[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Rules and Regulations]
[Pages 30375-30379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11894]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

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. 

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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Rules 
and Regulations

[[Page 30375]]



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: 
<a href="/cdn-cgi/l/email-protection#7c11151f1419101019521b100512123c130c11521b130a"><span class="__cf_email__" data-cfemail="0f62666c676a63636a2168637661614f607f6221686079">[email protected]</span></a>.

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, non-competitively, 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 
time-in-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

[[Page 30376]]

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 non-
competitive 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, non-competitively, 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

[[Page 30377]]

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 non-competitive 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 entry-level 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

[[Page 30378]]

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 Sec.  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 
collective-bargaining 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-data-oversight/pay-leave/pay-administration/fact-sheets/superior-qualifications-and-special-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

[[Page 30379]]

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

0
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

0
2. In Sec.  335.103, revise paragraph (c)(1)(vi) and add paragraph 
(c)(3)(viii) to read as follows:


Sec.  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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