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.

Rules and Regulations Federal Register

30375 

Vol. 86, No. 108 

Tuesday, June 8, 2021 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR PART 335 

RIN 3206–AN77 

Promotion and Internal Placement 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing final 

regulations to give agencies, in 

individual hiring processes, the 

discretion to select and reinstate certain 

former Federal employees, to fill 

vacancies at any grade level or with 

promotion potential for which the 

individual is qualified, notwithstanding 

the grade of the position the individual 

had previously held on a permanent 

basis in the competitive service. An 

agency will be able to effectuate such 

reinstatements non-competitively, 

pursuant to a job opportunity 

announcement open to outside 

candidates, provided the former 

employee qualifies for the position as 

posted. The regulations will help 

agencies to recruit former Federal 

employees who have developed more 

enhanced or higher-level skill-sets than 

they had when they left government to 

apply for agency vacancies at grade 

levels appropriate to their current 

knowledge, skills, and abilities. 

Previously, an agency could reinstate an 

individual, without competition, only to 

a position at a grade level that was no 

higher than the grade level of a position 

the individual had held on a permanent 

basis in the competitive service. 

Reinstatement to a higher-graded 

position, or to a position with greater 

promotion potential, required 

competition. The intended effect of this 

hiring authority is to broaden the 

choices available to agencies when 

filling vacant positions and to promote 

a workforce in which individuals who 

have developed their competencies 

through extended service in the Federal 

Government and individuals who have 

developed their competencies in the 

private or non-profit sectors can 

enhance each other’s strengths by 

sharing knowledge and perspectives. 

DATES: This rule is effective July 8, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Michelle T. Glynn, Telephone: 202– 

606–1571, Fax: 202–606–3340, TDD: 

202–418–3134, or email: 

michelle.glynn@opm.gov. 

SUPPLEMENTARY INFORMATION: On 

December 26, 2019, the Office of 

Personnel Management (OPM) 

published proposed regulations in the 

Federal Register at 84 FR 70906 to 

change the criteria for how an agency 

may reinstate certain former Federal 

employees to a position in the 

competitive service in part 335 of title 

5, Code of Federal Regulations (CFR). 

OPM received 36 comments on the 

proposed rule: 20 from individuals, 11 

from Federal agencies, 4 from 

professional associations, and 1 from a 

Federal employees’ union (‘‘the Federal 

Employees’ Union’’). 

Ten individuals, eight Federal 

agencies, and 2 professional 

associations expressed their general 

support for the proposed changes. 

Three Federal agencies recommended 

OPM place a limitation on the number 

of times an individual can be 

noncompetitively reinstated under this 

hiring authority. OPM is not adopting 

this suggestion because the purpose of 

this rule is to broaden choices for an 

agency seeking to fill a vacancy by 

enabling an agency to choose to 

reinstate a former employee, noncompetitively, when such a former 

employee applies for the position and 

establishes qualifications at the 

appropriate level, and regardless of the 

grade or promotion potential of that 

employee’s prior Federal position. 

Limitations on the number of times an 

individual could apply for a position 

through this reinstatement authority 

could act as a disincentive for 

individuals who have developed their 

knowledge, skills, and abilities through 

experiences outside of the Federal 

Government to attempt to return to 

Federal service. The Federal 

government can benefit when an 

employee leaves Federal service if the 

employee obtains new experiences in 

the private sector, the non-profit sector, 

academia, or state and local government 

that enrich the knowledge, skills, and 

abilities of the employee. Facilitating 

the return to Government of people who 

have broadened their work experience 

in this way advances the civil service’s 

goal of an effective and efficient 

government. Apart from providing the 

agency with additional choices in 

making selections for current vacancies, 

it enables agencies to build a workforce 

of individuals who bring a variety of 

knowledge, training, and experiences to 

their work. Accordingly, OPM seeks to 

remove barriers to reinstating Federal 

employees who have already competed 

for a Federal position once or who 

otherwise meet the service requirement 

for career tenure in accordance with 5 

CFR 315.201 and reinstatement 

eligibility under 5 CFR 315.401, 

performed successfully, and 

subsequently gained valuable new skills 

and experiences when they apply to 

positions commensurate with their 

current level of qualification. 

One commenter asked whether this 

rule waives the three-year time limit on 

reinstatement eligibility in 5 CFR 

315.401(b) for individuals who did not 

complete the requirement for career 

tenure. OPM is not waiving the time 

limitations in 5 CFR 315.401(b). Former 

career-conditional employees are 

eligible for reinstatement for three years. 

Former career employees have lifetime 

eligibility for reinstatement. 

Another individual commented that 

an employee who leaves an agency 

before completing 52 weeks at their 

current grade level should not be 

allowed to be reinstated after one year 

to a position at a higher grade level 

because the employee did not obtain all 

of the knowledge, skills, experience, 

and training at the lower grade to be 

eligible for work at the higher grade. 

OPM agrees, in part, with this comment, 

but it has already addressed through 

existing regulation. Individuals seeking 

reinstatement to a higher-graded 

position under this rule must meet timein-grade (TIG) restrictions in accordance 

with 5 CFR part 300 subpart F; 

reinstatement is not an exclusion from 

TIG restriction per 5 CFR 315.603(b)(2). 

OPM disagrees with the commenter’s 

belief that an individual could not meet 

the qualifications for higher-graded 

work if the requisite education or 

experience was obtained outside of 

Federal employment. OPM has 


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concluded that some individuals can 

and do acquire such skills and or 

experience from work with other 

employers. The proposed regulation 

acknowledges this possibility and 

provides that, when it arises, such 

former employees may apply for 

positions at higher levels, or with higher 

promotion potential, than the positions 

they previously held, and agencies may 

reinstate such individuals at that grade 

level, just as agencies do now when 

appointing other individuals from 

outside the agency’s workforce who 

apply under other non-competitive 

hiring authorities (e.g., when agencies 

hire individuals under the noncompetitive appointment of certain 

military spouses, or the non-competitive 

appointment of present and former 

Peace Corps personnel). OPM believes 

its rationale for this rule is sound: That 

individuals who have previously proven 

their ability to be successful in Federal 

employment over an extended period 

should be allowed to apply for vacant 

positions at the grade level for which 

they currently qualify, and agencies 

should be able to appoint them, noncompetitively, through this expansion to 

the reinstatement provision. The 

presence of restrictions on the grade 

level to which an individual could be 

reinstated could serve as a disincentive 

for highly qualified individuals to apply 

for positions that would enable them to 

rejoin the Federal workforce. 

Three Federal agencies and three 

individuals suggested OPM limit 

reinstatement under this provision to 

one grade level higher than the highest 

grade level an individual held. OPM is 

not adopting this suggestion because the 

intent of this rule is to allow individuals 

to be reinstated at any grade level for 

which a position is posted and for 

which the individual qualifies. 

Four individuals, one professional 

association, one Federal agency, and the 

Federal Employees’ Union stated this 

proposed rule should also apply to 

current Federal employees who have 

completed one year of service after a 

competitive appointment and were 

rated at least fully successful on their 

most recent performance appraisal. 

OPM cannot adopt this 

recommendation. Current Federal 

employees cannot be reinstated; 

reinstatement is a personnel action that 

applies to certain former federal 

employees. The scope of the proposed 

regulation concerned reinstatement of 

former Federal employees only. 

Seven individuals, two Federal 

agencies, and the Federal Employees’ 

Union commented that this hiring 

authority will be abused and questioned 

the fairness of allowing former Federal 

employees to come back to Federal 

service at higher grade levels 

noncompetitively when current Federal 

employees must compete for higher 

grade levels. There are many safeguards 

built into this enhanced flexibility. This 

flexibility was proposed as a 

discretionary action under 5 CFR part 

335. This means an agency may except 

reinstatement actions from the 

competitive procedures of part 335 but 

is not required to do so. Discretionary 

actions must be taken in accordance 

with the hiring agency’s merit 

promotion plans pursuant to 5 CFR 

335.103, and any collective bargaining 

agreements the hiring agency has in 

place. Before an agency may select a 

former employee and reinstate him or 

her to a position at a higher grade level 

or with higher promotion potential than 

the position the individual previously 

held, the agency must provide public 

notice through a job opportunity 

announcement, clear its Reemployment 

Priority List (RPL) as well as its Career 

Transition Assistance Plans (CTAP), and 

Interagency Career Transition 

Assistance Plans (ICTAP); consider 

applicants under the Veterans 

Employment Opportunities Act of 1998, 

as amended (VEOA), 5 U.S.C. 3304(f) 

and the Land Management Workforce 

Flexibilities Act, as applicable; and 

assess whether the individual meets all 

qualifications requirements for the 

position to which the individual is 

being reinstated. OPM will assess 

agency use of this flexibility as part of 

its on-going oversight work or will 

consider whether to conduct a specific 

evaluation of this flexibility after it has 

been in operation for a year, depending 

on how widely it is used. OPM’s 

purpose in modifying its reinstatement 

regulation is to expand agency choice by 

permitting an agency to select and 

reinstate into Government former 

successful Federal employees who have 

obtained new knowledge, skills, and 

abilities from outside government that 

qualifies them for the positions posted. 

An agency may also consider and select 

from among candidates who qualified 

through the normal progression through 

established steps and grades and the 

agency’s merit promotion program. 

OPM believes that permitting these 

choices will enhance the quality of 

hiring, and thus Government, generally, 

and enable agencies to exploit 

knowledge, skills, and abilities acquired 

and developed both within and outside 

the Federal sector, enhancing diversity 

of thought and methods and enriching 

the workforce. In that scenario, the 

Federal government recoups the value 

of the training and development 

invested in the employee when he or 

she was previously in Federal service 

and recoups the benefit of the additional 

training and development the person 

received while working outside of 

government. It can be a benefit for 

Federal workers to gain new 

perspectives on how to best deliver 

agency missions from jobs outside of 

government, and OPM seeks to facilitate 

agencies’ ability to pursue that benefit 

by permitting them to select former 

Federal employees non-competitively, 

when they qualify for posted positions, 

even if the grade level of or promotion 

potential for the position exceeds the 

grade the former employee previously 

held. 

Seven individuals, two Federal 

agencies and the Federal Employees’ 

Union state the changes will discourage 

current Federal employees, if someone 

is hired noncompetitively, because 

current Federal employees do not have 

the same opportunity to compete for a 

higher graded position; they believe this 

hiring will be abused. It is more 

accurate to view the two methods of 

qualifying for selection as counterparts 

for two different groups of people with 

prior experience in Government. Both 

former successful Federal employees 

and current successful employees will 

have the ability to qualify and be 

selected through methods that recognize 

the knowledge, skills, and abilities they 

have acquired, though through different 

paths. We also note that an agency that 

ultimately reinstates an individual to a 

higher grade level or with greater 

promotion potential, using this 

authority, must first have complied with 

public notice requirements, met CTAP/ 

ICTAP procedures, considered other 

candidates from outside their agency 

pursuant to the VEOA and Land 

Management requirements; assessed 

that the individual met all qualifications 

requirements; and concluded that the 

former employee was the candidate 

with the highest relative level of 

knowledge, skills, and experience, in 

accordance with the Merit Systems 

Principles. As previously noted, OPM 

believes these safeguards are adequate 

to protect this discretionary flexibility 

from abuse. OPM will assess agency use 

of this flexibility as part of its on-going 

oversight work or consider whether to 

conduct a specific evaluation of this 

flexibility after it has been in operation 

for a year, depending on how widely it 

is used. This proposal also does not 

eliminate an agency’s discretion to limit 

the area of consideration to agency 

employees when filling positions. We 

are simply providing a new option for 

agencies that expands choices and 


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reflects the fact that employees who 

have moved to jobs outside government 

to develop their abilities may wish to 

come back to Federal service in a 

position that makes good use of newly 

acquired skills. Agencies may lose out 

on such candidates if their only means 

of re-entry continues to be to return to 

a position at the last grade they 

occupied or apply again through the sort 

of open competitive examination that 

they underwent when they originally 

entered Government service. 

Two individuals and 3 Federal 

agencies questioned OPM’s assertion 

that former employees actually acquire 

skills or experience in private industry 

that would qualify them for noncompetitive appointment to higher 

graded positions under this rule. In 

addition, these commenters stated 

OPM’s argument is not substantive and 

lacks merit and logic. OPM is not 

asserting that all former employees will 

have acquired the sorts of skills or 

experience in the private sector that 

would qualify them for appointment to 

higher-graded positions than the 

positions in the Government they 

previously held, or that they will 

necessarily be among the best 

candidates for the position. OPM simply 

recognizes that some individuals may, 

in fact, acquire such skills and or 

experience. If they, do, the proposed 

rule provides agencies the flexibility to 

select and reinstate such individuals in 

hiring processes for particular positions, 

at the grade level for which those 

individuals qualify, just as agencies may 

appoint other individuals from outside 

of the agency’s workforce at a grade 

level appropriate to their knowledge, 

skills, and abilities. OPM believes its 

rationale for this rule is sound: That 

permitting individual agencies to 

appoint a former successful Federal 

employee at a grade level for which the 

employee qualifies, benefits 

Government, by attracting former 

employees who have obtained 

important new knowledge, skills, and 

abilities from outside of government and 

thus enhancing the choices available to 

the agency under the Merit System 

Principles. For example, the an agency 

could secure a huge benefit if an 

individual was first hired into an entrylevel position through a normal 

competitive process, spent several years 

with the agency learning about a 

program and obtaining valuable training 

and development, then went to private 

industry to experience the impact of the 

program first hand, then went to a state 

government to become a program 

manager of a similar state program, and 

now wants to return to her original 

agency as a program manager for the 

Federal program. There is value in 

facilitating an agency’s ability to select 

such an individual, in a particular 

hiring action, through a non-competitive 

process. The presence of restrictions on 

the grade level to which an individual 

may be reinstated currently serves as a 

disincentive for individuals to consider 

rejoining the Federal workforce. 

One individual commented that the 

proposed rule is not in the best interest 

of the American people. OPM disagrees. 

First, we note that the proposed rule is 

a discretionary action but used requires: 

The applicant to be reinstatement 

eligible, meet time-in-grade 

requirements, and meet all 

qualifications requirements needed for 

the position the individual is seeking. It 

also requires the agency to adhere to the 

Merit System Principles when using this 

authority. Because of these safeguards, 

OPM believes the proposed language is 

in the public interest; it provides wider 

choice to agencies by encouraging 

qualified former employees to apply, 

thereby enhancing merit. 

One Federal agency commented that 

the language at the new proposed 

paragraph 335.103(c)(3)(viii) does not 

clearly emphasize that these enhanced 

skills/experiences were obtained in the 

private sector. The comment is 

ambiguous; OPM interprets it to mean, 

‘‘Proposed paragraph 335.103(c)(3)(viii) 

does not clearly emphasize that these 

enhanced skills/experience, putatively 

gained in the private sector, were 

actually acquired.’’ When using this 

authority, a hiring agency must 

determine, based on an assessment of all 

of the pertinent skills, abilities and 

experience the applicant possesses, that 

the applicant possesses the 

qualifications required for the position 

to which he or she has applied and the 

agency is seeking to fill, including the 

grade level at which the agency intends 

to fill it. Reinstatement is available only 

if the agency determines the applicant 

does possess such qualifications. If the 

agency determines the applicant is 

qualified, for example, for a higher 

grade than that of the position the 

applicant had in a prior federal job, this 

rule rules allows the agency the 

discretion to appoint the applicant at 

that level, notwithstanding the grade of 

the position the applicant previously 

occupied. 

One Federal agency suggested OPM 

provide an exception to ICTAP under 

this hiring authority. OPM is not 

adopting this suggestion. The purpose of 

ICTAP is to restore employees who were 

involuntarily separated to comparable 

positions for which they are deemed to 

be well-qualified. In other words, ICTAP 

is a means to ‘make an employee whole’ 

whose career was disrupted through no 

fault (or action) of that employee. An 

exception to ICTAP would vacate the 

selection priority that ICTAP eligible 

individuals would otherwise have when 

applying for positions. 

One Federal agency suggested OPM 

include a statement that former 

employees who received a Voluntary 

Separation Incentive Payment (VSIP) 

must repay the VSIP if rehired under 

this rule. OPM is not adopting this 

recommendation because VSIP 

repayment provisions already exist at 5 

CFR part 576 subpart B. Agencies must 

ensure that any hiring action is made in 

accordance with 5 CFR 576 subpart B 

regardless of the authority under which 

the individual is being appointed. 

An individual asked what research 

OPM conducted to support the claim 

that the proposed rule would ‘‘benefit’’ 

both agencies as well as individuals 

seeking reemployment with the 

government. OPM believes the benefits 

to agencies to be self-evident: The 

regulation will provide greater choice to 

agencies, and provide an ability to 

recruit back to Government former 

Federal employees who have developed 

enhanced or higher-level skillsets than 

they had when they left government. 

This proposed regulation is part of 

OPM’s on-going efforts to provide tools 

to help agencies attract and retain the 

talent they need to carry out their 

mission requirements. 

One individual and three Federal 

agencies asked OPM to clarify the 

phrase ‘‘most recent’’ in the context of 

using the performance rating from an 

individual’s last Federal appointment. 

These commenters also asked that OPM 

explain the value of relying on the most 

recent performance rating if the former 

employee has been out of Federal 

service for many years. The term ‘‘most 

recent’’ means the last Federal rating of 

record under 5 CFR part 430 an 

individual received from his or her last 

career or career-conditional position. 

The value of using a former employee’s 

most recent (i.e., last) rating of record 

under 5 CFR part 430 for these purposes 

is to ensure the individual was 

performing to expectations at the time 

he or she left Federal service and to 

provide consistency with other 

requirements for career advancement in 

the competitive service. Under 5 CFR 

335.104, performance is an important 

factor for advancement to a higher grade 

level. Typically, agencies consider an 

individual’s performance during the 

rating cycle that precedes the personnel 

action to be taken or the most recent 

rating of record. This is especially so for 

appointments (including 


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reinstatements) or promotions to higher 

grades. Absence of this requirement for 

this noncompetitive appointment by 

reinstatement would create unnecessary 

disparate treatment among individuals 

vying for the same position. 

Two Federal agencies suggested OPM 

eliminate the proposed requirement that 

an individual must have received a 

rating of record of Fully Successful to be 

eligible under these rules. These 

agencies suggested that OPM replace 

this requirement with consideration of 

an individual’s entire Federal 

employment record. OPM is not 

adopting this suggestion. The 

requirement that an individual must 

have a rating of record under 5 CFR part 

430 aligns with 5 CFR 335.104, thus 

providing consistency and fairness with 

respect to Federal employees vying for 

the same position through career ladder 

promotions. An individual whose last 

rating was not fully successful or its 

equivalent may still compete for Federal 

positions under normal competitive 

processes. 

Four Federal agencies stated there are 

inconsistencies by using the word ‘‘if’’ 

at 335.103(c)(1)(vi) and the word 

‘‘provided’’ at 335.103(c)(3)(viii) and 

recommends changing and use the same 

word in both places for consistency. 

OPM disagrees. Section 335.103(c)(1)(vi) 

originally said that an agency must 

apply competitive procedures to 

reinstatement at a higher grade level or 

with more promotion potential. This 

rule added the phrase ‘‘if’’ the 

individual did not wait at least a year 

to reapply or did not have a most recent 

rating of record of Fully Successful or 

above. 335.103(c)(3)(viii) is a new 

section that provides that an agency 

may except from competitive 

procedures reinstatement of an 

employee at a higher grade level or with 

more promotion potential, ‘‘provided’’ 

that the employee has waited at least a 

year and has a most recent rating of 

record of Fully Successful or above. 

Thus, the two provisions are not 

parallel. ‘‘If’’ connotes ‘‘on the condition 

that’’ and ‘‘provided’’ connotes ‘‘as long 

as’’. As a result, OPM is not adopting 

this suggestion. 

Three Federal agencies recommend 

OPM also allow individuals separated 

‘‘involuntarily’’ due to reduction in 

force (RIF), or recovered after disability 

retirement or medical inability to be 

eligible under these rules. OPM agrees 

these provisions should apply to 

individuals who are separated 

involuntarily as a result of a RIF. We 

have modified proposed 

§ 335.103(c)(3)(viii) by removing the 

word ‘‘voluntary’’ in this section. This 

change extends eligibility to any 

individual who is separated for at least 

1 year before being reinstated and has a 

rating of record for his or her most 

recent career or career-conditional 

position of at least Fully Successful (or 

equivalent). Individuals returning to 

work after disability retirement must be 

qualified for higher-graded work the 

same as anyone else and may be subject 

to any requirements pertaining to 

reemployed annuitants and/or 

provisions affecting their retirement 

payments in accordance with 5 U.S.C. 

8837(d) and 5 U.S.C. 8455(a), and the 

corresponding implementing provisions 

at 5 CFR parts 831 and 843. OPM is not 

adopting the suggestion to include 

individuals who recovered after medical 

inability because regulations at 5 CFR 

part 353 subpart C address restoring an 

individual to duty after compensable 

injury or illness. 

Seven individuals, four Federal 

agencies, one professional organization 

and the Federal Employees’ Union 

believe this proposal is contrary to Merit 

System Principles and deprives certain 

bargaining unit employees of their 

collectively bargained right to first 

consideration. OPM disagrees these 

rules are contrary to Merit System 

Principles. These rules allow an agency 

(at its own discretion) to consider an 

individual who has previously 

succeeded as a Federal employee and 

achieved career status at the grade level 

for which the individual currently 

qualifies through a non-competitive 

process. The rules do not require an 

agency to use this authority or to hire 

any particular individual. Agencies 

must still adhere to their merit 

promotion plans and Merit Systems 

Principles in making hiring decisions 

under this authority. An agency could 

require competition under 5 CFR 335, 

Promotion and Internal Placement, if 

the agency chose to do so. OPM also 

disagrees that this proposal will deprive 

employees of any rights those 

employees may have pursuant to their 

agency’s collective bargaining 

agreement (CBA). As to any right of first 

consideration, making selections for a 

position from any appropriate source is 

a management right. 5 U.S.C. 

7106(a)(2)(C)(ii). It would abrogate that 

management right to require an agency 

to limit a selection to bargaining unit 

employees. However, whether a 

currently applicable collectivebargaining provision relating to ‘‘first 

consideration’’ of bargaining-unit 

employees is negotiable and therefore 

enforceable is a case-by-case 

determination to be adjudicated by the 

FLRA and the courts. OPM expresses no 

views concerning any particular 

proposal or provision. In addition, the 

final rule merely allows agencies 

additional flexibility to rehire former 

federal employees but does not require 

them to do so. Thus, we do not agree 

that the final rule will inevitably 

deprive bargaining unit employees of 

first consideration in accordance with 

law. We note that any hiring mechanism 

or authority that permits or requires 

agencies to consider candidates from 

outside the agency’s existing workforce 

can impact the ability for a current 

employee to advance to a higher graded 

position, but, in this case, the changes 

will benefit the effectiveness and 

efficiency of Government and further 

Merit System Principles, by enhancing 

choices. 

One Federal agency requested that 

OPM clarify whether applicants eligible 

under these rules could be eligible for 

the superior qualifications pay-setting 

authority, and, if so, how an individual 

would meet these requirements. 

Agencies may use superior 

qualifications pay-setting authority 

(which is not a hiring authority) to set 

the rate of basic pay upon the first 

appointment as a civilian employee of 

the Federal government or for 

reappointment to a GS position after a 

break in service of 90-days or more, as 

stated at 5 CFR 531. The mechanics of 

how to apply this pay flexibility are 

beyond the scope of the proposed rule. 

Agencies interested in using the 

superior qualifications pay authority 

should refer to 5 CFR 531.212 as well 

as OPM’s Pay Administration guidance 

at https://www.opm.gov/policy-dataoversight/pay-leave/pay-administration/ 

fact-sheets/superior-qualifications-andspecial-needs-pay-setting-authority. 

One individual asked OPM to clarify 

how positions filled using this 

flexibility will be advertised or 

otherwise made available to job-seekers. 

Reinstatement actions made under these 

rules are subject to public notice 

requirements in accordance with 5 

U.S.C. 3327 and 3330 as well as the 

provisions for selection priority for 

displaced Federal employees. This 

means agencies are required to post any 

vacant positions they may fill through 

reinstatement on the USAJOBS website 

(www.usajobs.gov). Applicants should 

visit the USAJOBS website for 

information about positions for which 

they may be interested in applying. 

One agency recommended OPM 

address the parameters for using this 

reinstatement hiring flexibility to ensure 

compliance with merit system 

principles and address how OPM 

oversight will be conducted. Use of this 

hiring authority is discretionary on the 

part of agencies. When using this 


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authority agencies are required to assess 

an applicant’s qualifications for the 

position being filled and avoid relying 

on prohibited considerations in making 

selections in the same manner as they 

would when making any other 

appointment. 

A professional executive association 

suggested OPM develop a legislative 

proposal to further cement the goals of 

this regulation. Further legislation is not 

necessary; 5 U.S.C. 3301 and 3302 

provides the President the statutory 

authority to craft rules governing 

competitive status, career tenure, and 

discretion in hiring. The President 

delegated much of his authority to OPM 

through presidential Civil Service Rules, 

see, especially, 5 CFR 2.2, and provided 

in Rule VII, 5 CFR 7.1, that agencies 

have discretion to fill positions in the 

competitive service by competitive 

appointment or by noncompetitive 

selection of a present or former Federal 

employee. 

Two of the comments we received 

were beyond the scope of the proposed 

changes. One individual could not 

locate a copy of the proposed regulation 

on the regulations.gov website. The 

other commenter recommended OPM 

re-evaluate the 40-hour basic work 

week. 

OPM is making two clarifying changes 

to the final rule which commenters did 

not address. We have added references 

to Civil Service Rules II and VII in the 

‘‘authority’’ listing which are OPM’s 

authority, pursuant to the President’s 

delegation of his own authority under 5 

U.S.C. 3301 and 3302, to establish and 

administer a system that provides for 

career appointments for former 

employees eligible for career 

appointment upon reinstatement, and 

agencies’ authority to select for 

positions in the competitive service by 

competitive appointment or by 

noncompetitive selection of a present or 

former Federal employee. 

OPM has modified the wording in 5 

CFR 335.103(c)(3)(viii) by inserting the 

words, ‘‘before applying for 

reinstatement,’’ to parallel the language 

used in 5 CFR 335.103(c)(1)(vi). 

Regulatory Flexibility Act 

I certify that this regulation will not 

have a significant impact on a 

substantial number of small entities 

because it applies only to Federal 

agencies and employees. 

E.O. 13563 and E.O. 12866, Regulatory 

Review 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule is 

not a ‘‘significant regulatory action,’’ 

under Executive Order 12866 and was 

not reviewed by OMB. 

E.O. 13132, Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rule does not 

have sufficient federalism implications 

to warrant preparation of a Federalism 

Assessment. 

E.O. 12988, Civil Justice Reform 

This regulation meets the applicable 

standard set forth in section 3(a) and 

(b)(2) of Executive Order 12988. 

Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any year and it will not significantly 

or uniquely affect small governments. 

Therefore, no actions were deemed 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995. 

Congressional Review Act 

This action pertains to agency 

management, personnel and 

organization and does not substantially 

affect the rights or obligations of 

nonagency parties and, accordingly, is 

not a ‘‘rule’’ as that term is used by the 

Congressional Review Act (Subtitle E of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA)). Therefore, the reporting 

requirement of 5 U.S.C. 801 does not 

apply. 

Paperwork Reduction Act 

This rule does not impose any new 

reporting or record-keeping 

requirements subject to the Paperwork 

Reduction Act. 

List of Subjects in 5 CFR Part 335 

Government employees. 

Office of Personnel Management 

Alexys Stanley, 

Regulatory Affairs Analyst. 

Accordingly, OPM is amending 5 CFR 

part 335 as follows: 

* * * * * 

PART 335—PROMOTION AND 

INTERNAL PLACEMENT 

■ 1. The authority citation for part 335 

is revised to read as follows: 

Authority: 5 U.S.C. 2301, 2302, 3301, 3302, 

3330; E.O. 10577, E.O. 11478, 3 CFR 1966– 

1970, Comp., page 803, unless otherwise 

noted, E.O. 13087; and E.O. 13152, 3 CFR 

19554–58 Comp., p.218; 5 U.S.C. 3304(f), and 

Pub. L. 106–117, and 5 CFR 2.2 and 7.1. 

Subpart A—General Provisions 

■ 2. In § 335.103, revise paragraph 

(c)(1)(vi) and add paragraph (c)(3)(viii) 

to read as follows: 

§ 335.103 Agency promotion programs. 

* * * * * 

(c) * * * 

(1) * * * 

(vi) Reinstatement to a permanent or 

temporary position at a higher grade or 

with more promotion potential than a 

position previously held on a 

permanent basis in the competitive 

service if the individual did not wait 1 

year or more after separating from 

Federal employment before applying for 

reinstatement, or did not receive a rating 

of record for his or her most recent 

career or career-conditional position of 

at least Fully Successful (or equivalent). 

* * * * * 

(3) * * * 

(viii) Reinstatement in accordance 

with 5 CFR part 315 to any position in 

the competitive service for which the 

individual is qualified at a higher grade 

level or with more promotion potential 

than a career or career-conditional 

position previously held by the 

individual; provided: The individual 

has been separated for at least one year 

before applying for reinstatement, and 

the individual must have received a 

rating of record for his or her most 

recent career or career-conditional 

position of at least Fully Successful (or 

equivalent). 

* * * * * 

[FR Doc. 2021–11894 Filed 6–7–21; 8:45 am] 

BILLING CODE 6325–39–P 


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