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

3055

Vol. 60, No. 9

Friday, January 13, 1995

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 211, 230, 300, 301, 307,

310, 316, 330, 333, 339, 340, 351, 353,

and 930

RIN 3206–AG18

Federal Staffing Provisions Supporting

Sunset of the Federal Personnel

Manual

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: This rule places into

regulation a limited number of Federal

staffing provisions that were formerly in

the Federal Personnel Manual (FPM).

The remaining ‘‘provisionally retained’’

portions of the FPM were abolished on

December 31, 1994. This rule deletes or

replaces regulatory language which

references the FPM. Its provisions also

define or clarify terms and describe

procedures used in veterans’ preference,

reductions in force, veterans’

readjustment appointments, term

appointments, seasonal and intermittent

employment, noncompetitive term

appointments based on Peace Corps

service, exemption of certain employees

from coverage of the Part-time Career

Employment Act, physical requirements

for employment, and actions taken

during a national emergency (including

the possible appointment of relatives).

They extend delegations to agencies for

assigning persons serving under

excepted appointments to the work of

positions in the competitive service;

making temporary appointments of

worker trainees pending establishment

of a register (TAPER); and extending

time limits for overseas temporary

appointments. The provisions also

delete requirements for a number of

regular reports. In the case of part 351,

Reduction in Force, and part 353,

Restoration to Duty From Military

Service or Compensable Injury, sections

are reworded for clarity and consistency

with decisions of the Merit Systems

Protection Board.

EFFECTIVE DATE: January 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Diane Bohling, (202) 606–0960 with

questions concerning the changes in 5

CFR 330; Thomas Glennon, (202) 606–

0960 concerning the changes in 5 CFR

351; Raleigh Neville, (202) 606–0830

concerning the changes in 5 CFR 340, 5

CFR 353 and 5 CFR 930; and Mike

Carmichael or Karen Jacobs, (202) 606–

0830, concerning the other changes.

SUPPLEMENTARY INFORMATION: The Vice

President’s National Performance

Review (NPR) recommended that the

Office of Personnel Management (OPM)

‘‘phase out the entire 10,000 page

Federal Personnel Manual (FPM).’’ The

President endorsed the NPR

recommendations.

In planning to abolish the FPM, OPM

met over an extended period with

representatives of agencies and

employee unions to identify which FPM

policies should be dropped, which

should be continued in regulation, and

which should be available as a helpful

reference in an alternative format. The

resulting recommendations were

reviewed and endorsed by the

Interagency Advisory Group of agency

personnel directors and by the National

Partnership Council.

This rule carries out the

recommendations of those groups to

retain selected current policies in the

area of staffing. Regulations to establish

new policies, including implementation

of P.L. 103–353 (veterans’

reemployment rights), will be proposed

separately.

The proposed rule was published in

the Federal Register at 59 FR 55212 on

November 4, 1994, with a request for

comments on or before December 5,

1994. A copy of the proposed rule

(including a line that was inadvertently

dropped in printing) was posted on

November 3, 1994, on OPM’s computer

bulletin board, Mainstreet. At the same

time, all personnel directors of

departments and agencies were notified

by fax of the posting on Mainstreet and

of the pending Federal Register

publication. The publication of the

proposed rule was also announced in a

meeting of the Interagency Advisory

Group of personnel directors.

Comments on the proposed rule were

received from three departments, two

components of departments that had

commented separately, one independent

agency, and one employee union.

We did not adopt suggestions for new

policies not previously in regulation or

in the Federal Personnel Manual.

Specifically, that included suggestions

to drop excepted service temporary

employees from reduction-in-force

tenure group III and to deregulate the

reemployment priority list program.

Although such suggestions will be

considered for future program

improvements, they would have

violated the consensus gained for this

particular rule from the long,

collaborative review process with

agencies and unions. The consensus

was to continue, through this rule, a

limited number of existing staffing

policies that would have ended with the

sunset of the FPM. There was particular

agreement not to change current policies

in the sensitive area of reductions-inforce (RIF) and related reemployment

priority lists (RPL). That consensus was

also likely the reason that few made

comments on the proposed rule and that

comments sought clarification rather

than change

We also did not adopt

recommendations to delete references to

the FPM in sections of the Code of

Federal Regulations outside the scope of

this rule. Those deletions will be

proposed with other regulatory changes.

A department recommended

amending § 301.203 to delegate

authority directly to agencies to approve

time-limit exceptions for overseas

limited appointments. We prefer to

maintain OPM’s role in approving such

delegations until agencies have more

experience with the recent regulatory

changes for temporary employment.

We also did not conclude that

epidemics warrant emergency-indefinite

appointment authority in § 230.402(b).

Questions about terminology in the

proposed rule are addressed here:

‘‘Equivalent grades in the Federal Wage

System’’ are mentioned in § 316.201(b)

because there technically could be

grades in the Federal Wage System other

than just ‘‘WG.’’ Subpart D of $340

eliminates reference to ‘‘on-call’’

employment as redundant; there is no

substantive difference between seasonal

and on-call. The change in terms from

‘‘physically qualified’’ to ‘‘medically
3056 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

qualified’’ in § 930.105(a)(4) conforms to

appropriate terminology in part 339 of

this chapter; it has nothing to do with

drug testing.

Comments did lead us to change

wording in 12 places in this final rule,

either to clarify provisions or to adhere

more closely to existing policy.

In redesignated § 230.402(d)(1) a

reference to the Federal Personnel

Manual (FPM) is deleted.

Since paragraphs were re-lettered in

§ 230.402, redesignated § 230.402(h)(2)

is amended to refer to previous

paragraph (c), not paragraph (b).

A reference to the FPM is deleted

from § 300.104(b).

Added wording in § 307.104 clarifies

the second year appeal rights of persons

holding veterans readjustment

appointments.

A line is restored to § 316.201. It

inadvertently had been dropped from

the proposed rule. It does not change

the thrust of the section, but clarifies

how long a position should last for there

to be a TAPER appointment.

In § 330.202, paragraph (c) is revised

for clarity.

In § 330.203, paragraph (d)(2)(iv) is

revised to clarify that a person is

ineligible for RPL if that person

separates for a reason other than RIF on

the date scheduled for a RIF separation.

Paragraph (d)(3) of § 330.203 is also

reworded to more faithfully reflect

existing policy and to avoid adding a

new requirement for agencies.

In § 330.208, paragraph (a)(1) is

revised to recognize single agency

qualification standards.

Section 333.102 is revised to use

terms consistently.

In § 353.301, paragraph (a) is

corrected so the title and content agree.

Executive Order 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 will not

have a significant economic impact on

a substantial number of small entities

because they apply only to Federal

agencies and employees.

List of Subjects

5 CFR Part 211

Government employees, Veterans.

5 CFR Part 230

Civil defense, Government employees.

5 CFR Part 300

Freedom of information, Government

employees, Reporting and

recordkeeping requirements, Selective

Service System.

5 CFR Part 301

Government employees.

5 CFR Part 307

Government employees, Veterans.

5 CFR Part 310

Government employees.

5 CFR Part 316

Government employees.

5 CFR Part 330

Armed forces reserves, Government

employees.

5 CFR Part 333

Government employees.

5 CFR Part 339

Equal employment opportunity,

Government employees, Health,

Individuals with disabilities.

5 CFR Part 340

Government employees.

5 CFR Part 351

Administrative practice and

procedure, Government employees.

5 CFR Part 353

Administrative practice and

procedure, Government employees.

5 CFR Part 930

Administrative practice and

procedure, Computer technology,

Government employees, Motor vehicles.

Office of Personnel Management.

James B. King,

Director.

Accordingly, 5 CFR parts 211, 230,

300, 301, 307, 310, 316, 330, 333, 339,

340, 351, 353, and 930 are amended as

set forth below.

PART 211—VETERAN PREFERENCE

1. Part 211 is revised to read as

follows:

PART 211—VETERAN PREFERENCE

Sec.

211.101 Purpose.

211.102 Definitions.

211.103 Administration of preference.

Authority: 5 U.S.C. 1302.

§ 211.101 Purpose.

The purpose of this part is to define

veterans’ preference and the

administration of preference in Federal

employment. (5 U.S.C. 2108)

§ 211.102 Definitions.

For purposes of preference in Federal

employment the following definitions

apply:

(a) Veteran means a person who was

separated with an honorable discharge

or under honorable conditions from

active duty in the armed forces

performed—

(1) In a war; or,

(2) In a campaign or expedition for

which a campaign badge has been

authorized; or

(3) During the period beginning April

28, 1952, and ending July 1, 1995; or,

(4) For more than 180 consecutive

days, other than for training, any part of

which occurred during the period

beginning February 1, 1955, and ending

October 14, 1976.

(b) Disabled veteran means a person

who was separated under honorable

conditions from active duty in the

armed forces performed at any time and

who has established the present

existence of a service-connected

disability or is receiving compensation,

disability retirement benefits, or

pensions because of a public statute

administered by the Department of

Veterans Affairs or a military

department.

(c) Preference eligible means veterans,

spouses, widows, or mothers who meet

the definition of ‘‘preference eligible’’ in

5 U.S.C. 2108. Preference eligibles are

entitled to have 5 or 10 points added to

their earned score on a civil service

examination (see 5 U.S.C. 3309). They

are also accorded a higher retention

standing in the event of a reduction in

force (see 5 U.S.C. 3502). Preference

does not apply, however, to inservice

placement actions such as promotions.

(d) Armed forces means the United

States Army, Navy, Air Force, Marine

Corps, and Coast Guard.

(e) Uniformed services means the

armed forces, the commissioned corps

of the Public Health Service, and the

commissioned corps of the National

Oceanic and Atmospheric

Administration.

(f) Active duty or active military duty

means full-time duty with military pay

and allowances in the armed forces,

except for training or for determining

physical fitness and except for service

in the Reserves or National Guard.

(g) Separated under honorable

conditions means either an honorable or

a general discharge from the armed

forces. The Department of Defense is

responsible for administering and

defining military discharges.

§ 211.103 Administration of preference.

Agencies are responsible for making

all preference determinations except for
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3057

preference based on a common law

marriage. Such a claim should be

referred to OPM’s General Counsel for

decision.

PART 230—ORGANIZATION OF THE

GOVERNMENT FOR PERSONNEL

MANAGEMENT

2. The authority citation for part 230

is revised to read as follows:

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

10577; 3 CFR 1954—1958 Comp., p. 218; sec.

230.402 also issued under 5 U.S.C. 1104.

3. In § 230.402, paragraphs (a) through

(h) are redesignated as paragraphs (b)

through (i), respectively; a new

paragraph (a) is added; and newly

redesignated paragraphs (b), (d)(1), and

(h)(2) are revised to read as follows:

§ 230.402 Agency authority to make

emergency-indefinite appointments in a

national emergency.

(a) When a national emergency

exists—(1) Definition. A national

emergency must meet all of the

following conditions:

(i) It was declared by the President or

Congress.

(ii) It involves a danger to the United

States’ safety, security, or stability that

results from specified circumstances or

conditions and that is national in scope.

(iii) It requires a national program

specifically intended to combat the

threat to national safety, security, or

stability.

(2) Termination of a national

emergency. A national emergency no

longer exists if it is officially terminated

by the President or Congress, or if the

specific circumstances, conditions, or

program cited in the original declaration

are terminated or corrected.

(b) Basic authority. Agencies may

make emergency-indefinite

appointments without OPM approval

during any national emergency as

defined in paragraph (a) of this section.

The head of an agency with a defenserelated mission may request OPM’s

approval to make emergency-indefinite

appointments without a declared

national emergency when the President

has authorized the call-up of some

portion of the military reserves for some

military purpose. The request must

demonstrate that normal hiring

procedures cannot meet surge

employment requirements and that use

of emergency-indefinite appointments is

necessary for economy and efficiency.

Except as provided by paragraphs (c)

and (d) of this section, agencies must

make emergency-indefinite

appointments from appropriate registers

of eligibles as long as there are available

eligibles.

* * * * *

(d)(1) Persons who were recruited on

a standby basis prior to the national

emergency;

* * * * *

(h) * * *

(2) The selection procedures of part

333 of this chapter apply to emergencyindefinite employees appointed outside

the register under paragraph (c) of this

section.

* * * * *

PART 300—EMPLOYMENT (GENERAL)

4. The authority citation for part 300

is revised to read as follows:

Authority: 5 U.S.C. 552, 3301, and 3302;

E.O. 10577, 3 CFR 1954–1958 Comp., page

218, unless otherwise noted.

Secs. 300.101 through 300.104 also issued

under 5 U.S.C. 7201, 7204, and 7701; E.O.

11478, 3 CFR 1966–1970 Comp., page 803.

Sec. 300.301 also issued under 5 U.S.C.

1104 and 3341.

Secs. 300.401 through 300.408 also issued

under 5 U.S.C. 1302(c), 2301, and 2302.

Secs. 300.501 through 300.507 also issued

under 5 U.S.C. 1103(a)(5).

Sec. 300.603 also issued under 5 U.S.C.

1104.

5. In § 300.104, paragraph (b) is

revised to read as follows:

§ 300.104 Appeals, grievances and

complaints.

(b) Examination ratings. A candidate

may file an appeal with the Office from

his or her examination rating or the

rejection of his or her application,

except that, where the Office has

delegated examining authority to an

agency, the candidate should appeal

directly to that agency. The appeal and

supporting documents shall be filed

with the agency office that determined

the rating.

* * * * *

6. In § 300.201, paragraphs (b) through

(e) are redesignated as paragraphs (c)

through (f), respectively and a new

paragraph (b) is added to read as

follows:

§ 300.201 Examinations.

* * * * *

(b) The Office maintains control over

the security and release of testing and

examination materials which it has

developed and made available to

agencies for initial competitive

appointment or inservice use unless the

materials were developed specifically

for an agency through a reimbursable

contractual agreement. These testing

and examination materials include, and

are subject to the same controls as, those

described in paragraphs (a)(1) and (a)(2)

of this section.

7. A new subpart C, consisting of

§ 300.301, is added to read as follows:

Subpart C—Details of Employees

Sec.

300.301 Authority.

§ 300.301 Authority.

(a) In accordance with 5 U.S.C. 3341,

an agency may detail an employee in

the competitive service to a position in

either the competitive or excepted

service.

(b) In accordance with 5 U.S.C. 3341,

an agency may detail an employee in

the excepted service to a position in the

excepted service and may also detail an

excepted service employee serving

under Schedule A, Schedule B, or the

Veterans Readjustment Act, to a

position in the competitive service.

(c) Any other detail of an employee in

the excepted service to a position in the

competitive service may be made only

with the prior approval of the Office of

Personnel Management or under a

delegated agreement between the agency

and OPM.

8. In § 300.407, paragraph (b) is

revised to read as follows:

§ 300.407 Documentation.

* * * * *

(b) When requested by OPM, agencies

will provide reports on the use of

commercial recruiting firms, based on

the records required in paragraph (a) of

this section.

PART 301—OVERSEAS EMPLOYMENT

9. The authority citation for part 301

continues to read as follows:

Authority: 5 U.S.C. 3301, 3302; E.O. 10577,

3 CFR, 1954–1958 Comp., p. 218, as amended

by E.O. 10641, 3 CFR, 1954–1958 Comp., p.

274, unless otherwise noted.

10. In § 301.203, paragraph (c) is

revised and paragraph (d) is added to

read as follows:

§ 301.203 Duration of appointment.

* * * * *

(c) An agency may make an overseas

limited appointment for 1 year or less to

meet administrative needs for temporary

employment. An agency may extend

such an appointment for up to a

maximum of 1 additional year.

(d) Upon request from the

headquarters level of a Department or

agency, OPM may approve, or delegate

to agencies the authority to approve,

exceptions to the time limits set out in

paragraph (c) of this section.
3058 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

PART 307—VETERANS

READJUSTMENT APPOINTMENTS

11. The authority citation for part 307

continues to read as follows:

Authority: 5 U.S.C. 3301, 3302; E.O. 11521,

3 CFR, 1970 Comp., p. 912; 38 U.S.C. 4214.

§ 307.102 [Amended]

12. In § 307.102, paragraph (c) is

removed.

13. Section 307.103 is revised to read

as follows:

§ 307.103 Appointing authority.

(a) An agency may appoint any

veteran who served on active duty after

August 4, 1964, who meets the basic

veterans readjustment eligibility

provided by law.

(b) Appointments are subject to

investigation by OPM. A law, Executive

order, or regulation which disqualifies a

person for appointment in the

competitive service also disqualifies a

person for a veterans readjustment

appointment.

14. Section 307.104 is added to read

as follows:

§ 307.104 Appeal rights.

A veterans readjustment appointment

(VRA) is an excepted appointment to a

position otherwise in the competitive

service. Veterans readjustment

appointees have the same appeal rights

as excepted service employees under

parts 432 and 752 of this chapter, except

the appointees are also entitled to

limited appeal protection during their

1st year of service as set forth in

§ 315.806 of this chapter. This means

that a VRA appointee with more than 1

year of current continuous service, who

is also a preference eligible, can appeal

an adverse action to the Merit Systems

Protection Board. Nonpreference

eligibles serving under VRA

appointments do not get such protection

until they are converted to the

competitive service.

PART 310—EMPLOYMENT OF

RELATIVES

15. The authority citation for part 310

continues to read as follows:

Authority: 5 U.S.C. 3302, 7301; E.O. 10577,

3 CFR, 1954–1958 Comp., p. 218; E.O. 11222,

3 CFR 1964–1965 Comp., p. 306.

16. Section 310.202 is revised to read

as follows:

§ 310.202 Exceptions.

When necessary to meet urgent needs

resulting from an emergency posing an

immediate threat to life or property, or

a national emergency as defined in

§ 230.402(a)(1) of this title, a public

official may employ relatives to meet

those needs without regard to the

restrictions in section 3110 of title 5,

United States Code, and this part.

Appointments under these conditions

are temporary not to exceed 1 month,

but may be extended for a 2nd month

if the emergency need still exists.

PART 316—TEMPORARY AND TERM

EMPLOYMENT

17. The authority citation for part 316

is revised to read as follows:

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

10577 (3 CFR 1954–1958 Comp. p. 218);

§ 316.302 also issued under 5 U.S.C. 3304(c),

22 U.S.C. 2506 (94 Stat. 2158); 38 U.S.C.

2014, and E.O. 12362, as revised by E.O.

12585; § 316.402 also issued under 5 U.S.C.

3304(c) and 3312, 22 U.S.C. 2506 (93 Stat.

371), E.O. 12137, 38 U.S.C. 2014, and E.O.

12362, as revised by E.O. 12585 and E.O.

12721.

18. Section 316.201 is revised to read

as follows:

§ 316.201 Purpose and duration.

(a) General. OPM may authorize an

agency to fill a vacancy by temporary

appointment pending establishment of a

register (TAPER appointment) when

there are insufficient eligibles on a

register appropriate for filling the

vacancy in a position that will last for

a period of more than 1 year and the

public interest requires that the vacancy

be filled before eligibles can be certified.

The agency must follow the provisions

of part 333 of this chapter when making

a TAPER appointment.

(b) Specific authority for WorkerTrainee positions. Agencies may make

TAPER appointments to positions at

GS–1, WG–1, and WG–2 and may

reassign or promote the appointees to

other positions through grade GS–3,

WG–4, or equivalent grades in the

Federal Wage System.

19. Section 316.301 is revised to read

as follows:

§ 316.301 Purpose and duration.

An agency may make a term

appointment for a period of more than

1 year but not more than 4 years when

the need for an employee’s services is

not permanent. Reasons for making a

term appointment include, but are not

limited to: project work, extraordinary

workload, scheduled abolishment,

reorganization, or contracting out of the

function, uncertainty of future funding,

or the need to maintain permanent

positions for placement of employees

who would otherwise be displaced from

other parts of the organization.

20. In § 316.302, paragraph (c)(3) is

revised to read as follows:

§ 316.302 Selection of term employees.

* * * * *

(c) * * *

(3) A person eligible for career or

career-conditional employment under

§§ 315.601, 315.605, 315.606, 315.607,

316.608, 315.609, or 315.703 of this

chapter.

* * * * *

PART 330—RECRUITMENT,

SELECTION, AND PLACEMENT

(GENERAL)

21. The authority citation for part 330

continues 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 H also issued under 5

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

issued under sec. 4432 of Pub. Law 102–484.

22. Section 330.201 is revised to read

as follows:

§ 330.201 Establishment and maintenance

of RPL.

(a) The reemployment priority list

(RPL) is the mechanism agencies use to

give reemployment consideration to

their former competitive service

employees separated by reduction in

force (RIF) or fully recovered from a

compensable injury after more than 1

year. The RPL is a required component

of agency positive placement programs.

In filling vacancies, the agency must

give RPL registrants priority

consideration over certain outside job

applicants and, if it chooses, also may

consider RPL registrants before

considering internal candidates.

(b) Each agency is required to

establish and maintain a reemployment

priority list for each commuting area in

which it separates eligible competitive

service employess by RIF or when a

former employee recovers from a

compensable injury after more than 1

year, except as provided in paragraph

(c) of this section. For purposes of this

subpart, agency means Executive agency

as defined in 5 U.S.C. 105. All

components of an agency within the

commuting area utilize a single RPL and

are responsible for giving priority

consideration to the RPL registrants.

(c) An agency need not maintain a

distinct RPL for employees separated by

reduction in force if the agency operates

a placement program for its employees

and obtains OPM concurrence that the

program satisfies the basic requirements

of this subpart. The intent of this

provision is to allow agencies to adopt

different placement strategies that are

effective for their particular programs
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3059

yet satisfy legal entitlements to priority

consideration in reemployment.

23. In § 330.202, paragraph (a)(1) is

revised and paragraph (c) is added to

read as follows:

§ 330.202 Application.

(a)(1) To be entered on the RPL, an

eligible employee under § 330.203 must

complete an application prescribed by

the employing agency and inform the

agency of any significant changes in the

information provided. This application

must provide for the employee to

specify the conditions under which he

or she will accept employment,

including grade, occupation, and

minimum hours or work per week, in

addition to positions at the same

representative rate and type of work

schedule (e.g., full-time, part-time,

seasonal, intermittent, on-call, etc.) as

the position from which the employee

was or will be separated. Registration

may take place as soon as a specific

notice of separation under part 351 of

this chapter, or a Certification of

Expected Separation as provided in

§ 351.807 of this chapter, has been

issued. The employee must submit the

application within 30 calendar days

after the RIF separation date. An

employee who fails to submit a timely

application is not entitled to be placed

on the RPL. If an agency has

components scattered throughout a large

commuting area, the agency may allow

eligibles to indicate their availability

only for certain sub-areas within the

commuting area. However, the agency

cannot deny consideration throughout

the entire commuting area if the eligible

wants it.

* * * * *

(c) Agencies should be prepared to

assist employees, when requested, in

identifying and listing on the

reemployment priority list (RPL)

application those positions within the

agency for which the employee qualifies

and is interested.

24. In § 330.203, paragraphs (a)(4) and

(c) are revised and paragraph (d), (e), (f),

and (g) are added to read as follows:

§ 330.203 Eligibility due to reduction in

force.

(a) * * *

(4) Have not declined an offer under

subpart G of part 351 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 or will be

separated.

* * * * *

(c) A tenure group I employee is

eligible for the RPL for 2 years, and a

tenure group II employee is eligible for

1 year, from the date the employee is

entered on the RPL.

(d)(1) When an individual declines an

offer of career, career-conditional, or

excepted appointment without time

limit or fails to reply to an inquiry,

under this subpart, and the position

meets the acceptable conditions shown

in his or her application, he or she loses

RPL consideration for all positions with

a representative rate at or below that

grade. However, subject to paragraph

(d)(2)(iii) of this section, the individual

retains eligibility for positions with a

higher representative rate up to the last

grade held.

(2) Also, an individual is taken off the

RPL before the period of eligibility

expires when the individual:

(i) Requests removal;

(ii) Receives a career, careerconditional, or excepted appointment

without time limit in any agency;

(iii) Declines an offer of career, careerconditional, or excepted appointment

without time limit or fails to reply to an

inquiry, under this subpart, by the

employee’s former agency, concerning a

specific position having a representative

rate at least as high, and with the same

type of work schedule, as that of the

position from which the person was or

will be separated.

(iv) Separates for some other reason

(such as retirement, resignation, etc.)

before the date the RIF separation would

take effect. An employee who retires on

or after the date of separation by RIF

does not lose RPL eligibility.

(v) Declines an interview or fails to

appear for a scheduled interview only if

notified in advance of this requirement

and the subsequent consequences.

(vi) In the case of an individual

enrolled on an RPL for Alaska or

overseas, leaves the area covered by that

RPL or becomes disqualified for

overseas employment because of

previous service or residence.

(3) When an agency removes an

individual from the RPL because of

failure to reply to a specific permanent

job offer or an inquiry of availability for

a specific permanent vacancy, the

agency must have evidence to show that

a written offer or inquiry was made (e.g.,

a Postal Service ‘‘return receipt signed

by addressee only’’). The written offer or

inquiry to the individual must clearly

state that failure to respond will result

in loss of RPL consideration for that

grade or higher grades, if eligible.

(e) Declination of nonpermanent

employment has no effect on RPL

eligibility or continuation of RPL

consideration.

(f) Consideration for all jobs (whether

permanent or nonpermanent) is

suspended for any individual who

cannot be reached by the agency.

Submission of an updated application

can reinstate consideration, but the

period of eligibility is not extended

beyond the original time set in

paragraph (c) of this section.

(g) Eligibles who had agreed to

transfer with their function but were

separated by RIF from the gaining

competitive area are registered on the

RPL of the gaining competitive area.

25. In § 330.204, paragraphs (a) and

(b)(3) are revised and paragraph (c) is

added to read as follows:

§ 330.204 Eligibility due to compensable

injury.

(a) A competitive service employee in

tenure group I or II who is separated (or

who accepts a lower graded position in

lieu of separation) because of a

compensable injury of disability (as

defined in part 353 of this chapter) who

has fully recovered more than 1 year

after compensation began is entitled to

be placed on the RPL provided the

individual applies within the

timeframes addressed in § 330.202. Part

353 of this chapter contains information

on eligibility.

* * * * *

(b) * * *

(3) Declines an offer or fails to

respond to an inquiry of availability

about a specific position that is the same

as or equivalent to the position from

which separated.

(c) A former employee must request

reemployment consideration with the

time limits set in § 330.202.

26. Section 330.205 is revised to read

as follows:

§ 330.205 Employment restrictions.

(a) The restrictions in paragraph (b) of

this section apply to the filling of all

competitive service vacancies,

regardless of whether an agency plans to

make a temporary, term, or permanent

appointment. This means an agency

must consider RPL registrants for

nonpermanent as well as permanent

positions when they have indicated

such interest on their RPL application.

(b) When a qualified individual is

available on an agency’s RPL, the

agency may not make a final

commitment to an individual not on the

RPL to fill a permanent or temporary

competitive service position by:

(1) A new appointment, unless the

individual appointed is a qualified 10-

point preference eligible; or

(2) Transfer or reemployment, unless

the individual appointed is a preference

eligible, is exercising restoration rights

under part 353 of this chapter based on

return from military service or recovery

from a compensable injury or disability
3060 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

within 1 year, or is exercising other

statutory or regulatory reemployment

rights.

(c) Paragraph (b) of this section does

not apply to actions involving

employees on an agency’s rolls, as

authorized in paragraphs (c) (1), (2), and

(3) of this section, or in filling a specific

position:

(1) When all qualified individuals on

the RPL decline an offer of a specific

position or fail to respond to an official

agency inquiry about their availability

for it; or

(2) By a current, qualified employee of

the agency through:

(i) Detail or position change

(promotion, demotion, reassignment); or

(ii) Conversion to competitive

appointment of employees currently

serving under appointments that carry a

noncompetitive conversion eligibility

(e.g., Veterans Readjustment Appointee,

30 percent disabled veterans, disabled

employees under Schedule A

appointment, Presidential Management

Interns, cooperative education students

under Schedule B appointment, and

TAPERS); or

(iii) Reappointment 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 and not to

a permanent appointment); or

(iv) Extension of an employee’s

temporary appointment up to the

maximum permitted by the

appointment authority or as authorized

by OPM.

(3) By a 30-day special needs

appointment or 700 hour temporary

appointment of a severely disabled or

mentally restored individual, when the

agency’s staffing policies provide for

these exceptions.

(d) An agency must clear the RPL at

the grade level at which it fills a

position (regardless of the full

performance level). Similarly, if an

agency advertises a position at multiple

grade levels, it must clear the RPL only

at the grade level at which the position

is ultimately filled.

(e) Once an agency has cleared its RPL

and made a final employment

commitment to an individual, the later

registration of another employee on the

RPL does not prevent the fulfillment of

the original commitment, regardless of

when the individual actually enters on

duty.

(f) An agency may make an exception

to this section and appoint an

individual not on the RPL as authorized

by § 330.207(d).

(g) When submitting a request for

referral of eligibles, an agency is

required to indicate that no qualified

RPL registrant is available for the

vacancy and therefore the agency may

make a new appointment. Similarly, an

agency must clear its RPL before making

appointments under a direct-hire

authority, which includes the

Outstanding Scholar provision, or

delegated examining authority.

27. In § 330.206, paragraphs (a)(1),

(a)(2), and (b) are revised to read as

follows:

§ 330.206 Job consideration.

(a)(1) An eligible employee under

§ 330.203 is entitled to consideration for

positions in the commuting area for

which qualified and available that are at

no higher grade (or equivalent), have no

greater promotion potential than the

position from which the employee was

or will be separated, and have the same

type of work schedule. In addition, an

employee is entitled to consideration for

any higher grade previously held on a

nontemporary basis in the competitive

service from which the employee was

demoted under part 351 of this chapter.

(2) An employee is considered for

positions having the same type of work

schedule as the position from which

separated except that the agency, at its

discretion, may adopt provisions

permitting employees to request

consideration for other work schedules

in addition to that formerly held.

* * * * *

(b)(1) An eligible employee under

§ 330.205 is placed on the RPL for

reemployment consideration for his or

her former position or an equivalent

one. If the individual cannot be placed

in such a position in the former

commuting area, he or she is entitled to

priority consideration for an equivalent

position elsewhere in the agency at the

time and in a manner as the agency

determines will provide the individual

with maximum opportunities for

consideration.

(2) In lieu of expanded consideration

in other locations, an individual who

cannot be placed in his or her former or

equivalent position in the former

commuting area may elect to be

considered for the next best available

position in the former commuting area.

28. In § 330.207, paragraphs (a), (b),

(c)(1), and (d) are revised to read as

follows:

§ 330.207 Selection from RPL.

(a) Options. An agency must adopt

one of the selection methods in

paragraphs (b) and (c) of this section for

use in operating 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. After a

method is adopted, the agency uses that

method in filling all positions. While an

agency may not vary the method used

by individual vacancy, it may at any

time switch selection methods for

employees enrolled on the RPL.

(b) Retention standing order. For each

vacancy to be filled, the agency shall

place qualified individuals in group and

subgroup order in accordance with part

351 of this chapter. In making a

selection, an agency may not pass over

an individual in group I to select from

group II and, within a group, may not

pass over an individual in a higher

subgroup to select from a lower

subgroup. Within a subgroup, an agency

may select an individual without regard

to order of retention standing. A person

has no greater priority for the grade or

position from which separated than any

other person on the list who is qualified

for the vacancy. An agency may make

an exception to this selection order only

in accordance with paragraph (d) of this

section.

(c)(1) Rating and ranking. For each

vacancy to be filled, the agency rates

qualified individuals according to their

job experience and education. To do

this, an agency shall develop job-related

evaluation procedures capable of

distinguishing differences in

qualifications measured, which shall be

applied in a fair and consistent manner.

Based on these procedures, the agency

shall assign qualified individuals a

numerical score of at least 70 on a scale

of 100. The agency shall grant 5

additional points to preference eligibles

under section 2108(3)(A) and (B) of title

5, United States Code, and 10 additional

points to preference eligibles under

section 2108(3) (C) through (G) of that

title.

* * * * *

(d) Exceptions. An agency may make

an exception to this subpart and appoint

an individual who is not on the RPL or

has lower standing than others on the

RPL. The exception may be granted only

when necessary to obtain an employee

for duties that cannot be taken over

without undue interruption (as defined

in § 351.203 of this chapter) to the

agency by an individual who is on the

RPL or has higher standing than the one

appointed. The agency shall notify, in

writing, each individual on the RPL

who is adversely affected by an

appointment under this paragraph of the

reasons for the exception and of the

right of appeal to the Merit Systems

Protection Board.

29. In § 330.208, paragraphs (a)(1) and

(b) introductory text are revised and
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3061

paragraph (a)(4) is added to read as

follows:

§ 330.208 Qualification requirements.

(a) * * *

(1) Meets OPM-established or

approved qualification standards and

requirements for the position, including

any minimum educational

requirements, and any selection

placement factors established by the

agency;

* * * * *

(4) Meets any other applicable

requirement for appointment to the

competitive service.

(b) An agency may make an exception

to the qualification standard and adopt

an alternative standard under the

following conditions (this provision

does not authorize waiver of the

selection order required by § 330.207):

* * * * *

PART 333—RECRUITMENT AND

SELECTION FOR TEMPORARY AND

TERM APPOINTMENTS OUTSIDE THE

REGISTER

30. The authority citation for part 333

continues to read as follows:

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

10577, 3 CFR 1954–1958 Comp., p. 218;

section 333.203 also issued under 5 U.S.C.

1104, Pub. L. 95–454, sec. 3(5).

31. Section 333.101 is revised to read

as follows:

§ 333.101 Standards for temporary and

term appointments outside the register.

Except as OPM may otherwise

specify, an agency, in making a

temporary or term appointment outside

the register, shall determine that the

applicant meets the qualification

standards issued by OPM and that he or

she is not disqualified for any of the

reasons listed in § 339.101 and

§ 731.201 of this chapter. Candidates

found to be qualified shall be assigned

either an eligible rating or a numerical

score of at least 70 on a scale of 100.

32. Section 333.102 is revised to read

as follows:

§ 333.102 Public notice for temporary and

term appointments outside the register.

An agency recruiting outside the

register must send a vacancy

announcement to the OPM job

information center(s) and place an order

with the State Employment Service

office(s) that have geographic

jurisdiction over the position(s). The

notices must describe the qualifications

required and application deadline; must

include equal opportunity and veterans

preference provisions; and must follow

other OPM instructions for preparing

vacancy announcements.

PART 339—MEDICAL QUALIFICATION

DETERMINATIONS

33. The authority citation for part 339

continues to read as follows:

Authority: 5 U.S.C. 3301, 3302, 5112; E.O.

9830, February 24, 1947.

34. In § 339.102, paragraph (b) is

revised to read as follows:

§ 339.102 Purpose and effect.

* * * * *

(b) Personnel decisions based wholly

or in part on the review of medical

documentation and the results of

medical examinations and evaluations

shall be made in accordance with

appropriate parts of this title.

* * * * *

PART 340—OTHER THAN FULL-TIME

CAREER EMPLOYMENT (PART-TIME,

SEASONAL, AND INTERMITTENT)

35. The authority citation for part 340

continues to read as follows:

Authority: 5 U.S.C. 3401 et seq., unless

otherwise noted.

36. In § 340.202, paragraph (c) is

revised to read as follows:

§ 340.202 General.

* * * * *

(c) Mixed Tours of Duty. The

provisions of this subpart and the term

‘‘part-time career employment’’ do not

apply to employees with appointments

in tenure groups I or II who work under

mixed tours of duty. For this purpose,

a mixed tour of duty consists of

annually recurring periods of full-time,

part-time, or intermittent service as long

as the employee does not work part-time

more than 6 pay periods per calendar

year.

37. Subpart D of part 340 is revised to

read as follows:

Subpart D—Seasonal and Intermittent

Employment

Sec.

340.401 Definitions.

340.402 Seasonal employment

340.403 Intermittent employment.

Authority: 5 U.S.C. 3401 et seq., unless

otherwise noted.

Subpart D—Seasonal and intermittent

Employment

§ 340.401 Definitions.

(a) Seasonal employment means

annually recurring periods of work of

less than 12 months each year. Seasonal

employees are permanent employees

who are placed in nonduty/nonpay

status and recalled to duty in

accordance with preestablished

conditions of employment.

(b) Intermittent employment means

employment without a regularly

scheduled tour of duty.

§ 340.402 Seasonal employment.

(a) Appropriate use. Seasonal

employment allows an agency to

develop an experienced cadre of

employees under career appointment to

perform work which recurs predictably

year-to-year. Consistent with the career

nature of the appointments, seasonal

employees receive the full benefits

authorized to attract and retain a stable

workforce. As a result, seasonal

employment is appropriate when the

work is expected to last at least 6

months during a calendar year.

Recurring work that lasts less than 6

months each year is normally best

performed by temporary employees.

Seasonal employment may not be used

as a substitute for full-time employment

or as a buffer for the full-time workforce.

(b) Length of the season. Agencies

determine the length of the season,

subject to the condition that it be clearly

tied to nature of the work. The season

must be defined as closely as practicable

so that an employee will have a

reasonably clear idea of how much work

he or she can expect during the year. To

minimize the adverse impact of seasonal

layoffs, an agency may assign seasonal

employees to other work during the

projected layoff period. While in

nonpay status, a seasonal employee may

accept other employment, Federal or

non-Federal, subject to the regulations

on political activity (part 733 of this

title) and on employee responsibilities

and conduct (part 735), as well as

applicable agency policies. Subject to

the limitation on pay from more than

one position (5 U.S.C. 5533), a seasonal

employee may hold more than one

appointment.

(c) Employment agreement. An

employment agreement must be

executed between the agency and the

seasonal employee prior to the

employee’s entering on duty. At a

minimum, the agreement must inform

the employee:

(1) That he or she is subject to

periodic release and recall as a

condition of employment,

(2) The minimum and maximum

period the employee can expect to work,

(3) The basis on which release and

recall procedures will be effected, and

(4) The benefits to which the

employee will be entitled while in a

nonpay status.

(d) Release and recall procedures. A

seasonal employee is released to nonpay

status at the end of a season and

recalled to duty the next season. Release

and recall procedures must be
3062 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

established in advance and uniformly

applied. They may be based on

performance, seniority, veterans’

preference, other appropriate indices, or

a combination of factors. A seasonal

layoff is not subject to the procedures

for furlough prescribed in parts 351 and

752 of this title. Reduction in force or

adverse action procedures, as

applicable, are required for a seasonal

layoff that is not in accordance with the

employment agreement, for example, if

an agency intends to have an employee

work less than the minimum amount of

time specified in the employment

agreement. However, an agency may

develop a new employment agreement

to reflect changing circumstances.

(e) Noncompetitive movement.

Seasonal employees serving under

career appointment may move to other

positions in the same way as other

regular career employees.

§ 340.403 Intermittent employment.

(a) Appropriate use. An intermittent

work schedule is appropriate only when

the nature of the work is sporadic and

unpredictable so that a tour of duty

cannot be regularly scheduled in

advance. When an agency is able to

schedule work in advance on a regular

basis, it has an obligation to document

the change in work schedule from

intermittent to part-time or full-time to

ensure proper service credit.

(b) Noncompetitive movement.

Intermittent employees serving under

career appointment may move to other

positions in the same way as other

regular career employees.

PART 351—REDUCTION IN FORCE

38. The authority citation for part 351

continues to read as follows:

Authority: 5 U.S.C. 1302, 3502, 3503;

§ 351.801 also issued under E.O. 12828, 58

FR 2965.

39. In § 351.202, paragraph (c)(7) is

added to read as follows:

§ 351.202 Coverage.

* * * * *

(c) * * *

(7) A change in an employee’s work

schedule from other-than-full-time to

full-time. (A change from full-time to

other than full-time for a reason covered

in § 351.201(A)(2) is covered by this

part.)

40. Section 351.203 is amended by

adding alphabetically the definitions of

‘‘Furlough’’ and ‘‘Undue Interruption’’

to read as follows:

§ 351.203 Definitions.

* * * * *

Furlough under this part means the

placement of an employee in a

temporary nonduty and nonpay status

for more than 30 consecutive calendar

days, or more than 22 workdays if done

on a discontinuous basis, but not more

than 1 year.

* * * * *

Undue interruption means a degree of

interruption that would prevent the

completion of required work by the

employee 90 days after the employee

has been placed in a different position

under this part. The 90-day standard

should be considered within the

allowable limits of time and quality,

taking into account the pressures of

priorities, deadlines, and other

demands. However, a work program

would generally not be unduly

interrupted even if an employee needed

more than 90 days after the reduction in

force to perform the optimum quality or

quantity of work. The 90-day standard

may be extended if placement is made

under this part to a low priority program

or to a vacant position.

41. In § 351.301, the current

paragraph is redesignated as paragraph

(a) and paragraph (b) is added to read as

follows:

§ 351.301 Applicability.

* * * * *

(b) In a transfer of function, the

function must cease in the losing

competitive area and continue in an

identical form in the gaining

competitive area (i.e., in the gaining

competitive area, the function continues

to be carried out by competing

employees rather than by noncompeting

employees).

42. In § 351.302, paragraphs (f) and (g)

are added to read as follows:

§ 351.302 Transfer of employees.

* * * * *

(f) An agency may not separate an

employee who declines to transfer with

the function any sooner than it transfers

employees who chose to transfer with

the function to the gaining competitive

area.

(g) Agencies may ask employees in a

canvass letter whether the employee

wishes to transfer with the function

when the function transfers to a

different local commuting area. The

canvass letter must give the employee

information concerning entitlements

available to the employee if the

employee accepts the offer to transfer,

and if the employee declines the offer to

transfer. An employee may later change

and initial acceptance offer without

penalty. However, an employee may not

later change an initial declination of the

offer to transfer.

43. In § 351.303, paragraph (a) is

revised and paragraph (c)(3) is added to

read as follows:

§ 351.303 Identification of positions with a

transferring function.

(a) The competitive area losing the

function is responsible for identifying

the positions of competing employees

with the transferring function. A

competing employee is identified with

the transferring function on the basis of

the employee’s official position. Two

methods are provided to identify

employees with the transferring

function:

(1) Identification Method One; and

(2) Identification Method Two.

* * * * *

(c) * * *

(3) In determining what percentage of

time an employee performs a function

in the employee’s official position, the

agency may supplement the employee’s

official position description by the use

of appropriate records (e.g., work

reports, organizational time logs, work

schedules, etc.).

* * * * *

44. In § 351.403, paragraph (a) is

revised, paragraph (b)(5) is removed,

and paragraph (b)(6) is redesignated as

(b)(5) to read as follows:

§ 351.403 Competitive level.

(a)(1) Each agency shall establish

competitive levels consisting of all

positions in a competitive area which

are in the same grade (or occupational

level) and classification series, and

which are similar enough in duties,

qualification requirements, pay

schedules, and working conditions so

that an agency may reassign the

incumbent of one position to any of the

other positions in the level without

undue interruption.

(2) Competitive level determinations

are based on each employee’s official

position, not the employee’s personal

qualifications.

(3) Sex may not be the basis for a

competitive level determination, except

for a position OPM designates that

certification of eligibles by sex is

justified.

(4) A probationary period required by

subpart I of part 315 of this chapter for

initial appointment to a supervisory or

managerial position is not a basis for

establishing a separate competitive

level.

* * * * *

45. In § 351.501, paragraphs (b)(1) and

(b)(2) are revised to read as follows:

§ 351.501 Order of retention—competitive

service.

* * * * *
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3063

(b) * * *

(1) Group I includes each career

employee who is not serving a

probationary period. (A supervisory or

managerial employee serving a

probationary period required by subpart

I of part 315 of this title is in group I

if the employee is otherwise eligible to

be included in this group.) The

following employees are in group I as

soon as the employee completes any

required probationary period for initial

appointment:

(i) An employee for whom substantial

evidence exists of eligibility to

immediately acquire status and career

tenure, and whose case is pending final

resolution by OPM (including cases

under Executive Order 10826 to correct

certain administrative errors);

(ii) An employee who acquires

competitive status and satisfies the

service requirement for career tenure

when the employee’s position is brought

into the competitive service;

(iii) An administrative law judge;

(iv) An employee appointed under 5

U.S.C. 3104, which provides for the

employment of specially qualified

scientific or professional personnel, or a

similar authority; and

(v) An employee who acquires status

under 5 U.S.C. 3304(c) on transfer to the

competitive service from the legislative

or judicial branches of the Federal

Government.

(2) Group II includes each careerconditional employee, and each

employee serving a probationary period

under subpart H of part 315 of this

chapter. (A supervisory or managerial

employee serving a probationary period

required by subpart I of part 315 of this

title is in group II if the employee has

not completed a probationary period

under subpart H of part 315 of this title.)

Group II also includes an employee

when substantial evidence exists of the

employee’s eligibility to immediately

acquire status and career-conditional

tenure, and the employee’s case is

pending final resolution by OPM

(including cases under Executive Order

10826 to correct certain administrative

errors).

* * * * *

46. Section 351.502 is revised to read

as follows:

§ 351.502 Order of retention—excepted

service.

(a) Competing employees shall be

classified on a retention register in

tenure groups on the basis of their

tenure of employment, veteran

preference, length of service, and

performance in descending order as set

forth under § 351.501(a) for competing

employees in the competitive service.

(b) Groups are defined as follows:

(1) Group I includes each permanent

employee whose appointment carries no

restriction or condition such as

conditional, indefinite, specific time

limit, or trial period.

(2) Group II includes each employee:

(i) Serving a trial period; or

(ii) Whose tenure is equivalent to a

career-conditional appointment in the

competitive service in agencies having

such excepted appointments.

(3) Group III includes each employee:

(i) Whose tenure is indefinite (i.e.,

without specific time limit), but not

actually or potentially permanent;

(ii) Whose appointment has a specific

time limitation of more than 1 year; or

(iii) Who is currently employed under

a temporary appointment limited to 1

year or less, but who has completed 1

year of current continuous service under

a temporary appointment with no break

in service of 1 workday or more.

47. In § 351.506, paragraph (b) is

revised to read as follows:

§ 351.506 Effective date of retention

standing.

* * * * *

(b) The retention standing of each

employee retained in a competitive

level as an exception under § 351.607 or

§ 351.608 is determined as of the date

the employee would have been released

from the competitive level had the

exception not been used. The retention

standing of each employee retained

under either exception remains fixed

until completion of the reduction in

force action which resulted in the

temporary retention.

* * * * *

48. In § 351.701, paragraph (a) is

revised to read as follows:

§ 351.701 Assignment involving

displacement.

(a) General. When a group I or II

competitive service employee with a

current annual performance rating of

record of minimally successful (Level 2)

or equivalent, or higher, is released from

a competitive level, an agency shall

offer assignment, rather than furlough or

separate, in accordance with paragraphs

(b), (c), and (d) of this section to another

competitive position which requires no

reduction, or the lease possible

reduction, in representative rate. The

employee must be qualified for the

offered position. The offered position

shall be in the same competitive area,

last at least 3 months, and have the

same type of work schedule (e.g., fulltime, part-time, intermittent, or

seasonal) as the position from which the

employee is released. Upon accepting

an offer of assignment, or displacing

another employee under this part, an

employee retains the same status and

tenure in the new position. The

promotion potential of the offered

position is not a consideration in

determining an employee’s right of

assignment.

* * * * *

49. In § 351.702, paragraph (a)(4) is

revised to read as follows:

§ 351.702 Qualifications for assignment.

(a) * * *

(4) Has the capacity, adaptability, and

special skills needed to satisfactorily

perform the duties of the position

without undue interruption. This

determination includes recency of

experience, when appropriate.

* * * * *

50. In § 351.704, paragraph (b)(5) is

added to read as follows:

§ 351.704 Rights and prohibitions.

* * * * *

(b) * * *

(5) Authorize or permit an agency to

displace an employee or to satisfy a

competing employee’s right to

assignment by assigning the employee

to a position with a different type of

work schedule (e.g., full-time, part-time,

intermittent, or seasonal) than the

position from which the employee is

released.

PART 353—RESTORATION TO DUTY

FROM MILITARY SERVICE OR

COMPENSABLE INJURY

51. Part 353 is revised to read as

follows:

PART 353—RESTORATION TO DUTY

FROM MILITARY SERVICE OR

COMPENSABLE INJURY

Subpart A—General Provisions

Sec.

353.101 Scope.

353.102 Definitions.

353.103 Persons covered.

353.104 Notification of rights and

obligations.

353.105 Maintenance of records.

353.106 Personnel actions during

employee’s absence.

353.107 Status upon reemployment.

353.108 Effect of performance and conduct

on restoration rights.

353.109 Transfer of function to another

agency.

353.110 OPM placement assistance.

353.111 Restoration rights of TAPER

employees.

Subpart B—Military Service

353.201 Leaves of absence.

353.202 Mandatory restoration.

353.203 Physical disqualification.

353.204 Retention protection.

353.205 Prohibition against discrimination.
3064 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

Subpart C—Compensable Injury

353.301 Restoration rights.

353.302 Status upon reemployment.

Subpart D—Appeal Rights

353.401 Appeals to the Merit Systems

Protection Board.

Authority: 38 U.S.C. 4301, et seq., and 5

U.S.C. 8151.

Subpart A—General Provisions

§ 353.101 Scope.

The rights and obligations of

employees and agencies in connection

with leaves of absence or restoration to

duty following military service under 38

U.S.C. 4301 et seq., and restoration

under 5 U.S.C. 8151 for employees who

sustain compensable injuries, are

subject to the provisions of this part.

Subpart A covers those provisions that

are common to both of the above groups

of employees. Subpart B deals with

provisions that apply just to military

duty and subpart C covers provisions

that pertain just to injured employees.

Subpart D covers the appeal rights of

both groups.

§ 353.102 Definitions.

In this part:

Agency means:

(1) With respect to restoration

following a compensable injury, any

department, independent establishment,

agency, or corporation in the executive

branch, including the U.S. Postal

Service and the Postal Rate

Commission, and any agency in the

legislative or judicial branch; and

(2) With respect to military duty, all

of the foregoing except for any agency

in the legislative or judicial branch, but

including the Government of the District

of Columbia.

Fully recovered means compensation

payments have been terminated on the

basis that the employee is able to

perform all the duties of the position he

or she left or an equivalent one.

Injury means a compensable injury

sustained under the provisions of 5

U.S.C. chapter 81, subchapter I, and

includes, in addition to accidental

injury, a disease proximately caused by

the employment.

Leave of absence means military

leave, annual leave, leave without pay

(LWOP), furlough, continuation of pay,

or any combination of these.

Military duty means a period of:

(1) Active duty for training or for

service in the Armed Forces of the

United States;

(2) Inactive duty training in the

Armed Forces of the United States; and

(3) Active duty in the Public Health

Service that is covered by 38 U.S.C.

4304 (b). For the purpose of coverage

under 38 U.S.C. 4304 (c) and (d), fulltime training or other full-time duty

performed by a member of the National

Guard under 32 U.S.C. 316, 502, 503,

504, or 505 is considered active duty for

training in the Armed Forces of the

United States. For the purpose of 38

U.S.C. 4304 (d), inactive duty training

performed by that member under 32

U.S.C. 502 or 37 U.S.C. 206, 301, 309,

402, or 1002 is considered inactive duty

training.

Partially recovered means an injured

employee, though not yet able to resume

the full range of his or her regular

duties, has recovered sufficiently to

return to part-time or light duty or to

another position with less demanding

physical requirements. Ordinarily, it is

expected that a partially recovered

employee will fully recover eventually.

Physically disqualified means that:

(1) (i) For medical reasons the

employee is unable to perform the

duties of the position formerly held or

an equivalent one, or

(ii) There is a medical reason to

restrict the individual from some or all

essential duties because of possible

incapacitation (for example, a seizure)

or because of risk of health impairment

(such as further exposure to a toxic

substance for an individual who has

already shown the effects of such

exposure).

(2) The condition is considered

permanent without little likelihood for

improvement or recovery.

§ 353.103 Persons covered.

(a) The provisions of this part

concerned with military duty cover each

employee of an agency who enters on

military duty from:

(1) A career or career-conditional

appointment in the competitive service;

or

(2) An appointment with time

limitation in a position outside the

competitive service.

(b) The provisions of this part

concerning employee injury cover a

civil officer or employee in any branch

of the Government of the United States,

including an officer or employee of an

instrumentality wholly owned by the

United States, who was separated or

furloughed from an appointment

without time limitation as a result of a

compensable injury; but do not

include—

(1) A commissioned officer of the

Regular Corps of the Public Health

Service;

(2) A commissioned officer of the

Reserve Corps of the Public Health

Service on active duty; or

(3) A commissioned officer of the

National Oceanic and Atmospheric

Administration.

(c) Section 353.111 covers the

restoration rights of employees serving

under temporary appointments pending

establishment of a register (TAPER).

§ 353.104 Notification of rights and

obligations.

When an agency separates, places on

leave of absence, restores or fails to

restore an employee because of military

duty or compensable injury, it shall

notify the employee his or her rights,

obligations, and benefits relating to

Government employment, including any

appeal rights to the Merit Systems

Protection Board (MSPB) as required by

§ 1201.21 of this title, or where

appropriate, the right to grieve under a

negotiated grievance procedure.

However, regardless of notification, an

employee is still obligated to exercise

due diligence in ascertaining his or her

rights, and to seek reemployment within

the time limits provided by chapter 43

of title 38 of the U.S. Code, for

reemployment after military service or

as soon as he or she is able after a

compensable injury.

§ 353.105 Maintenance of records.

Each agency shall identify the

position vacated by an employee who is

injured or leaves to enter on military

duty. It shall also maintain the

necessary records to assure that all such

employees are preserved the rights and

benefits granted by this law and this

part.

§ 353.106 Personnel actions during

employee’s absence.

(a) Agency promotion plans must

provide a mechanism by which

employees who are absent because of

military duty or compensable injury can

be considered for promotion.

(b) An employee whose position is

reclassified while he or she is absent

because of military duty or compensable

injury shall be considered for that

position in accordance with the

provisions in part 335 of this chapter.

§ 353.107 Status upon reemployment.

Upon reemployment, an employee

who was absent on military duty or

because of compensable injury is

generally entitled to be treated as

though he or she had never left. This

means the entire period from the time

the employee entered military service or

was injured until he or she was

reemployed is creditable for purposes of

rights and benefits based upon seniority

and length of service, including withingrade increases, career tenure,
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3065

completion of probation, and leave rate

accrual.

§ 353.108 Effect of performance and

conduct on restoration rights.

The laws covered by this part do not

permit an agency to circumvent the

protections afforded by other laws to

employees who face the involuntary

loss of their positions. Thus, an

employee may not be denied restoration

rights because of poor performance or

conduct that occurred prior to the

employee’s departure for compensable

injury or military duty. However,

separation for cause that is substantially

unrelated to the injury or to the

performance of military duty negates

restoration rights. If during the period of

injury or military duty the employee’s

conduct is such that it would disqualify

him or her for employment under OPM

or agency regulations, restoration rights

may be denied.

§ 353.109 Transfer of function to another

agency.

If the function of an employee absent

on military duty or compensable injury

is transferred to another agency, and if

the employee would have been

transferred with the function under part

351 of this chapter had he or she not

been absent, the employee is entitled to

be reinstated to a position in the gaining

agency that is equivalent to the one he

or she left. It shall also assume the

obligation to restore the employee in

accordance with law and this part.

§ 353.110 OPM placement assistance.

(a) Employee returning from military

duty.

(1) OPM will provide placement

assistance to an employee with

restoration rights in the executive or

legislative branch, who either has

competitive status, or if in the

legislative branch is able to acquire

competitive status under 5 U.S.C.

3304(c), provided—

(i) The employee’s executive branch

agency is abolished and its functions are

not transferred, or it is not possible for

the agency to restore the employee, or

(ii) It is not possible for a legislative

branch employee to be restored in the

legislative branch.

(2) If OPM determines the individual

is qualified for a position in the

executive branch which is either vacant

or filled under temporary appointment,

the returning employee will be offered

the position.

(b) Employee returning from

compensable injury. OPM will provide

placement assistance to an employee

with restoration rights in the executive,

legislative, or judicial branches who

cannot be placed in his or her former

agency and who either has competitive

status or is eligible to acquire it under

5 U.S.C. 3304(c). If the employee’s

agency is abolished and its functions are

not transferred, or it is not possible for

the employee to be restored in his or her

former agency, OPM will provide

placement assistance by enrolling the

employee in OPM’s Priority Placement

Program under part 330 of this chapter.

(c) This section does not apply to

employees serving under a temporary

appointment pending establishment of a

register (TAPER).

§ 353.111 Restoration rights of TAPER

employees.

An employee serving in the

competitive service under a temporary

appointment pending establishment of a

register (TAPER) under § 316.201 of this

chapter (other than an employee serving

in a position classified above GS–15), is

entitled to be restored to the position he

or she left or an equivalent one in the

same commuting area.

Subpart B—Military Service

§ 353.201 Leaves of absence.

(a) Entitlement.

(1) The following employees are

entitled under 38 U.S.C. 4304 to a leave

of absence in connection with military

duty:

(i) A member of a Reserve component

(Reserve or National Guard) who

performs active duty for training or

inactive duty (38 U.S.C. 4304(d)), or

(ii) An employee who reports for

enlistment, induction or physical

examination (38 U.S.C. 4304(e)).

(2) There is no limitation in law as to

the timing or duration of leaves of

absence, nor is there any authority for

an agency to deny a leave of absence. If

an agency has concerns about the

timing, frequency, or length of an

employee’s requests for a leave of

absence, it should contact the

commander of the military unit to

determine if the duty can be changed.

(b) Authorization required. To be

eligible for a leave of absence, the

employee must be under military

orders. Any of the following is

acceptable evidence of orders:

(1) Written military orders,

(2) An inactive duty training or ‘‘drill

schedule’’ published by the employee’s

military command or unit, or

(3) Verbal confirmation of such orders

from the employee’s military command

or unit or military superior.

(c) Work schedules. An agency is not

required to reschedule an employee’s

work in order to accommodate his or

her Reserve obligation, and may not

require the employee to reschedule his

or her work in order to perform military

duty on his or her own time.

(d) Return to duty.

(1) An employee on a leave of absence

for military duty is required to report for

work at the beginning of the first

regularly scheduled workday following

release, rejection for service or

completion of physical examination. If

hospitalized incident to training or

examination, the employee is required

to report at the beginning of the first

regularly scheduled workday following

discharge from hospitalization, or

within 1 year or release from military

duty, whichever is earlier. In all cases,

necessary travel time or other delays

beyond the individual’s control may

extend the reporting date. An employee

who fails to report within these time

limits is subject to normal agency

disciplinary procedures related to

absences from work.

(2) An employee on a leave of absence

returns to the position he or she left, or

if applicable, to the position to which

reassigned or promoted while absent.

The employee is entitled to the same

seniority, status, pay and vacation he or

she would have had if not absent on

military duty.

(3) An employee returning from a

leave of absence has no special

protections against discharge without

cause. However, the employee may not

be disadvantaged where vacation leave

is concerned. Thus, insofar as possible,

the employee is entitled to have an

annual vacation period of extended

leave for rest and recreation approved

for the same time as it would ordinarily

have been granted.

§ 353.202 Mandatory restoration.

(a) Basic entitlement. An individual

returning from military duty who is

entitled to restoration rights under 38

U.S.C. 4301 (inducted) or 4304 (a), (b),

or (c) (enlisted, called to active duty,

Reservist entered on active duty, or

Reservist serving basic training), must

be restored as soon as possible after

making application, but in no event

later than 30 days after the individual’s

release from military duty.

(b) Conditions. To be eligible for

restoration, the employee must have left

his or her employment for the purpose

of entering the military, must

satisfactorily complete his or her period

of service, and apply for restoration—

(1) Within 90 days of release from

active duty (or from hospitalization

continuing after discharge for a period

of no more than 1 year) in the case of

employees returning under 38 U.S.C.

4304 (a) or (b); and
3066 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

(2) Within 31 days of release from

active duty (or from hospitalization

incident to the military service, or 1

year after the employee’s scheduled

release from military training,

whichever is earlier), in the case of

employees returning under 38 U.S.C.

4304(c).

(c) Length of military duty. Each time

an employee leaves his or her

employment to enter military service, he

or she is subject to the time limits

prescribed in 38 U.S.C. 4304 (a) and (b)

for purposes of restoration rights.

Generally, these are as follows:

(1) Regular active duty soldiers have

4 years plus 1 additional year if the

additional duty was ‘‘at the request and

for the convenience of the Federal

Government.’’ (Their orders or DD Form

214 must so state.) Also, in the event of

a Presidential call-up such as Operation

Desert Storm, numerous active duty

troops in key positions may be held over

beyond their enlistments. This

additional duty is covered because it is

‘‘additional service imposed pursuant to

law.’’

(2) Reserves and National Guard are

covered under 38 U.S.C. 4304(b)(2).

Normally, their restoration rights are

limited to 4 years. (They do not get the

extra 5th year ‘‘at the request and for the

convenience of the Federal

Government.’’) To go beyond 4 years,

their service has to be other than for

training, it is limited by the time period

that the President is authorized to call

up troops (currently 180 days), and, if

voluntary, their orders or DD Form 214

must say that the additional duty was at

the request and for the convenience of

the Government.

(3) Mobilization authority.

(i) Since 1978, 10 U.S.C. 673b has

authorized the President to call up as

many as 200,000 members of the

Selected Reserve for up to 90 days. In

1986, this authority was broadened to

allow the President to extend the callup for an additional 90 days, if

necessary, without regard to a state of

national emergency or war, for the

purpose of augmenting the active

component forces for an operational

mission.

(ii) The President is also authorized

by 10 U.S.C. 673a to call up as many as

one million members of the Ready

Reserves for not longer than 24 months

in a national emergency.

(iii) Under 10 U.S.C. 672, with a

declaration of war or national

emergency by the Congress, all Reserve

components, including Standby and

Retired, could be ordered to active duty

for the duration of the war, plus 6

months.

§ 353.203 Physical disqualification.

An individual who is physically

disqualified for the former position or

an equivalent one because of disability

sustained during military service shall

be placed in the agency in another

position for which qualified that will

provide the employee with the same

seniority, status, and pay, or the nearest

approximation consistent with the

circumstances in each case.

§ 353.204 Retention protection.

(a) While on military duty. An

employee with restoration rights under

38 U.S.C. 4301 or 4304 (a), (b), or (c)

may not be demoted or separated (other

than military separation) while on

military duty. He or she is not a

‘‘competing employee’’ under § 351.404

of this chapter. If the employee’s

position is abolished during such

absence, the agency must reassign the

employee to another position of like

seniority, status, and pay. An employee

on a leave of absence under 38 U.S.C.

4304 (d) or (e) has no special protections

in a reduction in force.

(b) Upon reemployment. Upon

reemployment, an employee with a

restoration right under 38 U.S.C. 4301 or

4304 (a) or (b) may not be discharged for

a period of 1 year except for cause. A

member of a Reserve component

returning from an initial period of active

duty for training under 38 U.S.C.

4304(c) may not be discharged for a

period of 6 months except for cause.

(Reduction in force is not considered

‘‘for cause.’’) Employees returning from

a leave of absence under 38 U.S.C. 4304

(d) or (e) have no special protections

against discharge.

(c) TAPER employees. This section

does not apply to employees serving

under a temporary appointment

pending establishment of a register.

§ 353.205 Prohibition against

discrimination.

A person who seeks or holds a

position in the Federal Government may

not be denied hiring, retention in

employment, or any promotion or other

incident or advantage of employment

because of any obligation as a member

of a Reserve component of the Armed

Forces.

Subpart C—Compensable Injury

§ 353.301 Restoration rights.

(a) Fully recovered within 1 year. An

employee who fully recovers from a

compensable injury within 1 year from

the date eligibility for compensation

began (or from the time compensable

disability recurs if the recurrence begins

after the employee resumes regular fulltime employment with the United

States), is entitled to be restored

immediately and unconditionally to his

or her former position or an equivalent

one. Although these restoration rights

are agencywide, the employee’s basic

entitlement is to the former position or

equivalent in the local commuting area

the employee left. If a suitable vacancy

does not exist, the employee is entitled

to displace an employee occupying a

continuing position under temporary

appointment or tenure group III. If there

is no such position in the local

commuting area, the agency may offer

the employee a position (as described in

this paragraph) in another location. This

paragraph also applies when an injured

employee accepts a lower-graded

position in lieu of separation and

subsequently fully recovers. A fully

recovered employee is expected to

return to work immediately upon the

cessation of compensation.

(b) Fully recovered after 1 year. An

employee who was separated because of

a compensable injury and whose full

recovery takes longer than 1 year from

the date eligibility for compensation

began (or from the time compensable

disability recurs if the recurrence begins

after the injured employee resumes

regular full-time employment with the

United States), is entitled to priority

consideration, agencywide, for

restoration to the position he or she left

or an equivalent one provided he or she

applies for reappointment within 30

days of cessation of compensation.

Priority consideration is accorded by

entering the individual on the agency’s

reemployment priority list for the

competitive service or reemployment

list for the excepted service. If the

individual cannot be placed in the

former commuting area, he or she is

entitled to priority consideration for an

equivalent position elsewhere in the

agency. (See parts 302 and 330 of this

chapter for more information on how

this may be accomplished for the

excepted and competitive services,

respectively.) This subpart also applies

when an injured employee accepts a

lower-graded position in lieu of

separation and subsequently fully

recovers.

(c) Physically disqualified. An

individual who is physically

disqualified for the former position or

equivalent because of a compensable

injury is entitled to be placed in another

position for which qualified that will

provide the employee with the same

seniority, status, and pay, or the nearest

approximation thereof, consistent with

the circumstances in each case. This

right is agencywide and applies for a

period of 1 year from the date eligibility
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3067

for compensation begins. After 1 year,

the individual is entitled to the rights

accorded individuals who fully or

partially recover, as applicable.

(d) Partially recovered. Agencies must

make every effort to restore, according

to the circumstances in each case, an

individual who has partially recovered

from a compensable injury and who is

able to return to limited duty. At a

minimum, this would mean treating

these employees substantially the same

as other handicapped individuals under

the Rehabilitation Act of 1973, as

amended. (See 29 U.S.C. 791(b) and

794.) If the individual fully recovers, he

or she is entitled to be considered for

the position held at the time of injury,

or an equivalent one. A partially

recovered employee is expected to seek

reemployment as soon as he or she is

able.

§ 353.302 Status upon reemployment.

An individual who is restored

following a compensable injury is

generally entitled to be treated as

though he or she had never left. This

means that the entire period the

employee was receiving compensation

is creditable for purposes of rights and

benefits based upon length of service,

including within-grade increases, career

tenure, leave rate accrual, and

completion of probation. However, an

injured employee enjoys no special

protections in a reduction in force.

Separation by reduction in force or for

cause while on compensation

terminates entitlement to credit for the

subsequent period the individual

continues to receive compensation, and

also means the individual has no

restoration rights.

Subpart D—Appeal Rights

§ 353.401 Appeals to the Merit Systems

Protection Board.

(a) Except as provided in paragraphs

(b) and (c) of this section, an employee

or former employee of an agency in the

executive branch (including the U.S.

Postal Service and the Postal Rate

Commission) who is covered by this

part may appeal to the MSPB an

agency’s failure to restore, improper

restoration, or failure to return an

employee following a leave of absence.

All appeals are to be submitted in

accordance with MSPB’s regulations.

(b) An individual who fully recovers

from a compensable injury more than 1

year after compensation begins may

appeal to MSPB as provided for in parts

302 and 330 of this chapter for excepted

and competitive service employees,

respectively.

(c) An individual who is partially

recovered from a compensable injury

may appeal to MSPB for a determination

of whether the agency is acting

arbitrarily and capriciously in denying

restoration. Upon reemployment, a

partially recovered employee may also

appeal the agency’s failure to credit time

spent on compensation for purposes of

rights and benefits based upon length of

service.

PART 930—PROGRAMS FOR

SPECIFIC POSITIONS AND

EXAMINATION (MISCELLANEOUS)

Subpart A—Motor Vehicle Operators

52. The authority citation for subpart

A of part 930 continues to read as

follows:

Authority: 5 U.S.C. 3301, 3320, 7301; 40

U.S.C. 491; E.O. 10577, 3 CFR, 1954–1958

Comp., p. 218; E.O. 11222, 3 CFR, 1964–1965

Comp., p. 306. (Separate authority is listed

under § 930.107).

52. In § 930.105, paragraph (a) is

revised to read as follows:

§ 930.105 Minimum requirements for

competitive and excepted service positions.

(a) An agency may fill motor vehicle

operator positions in the competitive or

excepted services by any of the methods

normally authorized for filling

positions. Applicants for motor vehicle

operator positions and incidental

operators must meet the following

requirements for these positions:

(1) Possess a safe driving record;

(2) Possess a valid State license;

(3) Except as provided in § 930.107,

pass a road test; and

(4) Demonstrate that they are

medically qualified to operate the

appropriate motor vehicle safely in

accordance with the standards and

procedures established in this part.

* * * * *

54. Section 930.106 is revised to read

as follows:

§ 930.106 Details in the competitive

service.

An agency may detail an employee to

an operator position in the competitive

service for 30 days or less when the

employee possesses a State license. For

details exceeding 30 days, the employee

must meet all the requirements of

§ 930.105 and any applicable OPM and

agency regulations governing such

details.

55. Section 930.108 is revised to read

as follows:

§ 930.108 Periodic medical evaluation.

At least once every 4 years, each

agency will ensure that employees who

operate Government-owned or leased

vehicles are medically able to do so

without undue risk to themselves or

others. When there is a question about

an employee’s ability to operate a motor

vehicle safely, the employee may be

referred for a medical examination in

accordance with the provisions of part

339 of this chapter.

56. In § 930.109 paragraph (b) is

revised to read as follows:

§ 930.109 Periodic review and renewal of

authorization.

* * * * *

(b) An agency may renew the

employee’s authorization only after the

appropriate agency official has

determined that the employee is

medically qualified and continues to

demonstrate competence to operate the

type of motor vehicle to which assigned

based on a continued safe driving

record.

[FR Doc. 95–830 Filed 1–10–95; 3:46 pm]

BILLING CODE 6325–01–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 319

[Docket No. 89–154–2]

RIN 0579–AA21

Importation of Plants Established in

Growing Media

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending ‘‘Subpart—

Nursery Stock, Plants, Roots, Bulbs,

Seeds, and Other Plant Products’’ to

allow the importation of four additional

genera of plants established in growing

media. These genera are Alstroemeria,

Ananas, Anthurium, and Nidularium.

We are deferring final action on

importation of Rhododendron pending

consultation under the Endangered

Species Act on the potential impacts of

importing Rhododendron established in

growing media. We are also adopting

the pest risk evaluation standards we

proposed for evaluating pest risks

associated with importing plants

established in growing media. This final

rule will affect persons interested in

importing Alstroemeria, Ananas,

Anthurium, and Nidularium, and

domestic growers of these genera.

EFFECTIVE DATE: February 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Peter Grosser or Frank Cooper, Senior

Operations Officers, Port Operations,