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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Rules and Regulations
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 individuals 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 335.103c1vi and the word provided at 335.103c3viii and recommends changing and use the same word in both places for consistency.
OPM disagrees. Section 335.103c1vi 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. 335.103c3viii 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 335.103c3viii by removing the word voluntary in this section. This change extends eligibility to any
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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.
8837d and 5 U.S.C. 8455a, 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 agencys 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.
7106a2Cii. 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
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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 agencys 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 OPMs 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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