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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Rules and Regulations
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 agencys 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
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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 agencys 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. 3304f 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. OPMs 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 agencys 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
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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 agencys 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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