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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Rules and Regulations 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 OPMs 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 OPMs 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 agencys 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
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agency as a program manager for the Federal program. There is value in facilitating an agencys 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 335.103c3viii 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 335.103c3viii 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

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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 OPMs 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 individuals 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 employees 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 individuals 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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