.C. 3310 and Sec.
330.401; and
(b) In tenure group I or II, as defined in Sec. 351.501(b)(1) and
(2) of this chapter.
Sec. 330.405 Agency placement assistance.
An agency that separates a preference eligible from a restricted
position by reduction in force under part 351 of this chapter because
of a contracting out situation covered in Sec. 330.404 must,
consistent with Sec. 330.603, advise the employee of the opportunity
to participate in available career transition programs. The agency is
also responsible for:
(a) Applying OMB's policy directives on the preference eligible's
right of first refusal for positions that are contracted out to the
private sector; and
(b) Cooperating with State units as designated or created under
title I of the Workforce Investment Act of 1998 to retrain displaced
preference eligibles for other continuing positions.
Sec. 330.406 OPM placement assistance.
OPM's responsibilities include:
(a) Assisting agencies in operating positive placement programs,
such as the Career Transition Assistance Plan, which is authorized by
subpart F of this part;
(b) Providing interagency selection priority through the
Interagency Career Transition Assistance Plan, which is authorized by
subpart G of this part; and
(c) Encouraging cooperation between local Federal activities to
assist these displaced preference eligibles in applying for other
Federal positions, including positions with the U.S. Postal Service.
Sec. 330.407 Eligibility for the Interagency Career Transition
Assistance Plan.
(a) A preference eligible who is separated from a restricted
position by reduction in force under part 351 of this chapter because
of a contracting out situation covered in Sec. 330.404 has interagency
selection priority under the Interagency Career Transition Assistance
Plan, which is authorized by subpart G of this part.
(b) A preference eligible covered by this subpart is eligible for
the Interagency Career Transition Assistance Plan for 2 years following
separation by reduction in force from a restricted position.
Subpart E--Restrictions To Protect Competitive Principles
Sec. 330.501 Purpose.
The restrictions in this subpart are designed to prevent
circumvention of the open competitive examination system defined in
Civil Service Rule 1.3 (5 CFR 1.3). These restrictions limit an
appointee's immediate movement to another position after appointment
from a competitive certificate of eligibles.
Sec. 330.502 General restriction on movement after competitive
appointment.
(a) An agency must wait at least 90 days after an employee's latest
nontemporary competitive appointment before the agency may take the
following actions:
(1) Promote an employee;
(2) Transfer, reinstate, reassign, or detail an employee to a
different position; or
(3) Transfer, reinstate, reassign, or detail an employee to a
different geographical area.
(b) Upon written request from an agency, OPM may waive the
restriction against movement to a different geographical area when
moving such an employee is consistent with open competition principles.
Sec. 330.503 Ensuring agency compliance with the principles of open
competition.
OPM will review appointments made from competitive examinations and
subsequent position changes to determine if agencies are complying with
open competition principles. The fact that an agency waited 90 days to
make the changes, as required under this subpart, is not an absolute
protection. If OPM finds that an agency has not complied with these
principles, either in an individual instance or on a program-wide
basis, OPM will order an agency to correct the situation.
Sec. 330.504 Exception to the general restriction.
The restrictions in this subpart do not apply to a person who is
eligible for a competitive appointment from a certificate of eligibles
under part 332 of this chapter.
Subpart F--Agency Career Transition Assistance Plan (CTAP) for
Local Surplus and Displaced Employees
Sec. 330.601 Purpose.
(a) An agency's Career Transition Assistance Plan (CTAP) provides
intra-agency selection priority for the agency's eligible surplus and
displaced employees. This subpart sets forth minimum requirements for
agency plans and establishes requirements for CTAP selection priority.
(b) Consistent with these regulations and at their discretion, an
agency may supplement these requirements to expand career transition
opportunities to its surplus and displaced workers.
(c) With prior OPM approval, an agency may operate an alternate
placement program that satisfies the basic requirements of this subpart
as an exception to CTAP selection priority under this subpart. This
provision allows agencies to adopt different placement strategies that
are effective for their programs while satisfying employee entitlements
to selection priority.
Sec. 330.602 Definitions.
For purposes of this subpart:
Agency means an Executive agency as defined in 5 U.S.C. 105.
CTAP eligible means an agency surplus or displaced employee who has
a current performance rating of record of at least fully successful
(Level 3) or equivalent. As used in this subpart, ``CTAP eligible'' and
``eligible'' are synonymous.
CTAP selection priority candidate means a CTAP eligible who applied
for and was determined to be well-qualified by the agency and whom the
agency must select over any other applicant for the vacancy, unless the
action to be taken is listed as an exception under Sec. 330.609.
Displaced describes an agency employee in one of the following two
categories:
(1) A current career or career-conditional (tenure group I or II)
competitive service employee at grade GS-15 (or equivalent) or below
who:
[[Page 67600]]
(i) Received a reduction in force (RIF) separation notice under
part 351 of this chapter and has not declined an offer under part 351,
subpart G, of this chapter of a position with the same type of work
schedule and a representative rate at least as high as that of the
position from which the employee will be separated; or
(ii) Received a notice of proposed removal under part 752 of this
chapter for declining a directed geographic relocation outside of the
local commuting area (e.g., a directed reassignment or change in duty
station).
(2) A current excepted service employee on an appointment without
time limit at grade level GS-15 (or equivalent) or below who:
(i) Is covered by a law providing both noncompetitive appointment
eligibility to, and selection priority for, competitive service
positions; and
(ii) Received a RIF separation notice under part 351 of this
chapter or a notice of proposed removal under part 752 of this chapter
for declining a directed geographic relocation outside the local
commuting area (e.g., a directed reassignment or a change in duty
station).
Surplus describes an agency employee in one of the following three
categories:
(1) A current career or career-conditional (tenure group I or II)
competitive service employee at grade GS-15 (or equivalent) or below
who received a Certification of Expected Separation under part 351 of
this chapter or other official agency certification or notification
indicating that the employee's position is surplus (for example, a
notice of position abolishment or a notice of eligibility for
discontinued service retirement).
(2) A current excepted service employee on an appointment without
time limit at grade GS-15 (or equivalent) or below who:
(i) Is covered by a law providing both noncompetitive appointment
eligibility to, and selection priority for, competitive service
positions; and
(ii) Received a Certification of Expected Separation under part 351
of this chapter or other official agency certification or notification
indicating that the employee's position is surplus (for example, a
notice of position abolishment or a notice of eligibility for
discontinued service retirement).
(3) A current excepted service employee on a Schedule A or B
appointment without time limit at grade level GS-15 (or equivalent) or
below who is in an agency offering CTAP selection priority to its
excepted service employees and who:
(i) Received a Certification of Expected Separation under part 351
of this chapter or other official agency certification indicating that
the employee is surplus (for example, a notice of position abolishment,
or notice of eligibility for discontinued service retirement); or
(ii) Received a RIF notice of separation under part 351 of this
chapter or a notice of proposed removal under part 752 of this chapter
for declining a directed geographic relocation outside the local
commuting area (e.g., a directed reassignment or a change in duty
station).
Vacancy means a vacant competitive service position at grade GS-15
(or equivalent) or below to be filled for a total of 121 days or more,
including all extensions, regardless of whether the agency issues a
specific vacancy announcement.
Sec. 330.603 Requirements for agency CTAPs.
(a) Each agency must establish a CTAP for its surplus and displaced
employees. Each agency must send its plan, and any modifications, to
OPM, Employee Services, after approval by an authorized agency
official.
(b) Each agency must uniformly and consistently apply its CTAP and
these regulations to all surplus and displaced employees.
(c) In addition to a description of the agency's selection priority
policies required by Sec. 330.604, a CTAP must describe the agency's
policies with regard to how it will provide career transition services
to all its surplus and displaced agency employees, including excepted
service and Senior Executive Service employees. The plan must describe:
(1) The types of career transition services the agency will
provide;
(2) Policies on employees' and former employees' use of transition
services and facilities, including:
(i) Excused absences for transition-related activities;
(ii) Access to services or facilities after separation;
(iii) Orientation sessions on career transition services and
information as described in Sec. 330.608(a) and (b), respectively;
(iv) Retraining policies;
(v) Access to agency CTAP services and resources by all employees,
including those with disabilities, those in field offices, and those in
remote sites;
(vi) Access to other Federal, State, and local resources available
to support career transition for employees with disabilities; and
(vii) Availability of employee assistance programs and services.
(d) An agency's CTAP must also describe the agency's policies and
procedures for its Reemployment Priority List established under subpart
B of this part and the Interagency Career Transition Placement Plan
established under subpart G of this part.
Sec. 330.604 Requirements for agency CTAP selection priority.
In addition to the overall requirements of Sec. 330.603, an
agency's CTAP must describe:
(a) How the agency will provide CTAP selection priority to surplus
and displaced employees for vacancies in the local commuting area
before selecting any other candidate from either within or outside the
agency;
(b) Procedures for reviewing CTAP eligibles' qualifications and
resolving qualification issues or disputes;
(c) Decisions involving discretionary areas under Sec. 330.607
(such as whether excepted service employees will receive CTAP selection
priority, priority of surplus versus displaced employees, designation
of agency components, and selection priority beyond the local commuting
area); and
(d) When and how the agency will inform its surplus and displaced
employees about CTAP eligibility criteria, as required by Sec.
330.608(b), how to apply for agency vacancies, and how to request CTAP
selection priority.
Sec. 330.605 Agency responsibilities for deciding who is well-
qualified.
(a) An agency must define what constitutes a well-qualified
candidate for its specific vacancies, consistent with this subpart, and
uniformly apply that definition to all CTAP eligibles being considered
for the vacancy.
(b) An agency must conduct an independent second review and
document the specific job-related reasons whenever a CTAP eligible is
determined to be not well-qualified under the agency's definition. The
agency must give the CTAP eligible the written results of this review
as required by Sec. 330.608(e).
Sec. 330.606 Minimum criteria for agency definition of ``well-
qualified''.
(a) At a minimum, the agency must define ``well-qualified'' as
having knowledge, skills, abilities, and/or competencies clearly
exceeding the minimum qualification requirements for the vacancy. The
agency definition may or may not equate to the highly or best qualified
assessment criteria established for the vacancy; however, the agency
definition of ``well-qualified'' must
[[Page 67601]]
satisfy the criteria in paragraph (b) of this section.
(b) Under an agency's definition of ``well-qualified,'' the agency
must be able to determine whether a CTAP eligible:
(1) Meets the basic eligibility requirements (including employment
suitability requirements under part 731 of this chapter and any medical
qualifications requirements), qualification standards (including
minimum educational and experience requirements), and any applicable
selective factors;
(2) Is physically qualified, with or without reasonable
accommodation, to perform the essential duties of the position;
(3) Meets any special qualifying conditions of the position;
(4) Is able to satisfactorily perform the duties of the position
upon entry; and
(5) At agency discretion, either:
(i) Rates at or above specified level(s) on all quality ranking
factors; or
(ii) Rates above minimally qualified in the agency's rating and
ranking process.
Sec. 330.607 Applying CTAP selection priority.
(a) An agency must not place any other candidate from within or
outside the agency into a vacancy if there is an available CTAP
selection priority candidate, unless the personnel action to be
effected is an exception under Sec. 330.609.
(b) In accordance with the conditions of part 300, subpart E, of
this chapter, an agency may not procure temporary help services under
that subpart until a determination is made that no CTAP eligible is
available.
(c) CTAP selection priority applies to a vacancy that:
(1) Is at a grade or pay level with a representative rate no higher
than the representative rate of the grade or pay level of the CTAP
eligible's permanent position of record;
(2) Has no greater promotion potential than the CTAP eligible's
permanent position of record;
(3) Is in the same local commuting area as the CTAP eligible's
permanent position of record;
(4) Is filled during the CTAP eligible's eligibility period; and,
if applicable,
(5) Is filled under the same excepted appointing authority as the
CTAP eligible's permanent position of record if the CTAP eligible is an
excepted service employee and the agency CTAP provides selection
priority in the excepted service.
(d) An agency may take actions under Sec. 335.102 of this chapter
to place a permanent competitive service employee into a vacancy if
there are no CTAP eligible employees in the local commuting area or if
no CTAP eligibles apply for the vacancy.
(e) An agency component may place a component employee within the
local commuting area in the vacancy after the component applies CTAP
selection priority to its employees.
(f) If there are two or more CTAP selection priority candidates for
a vacancy, the agency may place any of them. An agency may decide the
specific order of selection among CTAP selection priority candidates.
For example, an agency may:
(1) Provide a displaced candidate higher priority than a surplus
candidate; or
(2) Provide an internal component candidate higher priority than
another component's candidate.
(g) After an agency makes the vacancy available to its CTAP
eligibles and meets its obligation to any CTAP selection priority
candidates, the agency may place into the vacancy any other permanent
competitive service candidate from within its workforce, under
appropriate staffing procedures.
(h) An agency may provide CTAP selection priority to eligible
employees from another commuting area after fulfilling its obligation
to CTAP selection priority candidates in the local commuting area.
(i) An agency may deny a CTAP eligible future selection priority if
the eligible:
(1) Declines an offer of a permanent appointment at any grade or
pay level in the competitive or excepted service; or
(2) Fails to respond within a reasonable period of time, as defined
by the agency, to an offer of a permanent appointment at any grade or
pay level in the competitive or excepted service.
(j) Before appointing an individual from outside the agency's
permanent competitive service workforce, the agency must follow the
requirements of subparts B and G of this part.
Sec. 330.608 Other agency CTAP responsibilities.
(a) An agency must make a career transition orientation session
available to all agency surplus and displaced employees with
information on selection priority under this subpart and subparts B and
G. Such orientation sessions may be in person or web-based through an
agency automated training system or intranet.
(b) An agency must give each agency CTAP eligible written
information on selection priority under its plan, explaining how to
locate and apply for agency vacancies and request selection priority.
The agency may meet this requirement by providing a copy of its CTAP
established under Sec. 330.603.
(c) An agency must take reasonable steps to ensure that agency CTAP
eligibles have access to information on all vacancies, including how
CTAP eligibles can apply, what proof of eligibility is required, and
the agency definition of ``well-qualified'' for the vacancy.
(d) If the agency can document that there are no CTAP eligibles in
a local commuting area, the agency need not post the vacancy for CTAP
eligibles.
(e) An agency must provide a CTAP eligible who applied for a
specific vacancy written notice of the final status of his or her
application, including whether the eligible was determined to be well-
qualified. The agency notice must include the results of the
independent, second review under Sec. 330.605(b), if applicable;
whether another CTAP selection priority candidate was hired; whether
the position was filled under an exception listed in Sec. 330.609; and
whether the recruitment was cancelled.
Sec. 330.609 Exceptions to CTAP selection priority.
An agency may take the following personnel actions as exceptions to
Sec. 330.607:
(a) Reemploy a former agency employee with regulatory or statutory
reemployment rights, including the reemployment of an injured worker
who either has been restored to earning capacity by the Office of
Workers' Compensation Programs, Department of Labor, or has received a
notice that his or her compensation benefits will cease because of full
recovery from the disabling injury or illness;
(b) Reassign or demote an employee under part 432 or 752 of this
chapter;
(c) Appoint an individual for a period limited to 120 or fewer
days, including all extensions;
(d) Reassign agency employees between or among positions in the
local commuting area (sometimes called job swaps) when there is no
change in grade or promotion potential and no actual vacancy results;
(e) Convert an employee currently serving under an appointment
providing noncompetitive conversion eligibility to a competitive
service appointment, including from:
(1) A Veterans Recruitment Appointment under part 307 of this
chapter;
(2) An appointment under 5 U.S.C. 3112 and part 316 of this chapter
of a veteran with a compensable service-
[[Page 67602]]
connected disability of 30 percent or more; and
(3) Make an excepted service appointment under part 213 of this
chapter, such as for persons with disabilities or in the Presidential
Management Fellow Program, the Student Career Experience Program, or
the Federal Career Intern Program;
(f) Effect a personnel action under, or specifically in lieu of,
part 351 of this chapter;
(g) Effect a position change of an employee into a different
position as a result of a formal reorganization, as long as the former
position ceases to exist and no actual vacancy results;
(h) Assign or exchange an employee under a statutory program, such
as subchapter VI of chapter 33 of title 5, United States Code (also
called the Intergovernmental Personnel Act), or the Information
Technology Exchange Program under chapter 37 of title 5, United States
Code;
(i) Appoint an individual under an excepted service appointing
authority;
(j) Effect a position change of an employee within the excepted
service;
(k) Detail an employee within the agency;
(l) Promote an employee for a period limited to 120 or fewer days,
including all extensions;
(m) Effect a position change of a surplus or displaced employee in
the local commuting area;
(n) Effect a position change of an employee under 5 U.S.C. 8337 or
8451 to allow continued employment of an employee who is unable to
provide useful and efficient service in his or her current position
because of a medical condition;
(o) Effect a position change of an employee to a position that
constitutes a reasonable offer as defined in 5 U.S.C. 8336(d) and
8414(b);
(p) Effect a position change of an employee resulting from a
reclassification action (such as accretion of duties or an action
resulting from application of new position classification standards);
(q) Promote an employee to the next higher grade or pay level of a
designated career ladder position;
(r) Recall a seasonal or intermittent employee from nonpay status;
(s) Effect a position change of an injured or disabled employee to
a position in which he or she can be reasonably accommodated;
(t) Effect a personnel action pursuant to the settlement of a
formal complaint, grievance, appeal, or other litigation;
(u) Reassign or demote an employee under Sec. 315.907 of this
chapter for failure to complete a supervisory or managerial
probationary period;
(v) Retain an individual whose position is brought into the
competitive service under part 316 of this chapter and convert that
individual, when applicable, under part 315 of this chapter;
(w) Retain an employee covered by an OPM-approved variation under
Civil Service Rule 5.1 (5 CFR 5.1);
(x) Reemploy a former agency employee who retired under a formal
trial retirement and reemployment program and who requests reemployment
under the program's provisions and applicable time limits;
(y) Extend a time-limited promotion or appointment up to the
maximum period allowed (including any OPM-approved extensions beyond
the regulatory limit on the time-limited promotion or appointment), if
the original action was made subject to CTAP selection priority and the
original announcement or notice stated that the promotion or
appointment could be extended without further announcement;
(z) Transfer an employee between agencies under appropriate
authority during an interagency reorganization, interagency transfer of
function, or interagency mass transfer;
(aa) Appoint a member of the Senior Executive Service into the
competitive service under 5 U.S.C. 3594;
(bb) Transfer an employee voluntarily from one agency to another
under a Memorandum of Understanding or similar agreement under
appropriate authority resulting from an interagency reorganization,
interagency transfer of function, or interagency mass transfer, when
both the agencies and the affected employee agree to the transfer;
(cc) Reassign an employee whose position description or other
written mobility agreement provides for reassignment outside the
commuting area as part of a planned agency rotational program; or
(dd) Transfer or a position change of an employee under part 412 of
this chapter.
(ee) Convert an employee's time-limited appointment in the
competitive or excepted service to a permanent appointment in the
competitive service if the employee accepted the time-limited
appointment while a CTAP eligible.
Sec. 330.610 CTAP eligibility period.
(a) CTAP eligibility begins on the date the employee meets the
definition of surplus or displaced in Sec. 330.602.
(b) CTAP eligibility ends on the date the employee:
(1) Separates from the agency either voluntarily or involuntarily;
(2) Receives a notice rescinding, canceling, or modifying the
notice which established CTAP eligibility so that the employee no
longer meets the definition of surplus or displaced;
(3) Is placed in another position within the agency at any grade or
pay level, either permanent or time-limited, before the agency
separates the employee; or
(4) Is appointed to a career, career-conditional, or excepted
appointment without time limit in any agency at any grade or pay level.
Sec. 330.611 Establishing CTAP selection priority.
(a) CTAP selection priority for a specific agency vacancy begins
when:
(1) The CTAP eligible submits all required application materials,
including proof of eligibility, within agency-established timeframes;
and,
(2) The agency determines the eligible is well-qualified for the
vacancy.
(b) An agency may allow CTAP eligible employees to become CTAP
selection priority candidates for positions in other local commuting
areas only if there are no CTAP selection priority candidates within
the local commuting area of the vacancy.
(c) An agency may deny future CTAP selection priority for agency
positions if the CTAP eligible declines an offer of permanent
appointment at any grade level (whether it is a competitive or excepted
appointment).
Sec. 330.612 Proof of eligibility.
(a) The CTAP eligible must submit a copy of one of the documents
listed under the definition of displaced or surplus in Sec. 330.602 to
establish selection priority under Sec. 330.611.
(b) The CTAP eligible may also submit a copy of a RIF notice with
an offer of another position, accompanied by the signed declination of
the offer. The RIF notice must state that declination of the offer will
result in separation under RIF procedures.
Sec. 330.613 OPM's role in CTAP.
OPM has oversight of CTAP and may conduct reviews of agency
compliance and require corrective action at any time.
Subpart G--Interagency Career Transition Assistance Plan (ICTAP)
for Displaced Employees
Sec. 330.701 Purpose.
The Interagency Career Transition Assistance Program (ICTAP)
provides eligible displaced Federal employees with interagency
selection priority for vacancies in agencies that are filling positions
from outside their respective
[[Page 67603]]
permanent competitive service workforces. The ICTAP selection priority
does not apply in the ICTAP eligible's current or former agency and it
does not prohibit movement of permanent competitive service employees
within an agency, as permitted by subpart F of this part. This subpart
establishes requirements for ICTAP selection priority.
Sec. 330.702 Definitions.
In this subpart:
Agency means an Executive agency as defined in 5 U.S.C. 105.
Displaced describes an individual in one of the following
categories:
(1) A current career or career-conditional (tenure group I or II)
competitive service employee of any agency at grade GS-15 (or
equivalent) or below whose current performance rating of record is at
least fully successful (Level 3) or equivalent and who:
(i) Received a reduction in force (RIF) separation notice under
part 351 of this chapter and has not declined an offer under part 351,
subpart G, of this chapter of a position with the same type of work
schedule and a representative rate at least as high as that of the
position from which the employee will be separated; or
(ii) Received a notice of proposed removal under part 752 of this
chapter for declining a directed geographic relocation outside the
local commuting area (e.g., a directed reassignment or a change in duty
station).
(2) A former career or career-conditional (tenure group I or II)
competitive service employee of any agency at grade GS-15 (or
equivalent) or below whose last performance rating of record was at
least fully successful (Level 3) or equivalent who was either:
(i) Separated by RIF under part 351 of this chapter and did not
decline an offer under part 351, subpart G, of this chapter of a
position with the same type of work schedule and a representative rate
at least as high as that of the position from which the employee was
separated; or
(ii) Removed under part 752 of this chapter for declining a
directed geographic relocation outside the local commuting area (e.g.,
a directed reassignment or a change in duty station).
(3) A former career or career-conditional employee of any agency
who was separated because of a compensable work-related injury or
illness as provided under 5 U.S.C. chapter 81, subchapter I, whose
compensation was terminated and who has received certification from the
former employing agency that it is unable to place the employee as
required by part 353 of this chapter.
(4) A former career or career-conditional (tenure group I or II)
competitive service employee of any agency who retired with a
disability annuity under 5 U.S.C. 8337 or 8451 and who has received
notification from OPM that the disability annuity has been or will be
terminated.
(5) A former Military Reserve Technician or National Guard
Technician receiving a special disability retirement annuity under 5
U.S.C. 8337(h) or 8456 and who has certification of such annuity from
the military department or National Guard Bureau.
(6) A current or former excepted service employee on an appointment
without time limit at grade GS-15 (or equivalent) or below whose
current or last performance rating of record is or was at least fully
successful (Level 3) or equivalent and who:
(i) Has been provided by law with both noncompetitive appointment
eligibility and selection priority for competitive service positions;
and
(ii) Has received a RIF separation notice under part 351 of this
chapter or notice of proposed removal under part 752 of this chapter
for declining a directed geographic relocation outside the local
commuting area (e.g., a directed reassignment or a change in duty
station) or has been separated by RIF procedures or removed for
declining a geographic relocation outside the local commuting area.
ICTAP eligible means an individual who meets the definition of
displaced. As used in this subpart, ``ICTAP eligible'' and ``eligible''
are synonymous.
ICTAP selection priority candidate means an ICTAP eligible who
applied for a vacancy, was determined by the agency to be well-
qualified for that vacancy, and who the agency must select over any
other candidate from outside the agency's current competitive service
workforce for the vacancy, unless the action to be taken is listed as
an exception under Sec. 330.707.
Vacancy means a vacant competitive service position at grade GS-15
(or equivalent) or below to be filled for 121 days or more, including
extensions.
Sec. 330.703 Agency responsibilities for deciding who is well-
qualified.
(a) Agencies must define ``well-qualified'' for their specific
vacancies, consistent with this subpart, and uniformly apply that
definition to all ICTAP eligibles being considered for the vacancy.
(b) Agencies must conduct an independent second review and document
the specific job-related reasons whenever an ICTAP eligible is
determined to be not well-qualified for the vacancy under the agency's
definition. An agency must give the ICTAP eligible the written results
of this review as required by Sec. 330.706(d).
Sec. 330.704 Minimum criteria for agency definition of ``well-
qualified''.
(a) At a minimum, agencies must define ``well-qualified'' as having
knowledge, skills, abilities, and/or competencies clearly exceeding the
minimum qualification requirements for the vacancy. The agency
definition may or may not equate to the highly or best qualified
assessment criteria established for the vacancy; however, the agency
definition of ``well-qualified'' must satisfy the criteria in paragraph
(b) of this section.
(b) Under an agency's definition of ``well-qualified,'' the agency
must be able to determine whether an ICTAP eligible:
(1) Meets the basic eligibility requirements (including employment
suitability requirements under part 731 of this chapter and any medical
qualification requirements), qualification standards (including minimum
educational and experience requirements), and any applicable selective
factors;
(2) Is physically qualified, with or without reasonable
accommodation, to perform the essential duties of the position;
(3) Meets any special qualifying conditions of the position;
(4) Is able to satisfactorily perform the duties of the position
upon entry; and
(5) At agency discretion, either:
(i) Rates at or above specified level(s) on all quality ranking
factors; or
(ii) Rates above minimally qualified in the agency's rating and
ranking process.
Sec. 330.705 Applying ICTAP selection priority.
(a) An agency must not appoint any candidate from outside its
permanent competitive service workforce if there is an ICTAP selection
priority candidate available for the vacancy, unless the personnel
action to be effected is an exception under Sec. 330.707.
(b) ICTAP selection priority applies to a vacancy that:
(1) Is at a grade or pay level with a representative rate no higher
than the representative rate of the grade or pay level of the ICTAP
eligible's current or last permanent position of record;
(2) Has no greater promotion potential than the ICTAP eligible's
current or last permanent position of record;
[[Page 67604]]
(3) Is in the same local commuting area as the ICTAP eligible's
current or last permanent position of record; and
(4) Is filled during the ICTAP eligible's eligibility period.
(c) An agency may appoint any ICTAP selection priority candidate
for a vacancy.
(d)(1) After an agency announces the vacancy and meets its
obligation to any ICTAP selection priority candidates, the agency may
appoint any other candidate from outside its current permanent
competitive service workforce, under appropriate staffing procedures.
(2) An agency may make additional selections or reissue selection
certificates in accordance with its merit promotion program without
readvertising for ICTAP eligibles only if the additional selections are
made from the applicant pool established by the original vacancy
announcement, including readvertisements for the same vacancy, under
which ICTAP eligibles had an opportunity to apply.
(e) An agency may deny an ICTAP eligible future selection priority
for vacancies in that agency if the ICTAP eligible:
(1) Declines an offer of a permanent appointment at any grade or
pay level in the competitive or excepted service; or
(2) Fails to respond within a reasonable period of time, as defined
by the agency, to an offer or official inquiry of availability for a
permanent appointment at any grade or pay level in the competitive or
excepted service.
(f) An agency may deny an ICTAP eligible future selection priority
for a position previously obtained through ICTAP if the eligible was
terminated or removed from that position under part 432 or 752 of this
chapter.
Sec. 330.706 Other agency ICTAP responsibilities.
(a) Before appointing any other candidate from outside the agency's
permanent competitive service workforce, the agency must first fulfill
its obligation to any employees entitled to selection priority under
subparts B and F of this part.
(b) In accordance with the conditions of part 300, subpart E, of
this chapter, an agency may not procure temporary help services under
that subpart until a determination is made that no ICTAP eligible is
available.
(c) An agency must announce all vacancies it intends to fill from
outside its permanent competitive service workforce. Vacancy
announcements must meet the requirements of subpart A of this part.
(d) An agency must provide an ICTAP eligible who applied for a
specific vacancy written notice of the final status of his or her
application, including whether the eligible was determined to be well-
qualified. The agency notice must include the results of the
independent second review under Sec. 330.703(b), if applicable;
whether another ICTAP selection priority candidate was hired; whether
the position was filled under an exception listed in Sec. 330.707; and
whether the recruitment was cancelled.
Sec. 330.707 Exceptions to ICTAP selection priority.
An agency may take the following personnel actions as exceptions to
Sec. 330.705:
(a) Place a current or reinstate a former agency employee with RPL
selection priority under subpart B of this part;
(b) Effect a position change of a current permanent competitive
service agency employee;
(c) Appoint a 10-point veteran preference eligible through an
appropriate appointing authority;
(d) Reemploy a former agency employee with regulatory or statutory
reemployment rights, including the reemployment of an injured worker
who either has been restored to earning capacity by the Office of
Workers' Compensation Programs, Department of Labor, or has received a
notice that his or her compensation benefits will cease because of
recovery from disabling injury or illness;
(e) Appoint an individual for a period limited to 120 or fewer
days, including all extensions;
(f) Effect a personnel action under, or specifically in lieu of,
part 351 of this chapter;
(g) Appoint an individual under an excepted service appointing
authority;
(h) Convert an employee serving under an appointment that provides
noncompetitive conversion eligibility to a competitive service
appointment, including from:
(1) A Veterans Recruitment Appointment under part 307 of this
chapter;
(2) An appointment under 5 U.S.C. 3112 and part 316 of this chapter
of a veteran with a compensable service-connected disability of 30
percent or more; and
(3) An excepted service appointment under part 213 of this chapter,
such as for persons with disabilities or in the Presidential Management
Fellow Program, the Student Career Experience Program, or the Federal
Career Intern Program;
(i) Transfer an employee between agencies under appropriate
authority during an interagency reorganization, interagency transfer of
function, or interagency mass transfer;
(j) Reemploy a former agency employee who retired under a formal
trial retirement and reemployment program and who requests reemployment
under the program's provisions and applicable time limits;
(k) Effect a personnel action pursuant to the settlement of a
formal complaint, grievance, appeal, or other litigation;
(l) Extend a time-limited appointment up to the maximum period
allowed (including any OPM-approved extension past the regulatory limit
on the time-limited appointment), if the original action was made
subject to ICTAP selection priority and the original vacancy
announcement stated that the appointment could be extended without
further announcement;
(m) Reappoint a former agency employee into a hard-to-fill position
requiring unique skills and experience to conduct a formal skills-based
agency training program;
(n) Retain an individual whose position is brought into the
competitive service under part 316 of this chapter and convert that
individual, when applicable, under part 315 of this chapter;
(o) Retain an employee covered by an OPM-approved variation under
Civil Service Rule 5.1 (5 CFR 5.1);
(p) Appoint an appointee of the Senior Executive Service into the
competitive service under 5 U.S.C. 3594;
(q) Assign or exchange an employee under a statutory program, such
as subchapter VI of chapter 33 of title 5, United States Code (also
called the Intergovernmental Personnel Act), or the Information
Technology Exchange Program under chapter 37 of title 5, United States
Code;
(r) Detail an employee to another agency;
(s) Transfer employees under an OPM-approved interagency job swap
plan designed to facilitate the exchange of employees between agencies
to avoid or minimize involuntary separations;
(t) Transfer or reinstate an ICTAP eligible who meets the agency's
definition of ``well-qualified'';
(u) Transfer an employee voluntarily from one agency to another
under a Memorandum of Understanding or similar agreement under
appropriate authority resulting from an interagency reorganization,
interagency transfer of function, or interagency realignment, when both
the agencies and the affected employee agree to the transfer; or
(v) Transfer or a position change of an employee under part 412 of
this chapter.
[[Page 67605]]
Sec. 330.708 ICTAP eligibility period.
(a) ICTAP eligibility begins on the date the employee or former
employee meets the definition of displaced in Sec. 330.702.
(b) ICTAP eligibility ends 1 year from the date of:
(1) Separation by RIF under part 351 of this chapter;
(2) Removal by the agency under part 752 of this chapter for
declining a directed geographic relocation outside the local commuting
area (e.g., a directed reassignment or a change in duty station);
(3) Agency certification that it cannot place the employee under
part 353 of this chapter; or
(4) OPM notification that an employee's disability annuity has
been, or will be, terminated.
(c) ICTAP eligibility ends 2 years after RIF separation if eligible
under subpart D of this part.
(d) ICTAP eligibility also ends on the date the eligible:
(1) Receives a notice rescinding, canceling, or modifying the
notice which established ICTAP eligibility so that the employee no
longer meets the definition of displaced in Sec. 330.702;
(2) Separates from the agency for any reason before the RIF or
removal effective date; or
(3) Is appointed to a career, career-conditional, or excepted
appointment without time limit in any agency at any grade or pay level.
(e) OPM may extend the eligibility period when an ICTAP eligible
does not receive a full 1 year (or 2 years under subpart D of this
part) of eligibility, for example, because of administrative or
procedural error.
(f) ICTAP eligibility for a former Military Reserve Technician or
National Guard Technician described in Sec. 330.702 ends when the
Technician no longer receives the special disability retirement annuity
under 5 U.S.C. 8337(h) or 8456.
Sec. 330.709 Establishing ICTAP selection priority.
ICTAP selection priority for a specific vacancy begins when:
(a) The ICTAP eligible submits all required application materials,
including proof of eligibility, within agency-established timeframes;
and
(b) The agency determines the eligible is well-qualified for the
vacancy.
Sec. 330.710 Proof of eligibility.
(a) The ICTAP eligible must submit a copy of one of the documents
listed under paragraphs (1) or (3) through (6) of the definition of
displaced in Sec. 330.702, as applicable, to establish selection
priority under Sec. 330.709. To establish selection priority under the
paragraph (2) of the definition of displaced in Sec. 330.702, the
ICTAP eligible must submit documentation of the separation or removal,
as applicable, for example, the Notification of Personnel Action, SF
50.
(b) The ICTAP eligible may also submit a copy of the RIF notice
with an offer of another position accompanied by the signed declination
of that offer. The RIF notice must state that declination of the offer
will result in separation under RIF procedures.
Sec. 330.711 OPM's role in ICTAP.
OPM has oversight of ICTAP and may conduct reviews of agency
compliance and require corrective action at any time.
Subpart H--[Reserved]
Subpart I--[Reserved]
Subpart J--Prohibited Practices
Sec. 330.1001 Withdrawal from competition.
An applicant for competitive examination, an eligible on a
register, and an officer or employee in the executive branch of the
Government may not persuade, induce, or coerce, or attempt to persuade,
induce, or coerce, directly or indirectly, a prospective applicant to
withhold filing application, or an applicant or eligible to withdraw
from competition or eligibility, for a position in the competitive
service, for the purpose of improving or injuring the prospects of an
applicant or eligible for appointment. OPM will cancel the application
or eligibility of an applicant or eligible who violates this section,
and will impose such other penalty as it considers appropriate.
Subpart K--[Reserved]
Subpart L--[Reserved]
PART 335--PROMOTION AND INTERNAL PLACEMENT
0
4. The authority citation for part 335 continues 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), and Pub. L. 106-117.
0
5. In Sec. 335.105, remove ``Sec. 330.707 of subpart G'' and add, in
its place, ``part 330, subpart A''.
PART 337--EXAMINING SYSTEM
0
6. The authority citation for part 337 continues to read as follows:
Authority: 5 U.S.C. 1104(a), 1302, 2302, 3301, 3302, 3304,
3319, 5364; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423,
Sept. 4, 1968; and 45 FR 18365, Mar. 21, 1980; 116 Stat. 2135, 2290;
and 117 Stat. 1392, 1665.
Sec. 337.203 [Amended]
0
7. In Sec. 337.203, remove ``subpart G'' and add, in its place,
``subpart A''.
PART 410--TRAINING
0
8. The authority citation for part 410 continues to read as follows:
Authority: 5 U.S.C. 4101, et seq.; E.O. 11348, 3 CFR, 1967
Comp., p. 275.
Sec. 410.307 [Amended]
0
9. In Sec. 410.307:
0
a. In paragraph (c)(3), remove the phrase ``5 CFR 330.604(b) and (f)''
and add in its place the phrase, ``5 CFR 330.602''.
0
b. In paragraph (c)(4), remove the phrase ``5 CFR 330.602'' and add in
its place the phrase, ``5 CFR part 330, subpart F''.
[FR Doc. 2010-27638 Filed 11-2-10; 8:45 am]
BILLING CODE 6325-39-P