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Rules and Regulations Federal Register

Vol. 71, No. 180

Monday, September 18, 2006

This section of the FEDERAL REGISTER consideration of the agencies’ duty back to the individual’s pre-
contains regulatory documents having general comments, OPM dropped the question assignment employing organization.
applicability and legal effect, most of which and answer format in this final redraft The same agency also asked OPM to
are keyed to and codified in the Code of of part 334. include a statement in § 334.102(c)
Federal Regulations, which is published under One agency suggested we rename the clarifying that ‘‘successive assignments
50 titles pursuant to 44 U.S.C. 1510.
title of this part by including a reference with a break of no more than 60
The Code of Federal Regulations is sold by to the Intergovernmental Personnel Act. calendar days will be regarded as
the Superintendent of Documents. Prices of We agree the current title does not continuous service’’ per guidance on
new books are listed in the first FEDERAL accurately describe the nature of OPM’s Web site. For the convenience of
REGISTER issue of each week. assignments under this part, so we have the reader we have added the statement
renamed part 334 as ‘‘Temporary pertaining to successive assignments of
Assignments under the at least 60 calendar days to § 334.102(c),
OFFICE OF PERSONNEL Intergovernmental Personnel Act (IPA)’’. which is consistent with longstanding
MANAGEMENT The other agency suggested OPM OPM policy.
provide definitions of the terms listed in E.O. 12866 Regulatory Review
5 CFR PART 334 § 334.102 rather than offer readers the
RIN 3206–AJ94 statutory citations where these terms are This rule has been reviewed by the
defined. We agree having the definitions Office of Management and Budget in
Temporary Assignments Under the in the regulation improves the accordance with E.O. 12866.
Intergovernmental Personnel Act (IPA) readability of part 334, so we have Regulatory Flexibility Act
added the definitions along with their
AGENCY: Office of Personnel I certify that these regulations would
statutory citations in § 334.102.
Management. not have a significant economic impact
The other agency asked that OPM
ACTION: Final. on a substantial number of small entities
clarify whether the definition of
because they would apply only to
SUMMARY: The Office of Personnel
‘‘Institution of higher education’’
Federal agencies and employees.
Management (OPM) is issuing final includes graduate level programs. OPM
regulations on a plain language rewrite agrees clarification is necessary and we Lists of Subjects in 5 CFR Part 334
of its regulations regarding the have revised the definition in § 334.102 Colleges and universities,
Intergovernmental Personnel Act to include longstanding OPM policy Government employees, Indians,
Mobility Program as part of a broader that this definition includes both Intergovernmental relations.
review of OPM regulations. The purpose undergraduate and graduate study.
The same agency also asked that OPM U.S. Office of Personnel Management.
of the revision is to make the regulations Linda M. Springer,
more readable. set a specific time period for
maintaining copies of each written Director.
DATES: October 18, 2006.
agreement that documents the ■ Accordingly, OPM is revising 5 CFR
FOR FURTHER INFORMATION CONTACT: obligations and responsibilities of each part 334 to read as follows:
Darlene Phelps by telephone on 202– party to an IPA assignment. OPM
606–0960, by FAX on 202–606–2329, by believes that each agency should have PART 334—TEMPORARY
TDD on 202–418–3134, or by e-mail at the flexibility to best determine the ASSIGNMENTS UNDER THE appropriate time period for retaining INTERGOVERNMENTAL PERSONNEL
SUPPLEMENTARY INFORMATION: OPM copies of its written agreements under ACT (IPA)
published for comment on August 22, this part. We have modernized the final Sec.
2003, (at 68 FR 50726) proposed regulations, in § 334.106(b), to allow 334.101 Purpose.
regulations revising part 334 of title 5, agencies the flexibility for establishing 334.102 Definitions.
Code of Federal Regulations, to make it the time period for retaining copies of 334.103 Requirements for approval of
more readable. The principal purpose of its written agreements under the IPA instrumentalities or authorities of State
that proposed revision was to clarify the program. and local governments and ‘‘other
regulations. OPM also solicited The second agency asked that OPM organizations.’’
334.104 Length of assignment.
comments on whether certain non- clarify the IPA participation restriction 334.105 Obligated service requirement.
Federal entities define themselves as: (1) in § 334.104(c) that a Federal agency 334.106 Requirement for written agreement.
An ‘‘instrumentality or authority of a may not send or receive an individual 334.107 Termination of agreement.
State or States or local government’’ as on an IPA assignment for more than four 334.108 Reports required.
cited in 5 U.S.C. 3371; or (2) a ‘‘Federal- continuous years without at least a 12- Authority: 5 U.S.C. 3376; E.O. 11589, 3
State authority or instrumentality’’ as month return to duty back to the CFR 557 (1971–1975)
cited in 5 U.S.C. 3371. organization where the individual was
Two agencies submitted comments on employed before the IPA assignment. § 334.101 Purpose.
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OPM’s proposed part 334 regulations. OPM believes that the present language The purpose of this part is to
Both agencies believed that the question in § 334.104(c) sufficiently states OPM’s implement title IV of the
and answer format in the proposed intention that an individual may not Intergovernmental Personnel Act (IPA)
regulations required the reader to spend participate on an assignment under this of 1970 and title VI of the Civil Service
more, rather than less time, to locate part for more than four continuous years Reform Act. These statutes authorize the
information in part 334. After without a minimum 12-month return to temporary assignment of employees

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54566 Federal Register / Vol. 71, No. 180 / Monday, September 18, 2006 / Rules and Regulations

between the Federal Government and (2) Any general or special purpose § 334.104 Length of assignment.
State, local, and Indian tribal agency of such a political subdivision, (a) The head of a Federal agency, or
governments, institutions of higher instrumentality, or authority; his or her designee, may make an
education and other eligible Other organization as defined in 5 assignment for up to 2 years, which may
organizations. U.S.C. 3371(4) means: be extended for up to 2 more years if the
(1) A national, regional, Statewide, parties agree.
§ 334.102 Definitions.
area wide, or metropolitan organization (b) A Federal agency may not send an
In this part: representing member State or local employee on an assignment if that
Assignment means a period of service person is a Federal employee and has
under chapter 33, subchapter VI of title participated in this program for more
(2) An association of State or local
5, United States Code; than a total of 6 years during his or her
Employee, for purposes of public officials;
(3) A nonprofit organization which Federal career. OPM may waive this
participation in this program, means an
offers, as one of its principal functions, restriction upon the written request of
individual serving in a Federal agency
professional advisory, research, the agency head, or his or her designee.
under a career or career-conditional
educational, or development services, or (c) A Federal agency may not send or
appointment, including career
related services, to governments or receive an employee on an assignment
appointees in the Senior Executive
universities concerned with public if the employee has participated in this
Service, individuals under
management; or program for 4 continuous years without
appointments of equivalent tenure in
(4) A federally funded research and at least a 12-month return to duty with
excepted service positions (including,
development center. the organization from which the
e.g., the Presidential Management
State as defined in 5 U.S.C. 3371(1) employee was originally assigned.
Fellows Program, the Federal Career
means a State of the United States, the Successive assignments with a break of
Intern Program, the Student Career
District of Columbia, the no more than 60 calendar days will be
Experience Program, and Veterans
Commonwealth of Puerto Rico, the regarded as continuous service under
Recruitment Appointments (VRA)), or
Trust Territory of the Pacific Islands, the the mobility authority.
an individual employed for at least 90
days in a career position with a State, Northern Mariana Islands, and a § 334.105 Obligated service requirement.
local, or Indian tribal government, territory or possession of the United
(a) A Federal employee assigned
institution of higher education, or other States; an instrumentality or authority of
under this part must agree, as a
eligible organization; a State or States; and a Federal-State
condition of accepting an assignment, to
Federal agency as defined in 5 U.S.C. authority or instrumentality.
serve with the Federal Government
3371(3) means an Executive agency, § 334.103 Requirements for approval of upon completion of the assignment for
military department, a court of the instrumentalities or authorities of State and a period equal to the length of the
United States, the Administrative Office local governments and ‘‘other assignment.
of the United States Courts, the Library organizations.’’ (b) If the employee fails to carry out
of Congress, the Botanic Garden, the (a) Organizations interested in this agreement, he or she must
Government Printing Office, the participating in the IPA mobility reimburse the Federal agency for its
Congressional Budget Office, the United program as an instrumentality or share of the costs of the assignment
States Postal Service, the Postal Rate authority of a State or local government (exclusive of salary and benefits). The
Commission, the Office of the Architect or as an ‘‘other organization’’ as set out head of the Federal agency, or his or her
of the Capitol, the Office of Technology in this part must have their eligibility designee, may waive this
Assessment, and such other similar certified by the Federal agency with reimbursement for good and sufficient
agencies of the legislative and judicial which they are entering into an reason.
branches as determined appropriate by assignment.
the Office of Personnel Management; § 334.106 Requirement for written
(b) Written requests for certification agreement.
Indian tribal government as defined in
must include a copy of the
5 U.S.C. 3371(2)(c) means any Indian (a) Before the assignment begins, the
tribe, band, nation, or other organized assigned employee and the Federal
(1) Articles of incorporation;
group or community, including any agency, the State, local, Indian tribal
Alaska Native village as defined in the (2) Bylaws; government, institution of higher
Alaska Native Claims Settlement Act (85 (3) Internal Revenue Service nonprofit education, or other eligible organization
Stat. 668), which is recognized as statement; and must enter into a written agreement
eligible for the special programs and (4) Any other information which recording the obligations and
services provided by the United States indicates that the organization has as a responsibilities of the parties, as
to Indians because of their status as principal function the offering of specified in 5 U.S.C. 3373–3375.
Indians and includes any tribal professional advisory, research, (b) Federal agencies must maintain a
organization as defined in section 4(c) of educational, or development services, or copy of each assignment agreement form
the Indian Self-Determination and related services to governments or established under this part, including
Education Assistance Act; universities concerned with public any modification to the agreement. The
Institution of higher education means management. agency may determine the appropriate
a domestic, accredited public or private (c) Federally funded research and time period for retaining copies of its
4-year and/or graduate level college or development centers which appear on a written agreements.
university, or a technical or junior master list maintained by the National
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college; Science Foundation are eligible to § 334.107 Termination of agreement.

Local government as defined in 5 participate in the program. (a) An assignment may be terminated
U.S.C. 3371(2)(A) and (B) means: (d) An organization denied at any time at the request of the Federal
(1) Any political subdivision, certification by an agency may request agency or the State, local, Indian tribal
instrumentality, or authority of a State reconsideration by the Office of government, institution of higher
or States; and Personnel Management (OPM). education, or other organization

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Federal Register / Vol. 71, No. 180 / Monday, September 18, 2006 / Rules and Regulations 54567

participating in this program. Where FOR FURTHER INFORMATION CONTACT: employees must have 3 years or more of
possible, the party terminating the Carey Johnston by telephone at (202) creditable service before accruing 6
assignment prior to the agreed upon 606–2858, by fax at (202) 606–0824, or hours of annual leave each pay period
date should provide 30-days advance by e-mail at pay-performance- and 15 years or more of creditable
notice along with a statement of reasons, service before accruing 8 hours of
to the other parties to the agreement. SUPPLEMENTARY INFORMATION: On April annual leave each pay period. One
(b) Federal assignees continue to 29, 2005, the Office of Personnel commenter thought it was unfair that
encumber the positions they occupied Management (OPM) published interim this provision applies only to future
prior to assignment, and the position is regulations (70 FR 22245) to implement employees, while section 202(b) of the
subject to any personnel actions that section 202(a) of the Federal Workforce Act provides an 8-hour annual leave
might normally occur. At the end of the accrual rate each pay period to current
Flexibility Act of 2004 (Pub. L. 108–411,
assignment, the employee must be and future members of the Senior
October 30, 2004), hereafter referred to
allowed to resume the duties of the Executive Service (SES) and employees
as ‘‘the Act.’’ Section 202(a) added
employee’s position or must be in senior-level and scientific or
subsection (e) to 5 U.S.C. 6303, which
reassigned to another position of like professional positions. Creditable
provides OPM with the authority to
pay and grade. service for non-Federal work experience
prescribe regulations to permit an
(c) An assignment is terminated may not be granted to current Federal
agency to grant a newly appointed or
automatically when the employer- employees because section 202(c) of the
reappointed employee service credit for
employee relationship ceases to exist Act prohibits employees who were
prior work experience that otherwise
between the assignee or original employed before the effective date of
would not be creditable for the purpose OPM’s regulations (i.e., April 28, 2005)
(d) OPM has the authority to direct of determining his or her annual leave from receiving such credit.
Federal agencies to terminate accrual rate. An employee may receive Two agencies asked whether there are
assignments or take other corrective credit if (1) The experience was any exceptions to the prohibition on
actions when OPM finds assignments obtained in a position having duties that crediting non-Federal work experience
have been made in violation of the directly relate to the duties of the to reappointed employees who held
requirements of the Intergovernmental position to which he or she is being civil service positions within 90 days
Personnel Act or this part. appointed, and (2) it is determined by before their reappointment. OPM may
the head of the agency that crediting not grant any exceptions because 5
§ 334.107 Reports required. service to provide a higher annual leave U.S.C. 6303(e)(3) prohibits a
A Federal agency which assigns an accrual rate is necessary to recruit an reappointed employee who held an
employee to or receives an employee individual with the skills and appointment in the civil service within
from a State, local, Indian tribal experience necessary to achieve an the previous 90-day period from
government, institution of higher important agency mission or receiving service credit for non-Federal
education, or other eligible organization performance goal. work experience.
in accordance with this part must The 60-day public comment period on Senate Report 108–223 (January 27,
submit to OPM such reports as OPM the interim regulations ended on June 2004) on the Act stated that the law
may request. 28, 2005. During the comment period, would ‘‘reform the annual leave accrual
OPM received comments from 1 Federal policy for new mid-career federal
[FR Doc. E6–15436 Filed 9–15–06; 8:45 am]
labor organization, 5 Federal agencies, employees’’ so that agencies have an
and 20 individuals. enhanced capability to recruit these
Three commenters expressed the view individuals (pages 9). The Senate Report
that the effective date of an agency’s explained that ‘‘individuals with
authority to provide credit for non- substantial private sector experience
Federal work experience should be the may be hesitant to enter government
5 CFR PART 630 date the Act was signed (October 30, service if they have to surrender a
2004). Section 6303(e)(1) of title 5, considerable amount of vacation time’’
RIN 3206–AK80 United States Code, provides that, not (page 9). OPM’s regulations are
later than 180 days after enactment of consistent with this expression of
Absence and Leave; Creditable Service the Act, OPM must prescribe regulations congressional intent that this tool be
AGENCY: Office of Personnel to permit an agency to provide service available to agencies to recruit
Management. credit to a newly appointed or individuals with the skills and
ACTION: Final rule. reappointed employee for prior work experience necessary to achieve an
experience that otherwise would not be important agency mission or
SUMMARY: The Office of Personnel creditable for the purpose of performance goal. The fact that current
Management is issuing final regulations determining his or her annual leave employees accepted Federal
to provide Federal agencies with the accrual rate. The earliest date this new employment without receiving this new
authority to grant a newly appointed or authority could become effective was leave benefit clearly demonstrates that a
reappointed employee credit for prior the effective date of OPM’s higher annual leave accrual rate was not
work experience that otherwise would regulations—i.e., April 28, 2005. necessary to recruit them.
not be creditable for the purpose of Several commenters objected to the An agency recommended revising 5
determining the employee’s annual interim regulations because current CFR 630.205(a) by replacing ‘‘a newly
leave accrual rate. An agency may use Federal employees may not receive appointed employee’’ with ‘‘an
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this authority to recruit an individual credit for non-Federal work experience employee receiving his or her first
with the skills and experience necessary for the purpose of redetermining their appointment (regardless of tenure) as a
to achieve an important agency mission annual leave accrual rate. The civilian employee of the Federal
or performance goal. commenters believe the new authority Government.’’ The agency explained
DATES: The regulations are effective on provides an unfair advantage to newly that the recommended revision would
October 18, 2006. appointed employees, since current align the language in § 630.205(a) with

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