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

6427

Vol. 66, No. 14

Monday, January 22, 2001

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 330

RIN 3206–AI28

Federal Employment Priority

Consideration Program for Displaced

Employees of the District of Columbia

Department of Corrections

AGENCY: U.S. Office of Personnel

Management.

ACTION: Interim regulations with request

for comments.

SUMMARY: The Office of Personnel

Management (OPM) is issuing interim

regulations to implement provisions of

law affecting the priority consideration

program for certain displaced

employees of the District of Columbia

Department of Corrections seeking

Federal positions. These regulations

also incorporate comments and

suggestions received on the interim

regulations OPM published on August

4, 1998.

DATES: This interim regulation is

effective on January 22, 2001. Written

comments will be considered if received

no later than March 23, 2001.

ADDRESSES: Send or deliver written

comments to: Carol J. Okin, Associate

Director for Employment, Office of

Personnel Management; Suite 6500,

1900 E Street NW., Washington, DC

20415–9000.

FOR FURTHER INFORMATION CONTACT:

Jacqueline Yeatman on (202) 606–0960,

FAX (202) 606–2329, TDD (202) 606–

0023 or by email at jryeatma@opm.gov.

SUPPLEMENTARY INFORMATION:

Initial Public Law and Regulations

The National Capital Revitalization

and Self-Government Improvement Act

(part of the Balanced Budget Act of

1997, sec. 11201, Pub. L. 105–33, 111

Stat. 738, enacted August 5, 1997)

mandated that the Lorton Correctional

Complex be closed by December 31,

2001. Section 11203 of this law gave

priority consideration to employees of

the District of Columbia (DC)

Department of Corrections (DOC)

displaced by this closure. The law

established two priority consideration

programs—one for vacant Bureau of

Prisons law enforcement positions (for

employees meeting the qualification and

suitability requirements for those

positions), and another for most other

Federal vacancies. The Department of

Justice maintains the priority

consideration program for displaced

Department of Corrections employees

interested in Federal Bureau of Prisons

law enforcement positions.

On August 4, 1998, OPM issued

interim regulations with request for

comment to implement the Priority

Consideration Program covering most

vacancies in Federal agencies. Under

the interim regulations, present and

former DC DOC employees receiving a

reduction in force (RIF) separation

notice from the DC Government issued

after August 7, 1997, were eligible for

priority consideration when applying

for certain vacant competitive service

positions in Federal Executive Branch

agencies (unless they had been

appointed to a law enforcement position

in the Department of Justice Bureau of

Prisons). In order to receive this

priority, the DC DOC employee had to

apply and be found well-qualified. This

priority consideration was similar to the

program for Federal employees

described in 5 CFR part 330, subpart

G—Interagency Career Transition

Assistance Plan (ICTAP) for Displaced

Employees. The law provided that this

program would expire one year after

closure of the Lorton correctional

complex.

Second Public Law

After we published the interim

regulations, President Clinton signed

the District of Columbia Courts and

Justice Technical Corrections Act of

1998 (Pub. L. 105–274) on October 21,

1998. This law contained several major

changes affecting the Priority

Consideration Program covering most

Federal vacancies. One significant

change was elimination of the

requirement that DC Corrections

employees be ‘‘well-qualified’’ to get

priority. The other major change in the

law was the establishment of a

competitive service appointing

authority for DC DOC appointees hired

through this program.

As a result of this second statute,

agencies must: (1) Make all new

appointments under this program into

the competitive service; and (2)

retroactively convert/correct

appointments of those already hired

into competitive service appointments.

Because of these significant statutory

changes, we have modified these

regulations and are reissuing them in

interim form with request for comments.

This will allow for timely

implementation while giving users the

opportunity to submit any concerns or

questions they may have about the

revised regulations.

Comments Received on Initial

Regulations Issued

After OPM published the initial

regulations in August, 1998, we

received comments from three Federal

agencies. Two agencies noted the issue

of the order of selection as it applies to

this program. The interim regulations

stated, in § 330.1103(d), that the priority

and order of selection for this program

are similar to ICTAP (the order of

selection and exceptions to ICTAP

appear in § 330.705). The commenting

agencies believed the exceptions to this

program, and the relationship to ICTAP

priority, needed clarification. We have

therefore attempted to clarify this issue

in § 330.1103 of these regulations. In

addition, the current ICTAP regulations,

issued on July 27, 1999, include a crossreference in § 330.705 that specifically

mentions the DC DOC program.

Two agencies asked about the

relationship between meeting the

requirements for a Federal Bureau of

Prisons (BOP) law enforcement position

and this program. These agencies would

prefer that OPM restrict DC DOC

employees to priority under only one

program at a time. However, the second

public law includes a specific provision

making DC DOC employees not yet

‘‘appointed to a Federal Bureau of

Prisons law enforcement position’’

eligible for this program. A DC DOC

employee would meet this definition up

until actual appointment to a BOP law

enforcement position. Therefore, we

have revised § 330.1101 accordingly,

and eliminated paragraph (b) of

§ 330.1103.

6428 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

Another agency asked whether an

employee receiving a time-limited

appointment to a BOP law enforcement

position would lose the right to priority

under this program. We believe that

Congress intended to assist displaced

DC DOC employees in securing

permanent employment, either in a BOP

law enforcement position or in another

Federal position. Therefore, we are

modifying § 330.1101 to make a DC DOC

employee eligible for selection priority

under this program until appointed to a

permanent BOP law enforcement

position. This means that a former DC

DOC employee could accept a timelimited law enforcement position with

the Bureau of Prisons, while still

exercising the right to selection priority

under these regulations for other

Federal employment.

One agency objected to the fact that

employees under this program receive

priority for vacancies nationwide, and

potentially for more than one year,

while priority under ICTAP is limited to

a single commuting area and to one

year. Several agencies were concerned

that they might be required to pay

employee relocation costs, even in cases

where they lack the resources to do so.

The statute for this program, however, is

broad, and precludes us from limiting

the area of consideration or the length

of eligibility. Therefore, we have not

changed these provisions in this

regulation. However, we did find that

some of the references to the program

termination date in the initial regulation

did not precisely match the language in

the law. Therefore, we have modified

references to the program termination

date in sections 330.1102 and 330.1106

to better reflect the statutory language.

Since the current statute requires DC to

close the Lorton Correctional Complex

by December 31, 2001, we expect this

program to expire on December 31,

2002, at the latest.

Two agencies raised additional

questions, including: (1) Will OPM

impose any additional requirements for

agency reports or vacancy

announcements? (2) are competitive

service vacancies lasting 120 days or

less covered by this program? (3) are

there any grade-level requirements? (4)

are DC DOC employees required to

submit a current performance appraisal?

(5) if an employee declines a permanent

offer under this program, will they lose

their eligibility? and (6) does this

program require a second review of

applicants when they are found

ineligible for priority?

OPM considered imposing additional

requirements for announcements or

agency reporting for this program, but

decided against it. The current

regulations under section 330.102

require agencies to notify OPM of

competitive service vacancies lasting

121 days or more. Therefore, we have

added a similar definition of a

‘‘vacancy’’ to these regulations. As for

the grade level requirements, differences

in the DC Government employment

system make it impractical to impose

grade level and performance appraisal

requirements for applicants under this

program. We believe the requirement to

be ‘‘qualified’’ will screen out

candidates with insufficient experience.

We do, however, agree with the

commenters that we need to address

what happens when a candidate

declines a job offer; such a provision

already exists under ICTAP. Therefore,

we are adding language (mirroring the

ICTAP) allowing agencies to terminate

their future consideration of a candidate

under this program if he/she declines,

or fails to respond to, a firm offer. We

also agree that it is important to have a

second review when an applicant

initially fails to meet the program

requirements. Therefore, we have added

this provision to these regulations.

Other Issues Addressed

While we were developing these

regulations, two agencies asked us to

address some additional questions: (1)

Are DC DOC employees entitled to

priority under these regulations for nonlaw enforcement jobs in the Bureau of

Prisons? and (2) Is the DC DOC

employee required to submit proof of

their eligibility for priority like ICTAP

candidates? We clarified these issues by:

(1) Adding language based on the

original law to the definition of vacancy

in § 330.1103 to clarify which Bureau of

Prisons positions are covered; and (2)

adding language to § 330.1104(a)(3)

requiring applicants to provide proof of

their eligibility under this subpart.

One additional issue surfaced during

the development of this regulation. A

number of DC DOC managers and

supervisors were moved into positions

in the newly created Management

Supervisory Service (MSS), making

them, in effect, at-will employees. As a

result, these employees would be

separated by non-RIF termination

procedures under the Lorton closure.

We consulted with DC Government to

find the best way to clarify the

continuing eligibility of these

employees for this priority

consideration program, and modified

section 330.1104 accordingly.

Waiver of Notice of Proposed

Rulemaking and Delay in Effective Date

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

find that good cause exists for waiving

the general notice of proposed

rulemaking because it would be

contrary to the public interest to delay

access to benefits provided by law. Also,

pursuant to 5 U.S.C. 553(d)(3), I find

that good cause exists to waive the delay

in the effective date and make this

amendment effective in less than 30

days. The delay in the effective date is

being waived to give effect to the

benefits extended by the amended

provisions at the earliest practicable

date.

Regulatory Flexibility Act

I certify that this regulation will not

have a significant economic impact on

a substantial number of small entities

because it pertains only to Federal

agencies.

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 Part 330

Armed forces reserves, Government

employees.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending part

330 of title 5, Code of Federal

Regulations, as follows:

PART 330—RECRUITMENT,

SELECTION, AND PLACEMENT

(GENERAL)

1. The authority citation for part 330

is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, 3302; E.O.

10577, 3 CFR 1954–58 Comp., p. 218;

§ 330.102 also issued under 5 U.S.C. 3327;

subpart B also issued under 5 U.S.C. 3315

and 8151; § 330.401 also issued under 5

U.S.C. 3310; subpart G also issued under 5

U.S.C. 8337(h) and 8457(b); subpart K also

issued under sec. 11203 of Pub. Law 105–33

(111 Stat. 738) and Pub. Law 105–274 (112

Stat. 2424); subpart L also issued under sec.

1232 of Pub. L. 96–70, 93 Stat. 452.

2. Section 330.1101 is revised to read

as follows:

§ 330.1101 Purpose.

A displaced employee of the District

of Columbia (DC) Department of

Corrections (DOC) who is separated

from his/her position as a result of the

closure of the Lorton Correctional

Complex, and who has not been

appointed to a permanent Federal

Bureau of Prisons law enforcement

position, is entitled to priority

consideration for other Federal

vacancies when he/she applies and is

found qualified.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 6429

3. Section 330.1102 is revised to read

as follows:

§ 330.1102 Duration.

This program terminates 1 year after

the closing of the Lorton Correctional

Complex.

4. Paragraph (b) of § 330.1103 is

removed and paragraphs (c), (d) and (e)

are redesignated as paragraphs (b), (c)

and (d) and revised to read as follows:

§ 330.1103 Definitions.

* * * * *

(b) Vacancy means any competitive

service position, including non-law

enforcement positions in the Federal

Bureau of Prisons, to be filled for a total

of 121 days or more, including all

extensions, regardless of whether the

agency issues a specific vacancy

announcement. This program does not

apply to law enforcement positions

covered by the Federal Bureau of

Prisons Priority Consideration Program.

(c) Priority consideration means that a

displaced DC DOC employee eligible

under this subpart who applies for a

vacancy and is determined to be

qualified, is accorded similar priority

and order of selection as an eligible

current or former displaced Federal

employee under 5 CFR part 330, subpart

G—Interagency Career Transition

Assistance for Displaced Employees.

Actions which are exempt from the

requirements of 5 CFR part 330 subpart

G will also be exempt from the

requirements of this subpart. Agencies

must follow the order of selection in

§ 330.705(a) in filling vacancies in the

Federal Government with candidates

from outside their own workforce. DC

DOC employees are eligible for this

priority consideration without regard to

any geographical restrictions.

(d) Qualified means an eligible

employee who:

(1) Possesses the knowledge, skills,

and abilities which meet the basic

qualification standards and eligibility

requirements for the position, including

any medical qualifications, suitability,

citizenship, minimum educational and

experience requirements, and any

applicable selective factors;

(2) Is physically qualified, with

reasonable accommodation where

appropriate, to perform the essential

duties of the position;

(3) Meets any special qualifying

condition(s) that OPM has approved for

the position; and

(4) Is able to satisfactorily perform the

duties of the position upon entry.

5. In § 330.1104, paragraphs (a)(1),

(a)(2), (a)(3), (a)(4), (b), (c)(2), (c)(4) and

(c)(5) are revised, and a new paragraph

(c)(6) is added to read as follows:

§ 330.1104 Eligibility.

(a)* * *

(1) Be in receipt of a RIF separation

notice, or a similar notice of nondisciplinary termination from the

Management Supervisory Service,

issued by the DC Department of

Corrections in connection with the

closure of the Lorton Correctional

Complex.

(2) Have not been appointed to a

permanent Federal Bureau of Prisons

law enforcement position;

(3) Apply for a vacancy within the

time frames established by the agency,

and include proof of eligibility;

(4) Be found qualified for the specific

vacancy.

(b) Eligibility for priority

consideration begins: on the date the DC

DOC employee receives or is issued a

specific RIF separation notice, or a

similar notice of non-disciplinary

termination from the Management

Supervisory Service (MSS), issued by

the DC DOC due to the closure of the

Lorton Correctional Complex.

(c) * * *

(2) When the DC DOC employee is no

longer being separated by RIF, or by

similar non-disciplinary termination

from the Management Supervisory

Service, due to the closure of the Lorton

Correctional Complex;

***

(4) When the DC DOC employee

voluntarily separates by resignation or

retirement prior to the RIF effective date

or the non-disciplinary MSS

termination date;

(5) When the DC DOC employee is

separated by a non-RIF involuntary

separation or disciplinary or other MSS

termination not related to the closure of

the Lorton correctional complex; or

(6) Eligibility within a specific agency

may terminate if the employee:

(i) Declines a permanent appointment

offered by the agency (whether

competitive or excepted) when the

employee applied and was found

qualified; or

(ii) Fails to respond within a

reasonable period of time to an offer or

official inquiry of availability from the

agency.

6. Section 330.1105 is revised to read

as follows:

§ 330.1105 Selection.

(a) If two or more individuals eligible

for priority under subpart G of this part

(the Interagency Career Transition

Assistance Plan), under subpart K of

this part (Federal Employment Priority

Consideration for Displaced Employees

of the District of Columbia Department

of Corrections), and/or under subpart L

of this part (Interagency Career

Transition Assistance for Displaced

Former Panama Canal Zone Employees)

apply for a vacancy and are eligible for

priority, the agency has the discretion to

select any of the individuals.

(b) Agencies will conduct a

documented, independent second

review whenever an otherwise eligible

employee fails to meet the ‘‘qualified’’

requirement. The applicant must be

advised in writing of the results of the

second review.

7. The heading and paragraphs (a) and

(b) of § 330.1106 are revised to read as

follows:

§ 330.1106 Appointment.

(a)(1) Selectees under this subpart

receive noncompetitive appointments to

the competitive service under the

authority of Public Law 105–274,

enacted October 21, 1998.

(2) Agencies must retroactively and

noncompetitively convert or correct any

excepted appointments made under

section 11203(b) of Public Law 105–33

to competitive service appointments

under Public Law 105–274. For

employees appointed before October 21,

1998, the conversion will be effective on

October 21, 1998. For employees

appointed on or after October 21, 1998,

agencies must correct the record to

reflect competitive service appointment

as of the original appointment date.

(b) Eligibility for appointment under

this subpart expires 1 year after the

closing of the Lorton Correctional

Complex.

[FR Doc. 01–1487 Filed 1–19–01; 8:45 am]

BILLING CODE 6325–01–U

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 00–110–1]

West Indian Fruit Fly

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are quarantining part of

Cameron County, TX, because of the

West Indian fruit fly and restricting the

interstate movement of regulated

articles from the quarantined area. This

action is necessary on an emergency

basis to prevent the spread of the West

Indian fruit fly to noninfested areas of

the United States.