[Federal Register Volume 59, Number 249 (Thursday, December 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32028]
[[Page Unknown]]
[Federal Register: December 29, 1994]
VOL. 59, NO. 249
Thursday, December 29, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 304
RIN 3206-AF37
Expert and Consultant Appointments
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing a rule
to comply with a statutory change requiring OPM to regulate expert and
consultant appointments. The Technical and Miscellaneous Civil Service
Amendments Act of 1992 requires OPM to prescribe regulations for the
employment and pay of persons appointed under the expert and consultant
authority and to ensure agency compliance. In making the statutory
change, Congress adopted a General Accounting Office recommendation for
achieving better agency compliance with the legal requirements of this
special appointment authority.
DATES: Comments must be received on or before February 27, 1995.
ADDRESSES: Send or deliver written comments to Leonard R. Klein,
Associate Director for Career Entry, U.S. Office of Personnel
Management, 1900 E Street, NW., room 6F08, Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
Tracy E. Spencer (202) 606-0830, or fax (202) 606-2329.
SUPPLEMENTARY INFORMATION: A longstanding law, 5 U.S.C. 3109,
authorizes agencies to make excepted appointments of qualified persons
to perform expert or consultant work that is temporary (not to exceed 1
year) or intermittent. Business and government have used experts and
consultants for many years to obtain outside advice and expertise to
improve services and operations.
In 1991, the General Accounting Office (GAO) reported its review of
expert and consultant appointments made under section 3109 by nine
installations during a 30-month period. GAO determined that 37 out of
106 of those appointments were improper because the duties were
appropriate for permanent employees or the appointees were not
qualified as experts or consultants. GAO also found instances in which
agencies used the authority as a quick way to hire someone destined for
other duties or to fill in during staff shortages; did not know of
other short-term hiring authorities; misread Federal Personnel Manual
(FPM) guidance as allowing experts or consultants to perform regular,
continuing work; did not follow OPM internal control procedures; or
lacked required documentation.
Among its report recommendations, GAO asked Congress to amend 5
U.S.C. 3109 to authorize OPM to regulate the employment of experts and
consultants. Congress responded by enacting section 2(8) of Public Law
102-378, October 2, 1992, to require OPM to regulate appointments under
5 U.S.C. 3109 and to collect data on pay and days worked.
OPM recognizes agency needs to obtain outside opinion and expertise
to improve programs, organizations, operations, and services. The
purpose of section 3109 is to allow agencies to bring in special types
of employees to address special situations requiring short-term or
occasional attention. By bringing their talents and insights to bear on
new or unusual problems, experts and consultants can help agencies work
more economically and effectively.
At the same time, agencies may use section 3109 only to meet
genuine expert and consultant needs. For other short-term needs,
agencies should consider other appointing authorities, including
special need, temporary limited, term, various Schedule A, temporary
Schedule C, SES limited term, and SES limited emergency.
a. Coverage
Our proposed regulations apply only to Federal civil service
appointments made under 5 U.S.C. 3109. They do not apply to
appointments of experts and consultants under other authorities or to
procurement contracts for consulting services.
b. Definitions
The regulations provide definitions of ``expert,'' ``consultant,''
and related terms. The definitions vary slightly from those in FPM
Chapter 304, and reflect GAO, OPM, and former Civil Service Commission
views and opinions issued over many years. We clarified those
definitions in FPM Letter 304-4, dated January 4, 1993. One difference
from our past instructions is the definition of intermittent
employment. Our proposed regulations replace that definition with OPM's
general definition of ``intermittent employment'' published at 5 CFR
340.401(c), that is, ``employment without a regularly scheduled tour of
duty.''
c. Authority
The section 3109 authority is summarized. Restrictions on agency
use reflect GAO concerns and OPM guidance. Use of the authority for
persons awaiting Presidential appointment is clarified.
d. Reappointments
The law requires that experts and consultants be employed on a
temporary or intermittent basis. Unlimited reappointments would not
comply with this condition. Therefore, the proposed regulations provide
that experts and consultants who work on a full-time basis may be
employed for no more than 2 years (initial appointment not to exceed 1
year and no more than one 1-year extension). This parallels our revised
limit for all temporary appointments.
For experts and consultants who work less than full time, the
proposed regulations would give agencies two options for determining
reappointment eligibility. One option would allow unlimited
reappointments as long as an expert or consultant worked no more than 6
months (130 days) in a service year. Experts and consultants who exceed
the 6-month limit could be reappointed only once. This, too, tracks the
proposed limits for temporary appointments.
The second option would set a maximum lifetime earnings limit of
twice the annual rate of basic pay rate for GS-15, step 10 (or for
Executive Level IV if that maximum payable rate is specifically
authorized in the agency's appropriation or other statute). An agency
could reappoint an expert or consultant as long as his/her cumulative
earnings did not exceed the lifetime limit. (This option would not, of
course, apply to experts and consultants employed without
compensation.)
An agency could use either or both reappointment options, but not
for the same employee. The agency would be expected to use objective
criteria (e.g., pay rate, nature of duties, work schedule) to determine
which reappointment option would apply to specific expert and
consultant positions.
e. Determining Rate of Pay
The rate of pay for experts and consultants is set by
administrative action. Each agency has the flexibility to establish pay
on an hourly or daily basis; however, agencies should consider the
implications involved, such as possible entitlement to overtime pay for
``hourly'' employees, the limitation on the maximum daily rate of basic
pay, etc. Agencies also have authority to appoint experts and
consultants under 5 U.S.C. 3109 without pay because these appointments
may be made without regard to the pay entitlements that would normally
apply under title 5 of the United States Code.
In determining the rate of pay, agencies must consider criteria
such as the level and difficulty of work to be performed, the
individual's qualifications, comparable Federal and non-Federal pay
rates, and the availability of qualified candidates.
f. Daily and Biweekly Pay Limitations
Under 5 U.S.C. 3109, the maximum daily rate of pay for experts and
consultants employed by agencies subject to chapter 41 (the General
Schedule classification system) and subchapter III of chapter 53
(General Schedule pay rates) of title 5, United States Code, is limited
to the daily equivalent of the highest rate payable under 5 U.S.C.
5332--that is, the General Schedule rate for GS-15, step 10, excluding
any geographic or locality pay adjustment or special salary rate.
Aggregate pay for the day (including any locality pay under 5 U.S.C.
5304 or any premium pay under subchapter V of chapter 55 of title 5,
United States Code), not just basic pay, is subject to the daily pay
limitation.
Agencies may pay a daily rate exceeding the daily rate for GS-15,
step 10, only when specifically authorized to do so by an appropriation
or other statute. Any daily rate limit must be computed under the
provisions of 5 U.S.C. 5504(b)--that is, by dividing the applicable
annual rate by 2,087 hours and then multiplying it by 8 hours.
(Agencies are not expected to pay the maximum daily rate routinely.)
As provided by section 101(c) of the Federal Employees Pay
Comparability Act of 1990 (FEPCA), and reference in statutes other than
title 5, United States Code, to a maximum daily rate equivalent to the
former rate for GS-18 (under former section 5108 of title 5, United
States Code) now will be read as subject to the maximum daily
equivalent rate payable under 5 U.S.C. 5376--that is, the rate for
level IV of the Executive Schedule.
The proposed regulations also establish a biweekly limitation on
expert and consultant pay subject to 5 U.S.C. 3109. For experts and
consultants subject to the GS-15, step 10, daily pay limitation, the
aggregate amount of pay (including premium pay and locality pay) for
any biweekly pay period may not exceed the biweekly rate of basic pay
for GS-15, step 10, excluding any geographic or locality pay adjustment
or special salary rate. The biweekly rate must be computed under the
provisions of 5 U.S.C. 5504(b)--that is, by dividing the annual GS-15,
step 10, rate by 2,087 hours and then multiplying by 80 hours. For
experts and consultants covered under laws that provide a pay
limitation above the GS-15, step 10, rate, the Executive Level IV
limitation on basic pay established under 5 U.S.C. 5373 may be
applicable.
g. Pay and Leave Administration
When managing pay and leave administration for experts and
consultants. Agencies should examine carefully each underlying
authority to determine which pay and leave entitlements apply. For
example, experts and consultants are not entitled to interim geographic
adjustments and locality-based comparability payments under title 5,
except by specific agency request for extension of the authority.
(Payments to non-GS employee categories must be consistent with 5
U.S.C. 5304 and OPM's regulations at 5 CFR, part 531, subpart F.)
Otherwise, agencies may adjust pay for experts and consultants to take
into account geographic pay considerations by exercising their
administrative pay-setting authority under 5 U.S.C. 3109, subject to
the pay-setting criteria in these regulations and the applicable pay
limitations.
Experts and consultants are not entitled to overtime pay if they
are paid on a daily basis. They may be entitled to overtime pay if paid
on an hourly basis and if additional overtime work (more than 8 hours
in a day or more than 40 hours in a week) is ordered and approved by
the agency. Agencies should note the possibility that some types of
experts or consultants may be covered by the Fair Labor Standards Act
(FLSA) overtime pay provisions because they do not meet the criteria
for an FLSA exemption.
Experts and consultants who are appointed on an intermittent basis
or who are on intermittent tours of duty--i.e., not regularly
scheduled--are not entitled to earn leave. However, if appointed as
temporary employees with a regularly scheduled tour of duty, they are
entitled to earn and use leave based on the established regular tour of
duty.
Experts and consultants with intermittent tours of duty are not
entitled to holiday pay for a day on which they perform no work or to
premium pay for holiday work. Those with a regularly scheduled tour of
duty are entitled to paid holidays or holiday premium pay, subject to
applicable pay limitations.
Expert and consultant pay is subject to the setoff provisions for
civil service annuity payments and retired military pay.
h. Reports
Section 2(8) of Public Law 102-378 also added subsection (e) to 5
U.S.C. 3109 to require each agency to report annually to OPM the number
of days worked and the pay received for each expert and consultant. OPM
will provide separate reporting instructions.
i. Compliance
Agencies are responsible for ensuring that their use of this
employment authority complies with 5 U.S.C. 3109 and those regulations.
Agencies must provide the controls and oversight necessary to ensure
compliance. OPM will review as necessary both agency employment of
experts and consultants and agency control and oversight of this
employment authority.
Because agencies will be responsible for control and oversight,
present FPM internal control requirements for agencies will be
discontinued. Those requirements were preappointment review and
certification, quarterly internal reviews, and the annual Notification
to employees of legal and FPM requirements. Agencies may adopt these
and/or other measures as part of their oversight and control systems.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it applies
only to Federal Government employment practices.
List of Subjects in 5 CFR Part 304
Administrative practice and procedure, Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM proposes to add part 304 to title 5, Code of
Federal Regulations, as follows:
PART 304--EXPERT AND CONSULTANT APPOINTMENTS
Sec.
304.101 Coverage.
304.102 Definitions.
304.103 Authority.
304.104 Determining rate of pay.
304.105 Daily and biweekly pay limitations.
304.106 Pay and leave administration.
304.107 Reports.
304.108 Compliance.
Authority: 5 U.S.C. 3109.
Sec. 304.101 Coverage.
These regulations apply to the appointment of experts and
consultants as Federal employees under 5 U.S.C. 3109. They do not apply
to the appointments of experts and consultants under other employment
authorities or to the procurement of services by contracts under the
procurement laws.
Sec. 304.102 Definitions.
For purposes of this part:
(a) A consultant is a person who can provide valuable and pertinent
advice generally drawn from a high degree of broad administrative,
professional, or technical knowledge or experience. When an agency
requires public advisory participation, a consultant also may be a
person who is affected by a particular program and can provide useful
views from personal experience.
(b) A consultant position is one that requires providing advice,
views, opinions, alternatives, or recommendations on a temporary or
intermittent basis on issues, problems, or questions presented by a
Federal official.
(c) An expert is a person who is specially qualified by education
and experience to perform difficult and challenging tasks in a
particular field beyond the usual range of achievement of competent
persons in that field. An expert is regarded by other persons in the
field as an authority or practitioner of unusual competence and skill
in a professional, scientific, technical or other activity.
(d) An expert position is one that requires the services of a
specialist with skills superior to those of others in the same
profession, occupation, or activity to perform work on a temporary or
intermittent basis assigned by a Federal official. For example, a
microbial contamination specialist may apply new test methods to
identify bacteria on products, a computer scientist may adapt advanced
methods to develop a complex software system, or a plate maker may
engrave a novel design.
(e) Intermittent employment, as defined in part 340, subpart D, of
this chapter, means employment without a regularly scheduled tour of
duty.
(f) Temporary employment means employment not to exceed 1 year. An
expert or consultant serving under a temporary appointment may have a
full-time, part-time, or intermittent work schedule.
Sec. 304.103 Authority.
(a) Basic authority. When authorized by an appropriation or other
statute to use 5 U.S.C. 3109, an agency may appoint a qualified expert
or consultant to an expert or consultant position that requires only
intermittent or temporary employment. Such an appointment is excepted
from competitive examination, position classification, and the General
Schedule pay rates. An individual appointed under this authority may be
reappointed in the same agency only as provided in paragraph (c) of
this section.
(b) Inappropriate use. An agency must not use 5 U.S.C. 3109 to
appoint an expert or consultant:
(1) To a position requiring Presidential appointment. However,
subject to the conditions of this part, an agency may appoint an
individual awaiting final action on a Presidential appointment to an
expert or consultant position.
(2) To a Senior Executive Service position (including an FBI or DEA
Senior Executive Service position).
(3) To perform managerial or supervisory work, to make final
decisions on substantive policies, or to otherwise function in the
agency chain of command (e.g., to approve financial transactions,
personnel actions, etc.).
(4) To do work performed by the agency's regular employees.
(5) To fill in during staff shortages.
(6) Solely in anticipation of giving that individual a career
appointment. However, subject to the conditions of this part, an agency
may appoint an individual to an expert or consultant position pending
Schedule C appointment or noncareer appointment in the Senior Executive
Service.
(c) Reappointment. (1) An agency may employ an expert or consultant
who works on a full-time basis for a maximum of 2 years--i.e., on an
initial appointment not to exceed 1 year and a reappointment not to
exceed 1 additional year.
(2) An agency may reappoint an expert or consultant who works on a
part-time or intermittent schedule in accordance with one of the
following options. The agency must determine in advance of the
appointment which option it will use and must base its determination on
objective criteria (e.g., nature of duties, pay level, whether or not
work is regularly scheduled). Option 1 must be applied to
reappointments of experts and consultants appointed without
compensation.
(i) Option 1--Annual service. An agency may reappoint an expert or
consultant, with no limit on the number of reappointments, as long as
the individual is paid for no more than 6 months (130 days or 1,040
hours) of work, or works for no more than that amount of time without
compensation, in a service year. (The service year is the calendar year
that begins on the date of the individual's initial appointment in the
agency.) An expert or consultant who exceeds this limit in his/her
first service year may be reappointed for 1 additional year. An expert
or consultant who exceeds the limit during any subsequent service year
may not be reappointed thereafter.
(ii) Option 2--Cumulative earnings. Each expert or consultant will
have a lifetime limit of twice the maximum annual rate payable under
the annualized basic pay limitations of section 304.105. The agency may
reappoint an expert or consultant until his/her total earnings from
expert or consultant employment with the agency reach the lifetime
maximum, as determined by using the applicable current maximum salary
rate. At that point, the employment must be terminated.
Sec. 304.104 Determining rate of pay.
(a) The rate of basic pay for experts or consultants is set by
administrative action. The head of an agency, or his or her designee,
must determine the appropriate rate of basic pay on an hourly or daily
basis, subject to the limitations described in Sec. 304.105.
(b) The head of an agency, or his or her designee, shall make the
pay determination based on the following criteria:
(1) The level and difficulty of the work to be performed;
(2) The qualifications of the expert or consultant;
(3) The pay rates of comparable individuals performing similar work
in Federal or non-Federal sectors; and
(4) The availability of qualified candidates.
(c) An expert or consultant appointed under 5 U.S.C. 3109 may be
employed without pay, provided the individual agrees in advance in
writing to waive any claim for compensation for those services.
Sec. 304.105 Daily and biweekly basic pay limitations.
(a) Unless specifically authorized by an appropriation or other
statute, agencies subject to chapter 51 and subchapter III of chapter
53 of title 5, United States Code, may not pay for any 1 day an
aggregate amount of pay (including basic pay, locality pay under
subpart F of part 531 of this chapter, and premium pay under subpart A
of part 550 of this chapter) that exceeds the daily equivalent of the
highest rate payable under 5 U.S.C. 5332--that is, the daily rate for
GS-15, step 10, under the General Schedule (excluding locality pay or
any other additional pay). The daily rate is computed by dividing the
annual GS-15, step 10, rate by 2,087 hours to find the hourly rate of
pay and by multiplying the hourly rate of pay by 8 hours.
(b) Unless specifically authorized by an appropriation or other
statute, an expert or consultant shall not be paid for any biweekly pay
period an aggregate amount of pay (including basic pay, locality pay
under subpart F of part 531 of this chapter, and premium pay under
subpart A of part 550 of this chapter) in excess of the biweekly rate
of pay for GS-15, step 10, under the General Schedule (excluding
locality pay or any other additional pay). The biweekly rate is
computed by dividing the annual GS-15, step 10, rate by 2,087 hours to
find the hourly rate of pay and by multiplying the hourly rate of pay
by 80 hours.
Sec. 304.106 Pay and leave administration.
(a) Experts or consultants are not entitled to receive automatic
adjustments in their rates of basic pay at the time of a change in the
annual rates of pay under 5 U.S.C. 5303 unless specifically provided
for in the official appointment document.
(b) Experts or consultants paid on a daily rate basis are not
entitled to overtime pay under section 5542 of title 5, United States
Code. Otherwise, experts and consultants qualify for premium pay under
subchapter V of chapter 55 of title 5, United States Code, if they meet
the applicable eligibility requirements (including the requirement that
an employee have a regularly scheduled tour of duty, where applicable).
(c) Experts or consultants may be entitled to overtime pay under
the Fair Labor Standards Act if they are nonexempt under OPM
regulations implementing that Act for Federal employees.
(d) An expert or consultant is entitled to pay for service on an
intermittent basis from more than one expert or consultant position,
provided the pay is not received for the same period of time (5 U.S.C.
5533(d)(1)).
(e) Experts or consultants are subject to the provisions of 5
U.S.C. 8344 and 8468 on reduction of basic pay by the amount of annuity
received.
(f) Experts or consultants are subject to the provisions of 5
U.S.C. 5532 on reduction of retired military pay.
(g) Experts or consultants with a regularly scheduled tour of duty
are entitled to sick and annual leave in accordance with chapter 63 of
title 5, United States Code, and to pay for any holiday occurring on a
regularly scheduled workday on which they perform no work. Those
employed on an intermittent basis do not earn leave and are not
entitled to paid holidays.
Sec. 304.107 Reports.
As required by 5 U.S.C. 3109(e), each agency shall report to the
Office of Personnel Management on an annual basis:
(a) The number of days the agency employed each paid expert or
consultant; and
(b) The total amount the agency paid each expert or consultant so
employed.
Sec. 304.108 Compliance.
(a) Each agency using 5 U.S.C. 3109 must--
(1) Establish and maintain a system of controls and oversight
necessary to assure compliance with 5 U.S.C. 3109 and these
regulations;
(2) Inform officials and employees using the authority of the
statutory and regulatory requirements through management briefings,
training classes, written instructions, or other effective means; and
(3) Include review of experts and consultants in its personnel
management evaluation (PME) program. An agency without a PME program
must review experts and consultants as part of its internal oversight
activities.
(b) OPM will, as necessary--
(1) Review agency employment of experts and consultants and agency
controls and oversight to determine compliance; and
(2) Issue instructions and guidance to agencies on employing
experts and consultants and on reporting procedures.
[FR Doc. 94-32028 Filed 12-28-94; 8:45 am]
BILLING CODE 6325-01-M
