This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

34257

Vol. 63, No. 121

Wednesday, June 24, 1998

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 317 and 335

RIN 3206–AH92

Employment in the Senior Executive

Service; Promotion and Internal

Placement

AGENCY: Office of Personnel

Management.

ACTION: Interim regulations with request

for comments.

SUMMARY: The Office of Personnel

Management (OPM) is issuing interim

regulations to correct existing

regulations which are inconsistent with

statutory provisions governing the 120-

day moratorium on involuntary

reassignments of career Senior

Executive Service (SES) appointees

following the appointment of a new

agency head or a new noncareer

immediate supervisor; and to authorize

agencies to reinstate SES career

appointees who have competitive

service reinstatement eligibility to

career appointments in any competitive

service position for which qualified,

including Senior Level (SL) positions.

EFFECTIVE DATE: July 24, 1998.

COMMENTS DUE: August 24, 1998.

ADDRESSES: Send or deliver comments

to Ms. K. Joyce Edwards, Assistant

Director for Executive Policy and

Services, Office of Executive Resources,

Room 6484, U.S. Office of Personnel

Management, 1900 E Street NW.,

Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Mr.

Bede Bender (202) 606–1784.

SUPPLEMENTARY INFORMATION:

120-Day Moratorium on Involuntary

Reassignments

The law in 5 U.S.C. 3395(e)(1)

provides for a 120-day moratorium on

involuntary reassignments of SES career

appointees following the appointment

of a new agency head or the career

appointee’s most immediate supervisor

who is a noncareer appointee and who

has the authority to make an initial

appraisal of the career appointee’s

performance. The law also provides in

§ 3395(e)(2) for an exception to the

moratorium by permitting involuntary

reassignments during the 120-day

period when the reassignment results

from a final unsatisfactory performance

rating issued prior to the appointment

that triggered the moratorium. In

situations which meet this criterion for

exception, it does not matter if a new

agency head or noncareer supervisor

(with authority to make an initial

performance appraisal) is appointed

subsequently, i.e., after issuance of a

final unsatisfactory performance rating,

nor does it matter if there has been a

change in the agency official responsible

for taking the reassignment action (the

language of the current regulation). The

reassignment action may proceed if the

conditions for the exception are met.

In instances where there is a change

in agency head, it is possible that career

appointees will be subject to more than

one moratorium—which almost

certainly will not run concurrently but

may overlap to some degree, i.e.,

appointment of a new agency head often

results in some turnover among

noncareer appointees. When applying

the regulation in these instances, it is

important to look at the starting date of

each moratorium independently, in

relation to the date on which the

unsatisfactory rating was issued. For

example, if a final rating of

unsatisfactory is issued after the

appointment of a new agency head, the

moratorium initiated by that

appointment must be allowed to run its

course before any involuntary

reassignment action can be effected. If a

new noncareer supervisor is appointed

after the new agency head, and also after

the issuance of the unsatisfactory rating

(i.e., when the rating is issued between

the appointment of the new agency head

and the new noncareer supervisor), then

the second moratorium (i.e., the

moratorium triggered by the

appointment of the new noncareer

supervisor) does not apply to an

involuntary reassignment resulting from

the unsatisfactory rating.

Conversion From Career SES to Career

SL Appointment

Senior Level (SL) positions

established under 5 CFR Part 319 are in

the competitive service and are covered

by OPM regulations governing the

competitive service generally. Currently,

under 5 CFR 335.103(c)(1)(vi), agencies

must follow competitive procedures in

agency merit promotion plans in order

to reinstate a person to a permanent or

temporary position at a higher grade or

with more promotion potential than a

position previously held on a

permanent basis in the competitive

service. This means that career SES

members may be reinstated to

competitive service positions only at the

same grade or pay level as the highest

position they held previously in the

competitive service.

By law, SES and SL positions are

above the GS–15 level. In nearly all

cases, career SES appointees have

already competed at least

Governmentwide. This regulatory

change will recognize that fact by

permitting reinstatement of career SES

appointees to competitive service

positions above the GS–15 level.

Waiver of Notice of Proposed

Rulemaking

Pursuant to 5 U.S.C. 553(b)(3)(B), I

find that good cause exists for waiving

the general notice of proposed

rulemaking for the following reasons: (1)

The purpose of the interim regulations

pertaining to the 120-day moratorium

on involuntary reassignments is to

correct existing regulations which are

inconsistent with statutory provisions

governing the involuntary reassignment

of career Senior Executive Service

appointees. Because this change is taken

directly from statute, public comment is

unnecessary. (2) The provision

pertaining to conversion of SES career

to Senior Level career appointments was

originally incorporated in proposed

Promotion and Internal Placement

regulations published in the Federal

Register on February 20, 1996, in

Volume 61, Number 34, page 6327. No

comments were received pertaining to

the proposed regulatory change.

Regulatory Flexibility Act

I certify that this regulation will not

have a significant impact on a

substantial number of small entities
34258 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

because it pertains only to Federal

agencies and employees.

Executive Order 12866, Regulatory

Review

This rule has been reviewed by the

Office of Management and Budget in

accordance with Executive Order 12866.

List of Subjects in 5 CFR Parts 317 and

335

Government employees.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending 5 CFR

part 317 as follows:

PART 317—EMPLOYMENT IN THE

SENIOR EXECUTIVE SERVICE

1. The authority citation for part 317

continues to read as follows:

Authority: 5 U.S.C. 3392, 3393, 3393a,

3395, 3397, 3593, and 3595.

2. In § 317.901, the text in paragraph

(c) and (c)(1) is republished for the

convenience of the reader, paragraph

(c)(2) is revised to read as follows:

§ 317.901 Reassignments.

* * * * *

(c) A career appointee may not be

involuntarily reassigned within 120

days after the appointment of the head

of an agency, or within 120 days after

the appointment of the career

appointee’s most immediate supervisor

who is a noncareer appointee and who

has the authority to make an initial

appraisal of the career appointee’s

performance under subpart C of part 430

of this chapter.

(1) In this paragraph—

(i) Head of an agency means the head

of an executive or military department

or the head of an independent

establishment.

(ii) Noncareer appointee includes an

SES noncareer or limited appointee, an

appointee in a position filled by

Schedule C, or an appointee in an

Executive Schedule or equivalent

position that is not required to be filled

competitively.

(2) These restrictions do not apply to

the involuntary reassignment of a career

appointee under 5 U.S.C. 4314(b)(3)

based on a final performance rating of

‘‘Unsatisfactory’’ that was issued before

the appointment of a new agency head

or a new noncareer supervisor as

defined in paragraph (c)(1) of this

section. If a moratorium is already

underway at the time the final rating is

issued, then that moratorium must be

completed before the reassignment

action can be effected.

PART 335—PROMOTION AND

INTERNAL PLACEMENT

2. The authority citation for part 335

continues to read as follows:

Authority: 5 U.S.C. 3301, 3302, 3330, and

E.O. 10577 (3 CFR 1957–58 Comp., p. 218).

3. In § 335.103(c)(3) the text is

republished for the convenience of the

reader, a new paragraph (c)(3)(vii) is

added to read as follows.

§ 335.103 Agency Promotion Programs.

* * * * *

(c) * * *

(3) Discretionary actions. Agencies

may at their discretion except the

following actions from competitive

procedures of this section:

* * * * *

(vii) Appointments of career SES

appointees with competitive service

reinstatement eligibility to any position

for which they qualify in the

competitive service at any grade or

salary level, including Senior-Level

positions established under 5 CFR Part

319—Employment in Senior-Level and

Scientific and Professional positions.

[FR Doc. 98–16825 Filed 6–23–98; 8:45 am]

BILLING CODE 6325–01–P

DEPARTMENT OF THE INTERIOR

5 CFR Part 3501

43 CFR Part 20

RINS 1090–AA38, 3209–AA15

Supplemental Standards of Ethical

Conduct for Employees of the

Department of the Interior and

Residual Employee Responsibilities

and Conduct Regulations

AGENCY: Department of the Interior

(Department).

ACTION: Final rule.

SUMMARY: The Department of the

Interior, with the concurrence of the

Office of Government Ethics (OGE), is

issuing a final rule for employees of the

Department that supplements the

Standards of Ethical Conduct for

Employees of the Executive Branch

(Standards) issued by OGE. This final

rule is a necessary supplement to the

Standards because it addresses ethical

issues unique to the Department. The

final rule adopts prior interim

regulations as final, with amendments

deleting the provision specifying the

title of an employee to serve as the

Designated Agency Ethics Official and a

typographical correction. The portion of

the interim rule concerning the

Department’s separate employee

responsibilities and conduct regulation

is being amended by this final rule by

changing the reference to the Designated

Agency Ethics Official as well and by

making technical revisions to the

authority citation.

EFFECTIVE DATE: June 24, 1998.

FOR FURTHER INFORMATION CONTACT:

Mason Tsai or Linda T. Sullivan,

Department Ethics Office, (202) 208–

5916.

SUPPLEMENTARY INFORMATION:

I. Background

On August 7, 1992, the Office of

Government Ethics published the

Standards of Ethical Conduct for

Employees of the Executive Branch

(Standards). See 57 FR 35006–35067, as

corrected at 57 FR 48557, 57 FR 52583,

and 60 FR 51667, and amended at 61 FR

42965–42970 (as corrected at 61 FR

48733), 61 FR 50689–50691 (interim

rule revisions adopted as final at 62 FR

12531), and 62 FR 48746–48748, with

additional grace period extensions at 59

FR 4779–4780, 60 FR 6390–6391, 60 FR

66857–66858, and 61 FR 40950–40952.

The Standards, codified at 5 CFR part

2635 and effective February 3, 1993,

establish uniform standards of ethical

conduct for executive branch personnel.

On October 16, 1997, the Department,

with OGE’s concurrence, issued an

interim rule with a request for

comments, setting forth the

Supplemental Standards of Ethical

Conduct for Employees of the

Department of the Interior and revising

the Department’s employee

responsibilities and conduct regulations

at 43 CFR part 20. See 62 FR 53713–

53726. The Department’s separate

employee responsibilities and conduct

regulations at 43 CFR part 20 had

previously been revised in a final rule

published on June 10, 1993 at 58 FR

32446–32449. The interim rule

prescribed a 60-day comment period

and invited comments from all

interested parties. The Department

received no comments in response to its

requests for comments on the interim

rule. The comment period closed on

December 15, 1997.

The Department, with OGE’s

concurrence, is now publishing as final,

with a few minor technical

amendments, the interim Supplemental

Standards of Conduct for Employees of

the Department of the Interior and the

Department’s separate employee

responsibilities and conduct interim

regulations. The Department has

determined that these supplemental

regulations are necessary to the success

of its ethics program.