Career and Career-Conditional Employment; Interim Rule OFFICE OF PERSONNEL MANAGEMENT

SUMMARY: The Office of Personnel Management (OPM) is issuing interim

regulations to continue existing requirements under which career-

conditional employees acquire career tenure and reinstatement

eligibility. At present, these requirements are in provisionally

retained chapter 315 of the former Federal Personnel Manual. Issuance

of this interim rule will prevent a lapse in Governmentwide

requirements when chapter 315 expires on December 31, 1994.

DATES: Interim rules effective on January 1, 1995. Comments must be

submitted on or before February 28, 1995.

ADDRESSES: Send or deliver written comments to Leonard R. Klein,

Associate Director for Career Entry, Office of Personnel Management,

Room 6F08, 1900 E Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Lee Edwards on 202-606-0830, TDD 202-

606-0023, or FAX 202-606-2329.

SUPPLEMENTARY INFORMATION: Regulations covering career-conditional

appointments in the Federal service are in 5 CFR part 315. The career-

conditional appointment is the initial permanent appointment to

competitive service positions. Upon satisfying certain conditions, a

career-conditional employee acquires career tenure, which provides

higher retention standing and unlimited reinstatement eligibility.

Currently, 5 CFR 315.201(a) requires 3 years of creditable service

for an employee to acquire career tenure. Section 315.201(b) provides

that OPM will publish in the Federal Personnel Manual the conditions

under which service may be credited in meeting the 3-year requirement.

As recommended by the National Performance Review, OPM abolished

the Federal Personnel Manual (FPM) in December 1993. At the time, FPM

Chapter 315 on the career-conditional appointment system was

provisionally retained through December 1994 to enable OPM to issue

regulations to replace needed instructions found only in the FPM,

including the conditions under which service is credited toward career

tenure.

The FPM instructions also specify the conditions under which

reinstatement eligibility of career-conditional employees may be

extended beyond the 3-year period set in 5 CFR 315.401. Reinstatement

eligibility permits an individual to be rehired without competing in a

competitive civil service examination. (Career employees and preference

eligible career-conditional employees have unlimited reinstatement

eligibility.)

On October 20, 1994, OPM issued proposed revisions to conditions

for acquiring career tenure and reinstatement eligibility (59 FR

52925). Because the comment period ends on December 20, 1994, OPM will

have insufficient time to issue final rules on that proposal to be

effective January 1, 1995, and prevent a lapse in Governmentwide

requirements for career tenure and reinstatement. To assure that

employees continue to acquire career tenure and reinstatement

eligibility under the same set of conditions, OPM is adopting in 5 CFR

part 315 the existing requirements for career tenure that are in

section 2-4, subchapter 2, and for reinstatement eligibility in section

4-2, subchapter 4, of the provisionally retained chapter 315 of the

former Federal Personnel Manual.

Changes from the FPM instructions are limited to editorial

revisions and inclusion of existing requirements in interchange

arrangements with other merit systems that OPM approved under 5 CFR

Sec. 6.7.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists

for waiving the general notice of proposed rulemaking. Also, pursuant

to 5 U.S.C. 553(d)(3), I find that good cause exists to make this

amendment effective in less than 30 days. This regulation is effective

immediately to continue existing longstanding rules from the Federal

Personnel Manual that determine employees' retention standing and

eligibility for reinstatement. It would be contrary to the public

interest to allow these Governmentwide rules to expire when the Manual

expires on December 31, 1994. The delay in the effective date is being

waived to prevent any lapse in coverage of these rules.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it pertains

only to Federal employees and agencies.

List of Subjects in 5 CFR Part 315

Government employees.

Accordingly, OPM is amending part 315 of title 5, Code of Federal

Regulations, as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

1. The authority citation for part 315 is revised to read as

follows:

Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-

1958 Comp., page 218, unless otherwise noted.

Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and

3652.

Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104.

Sec. 315.603 also issued under 5 U.S.C. 8151.

Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp., p.

111.

Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965

Comp., p. 303.

Sec. 315.607 also issued under 22 U.S.C. 2506.

Sec. 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp., p.

293.

Sec. 315.610 also issued under 5 U.S.C. 3304(d).

Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp., p.

229.

Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR,

1978 Comp., p. 264.

2. Sec. 315.201, paragraphs (a) and (b) are revised to read as

follows:

Sec. 315.201 Service requirement for career tenure.

(a) Service requirement. A person employed in the competitive

service for other than temporary, term, or indefinite employment is

appointed as a career or career-conditional employee subject to the

probationary period required by subpart H of this part. Except as

provided in paragraph (c) of this section, an employee must serve 3

years of substantially continuous creditable service as defined in

paragraph (b) of this section to become a career employee.

(b) Creditable service. Unless otherwise approved by OPM, the

service required for career tenure must begin and end with nontemporary

employment in the competitive service except as described in paragraph

(1) of this subsection, must include service under an appointment based

on or leading to competitive status, be substantially continuous, and

total 3 years, as follows:

(1) Nontemporary employment. To be creditable, the 3-year period of

service must begin with one of the following:

(i) Nontemporary appointment in the competitive service. For this

purpose, nontemporary appointment includes a career-conditional

appointment; career appointment; reinstatement under subpart D of this

part; and transfer under subpart E of this part. The 3-year period may

also begin, but not end, with status quo employment under subpart G of

part 316 of this chapter, and overseas limited appointment of

indefinite duration or overseas limited term appointment under part 301

of this chapter. The 3-year period also may have begun with permanent

employment under now obsolete appointing authorities such as

probational, war service indefinite, and emergency indefinite

appointments. Determinations of whether an obsolete authority provides

the basis for creditable service may be obtained from OPM;

(ii) The acquisition of competitive status on January 23, 1955,

under provisions of Executive Order 10577, while serving in the

excepted service;

(iii) Nontemporary appointment from a civil service register to a

position in the excepted service before January 23, 1955;

(iv) Nontemporary appointment to a position in the District of

Columbia Government before January 23, 1955, evidencing selection in

regular order from a civil service register used to certify for

probational appointment in the Federal service. Appointment from a

register maintained only for District of Columbia Government would not

meet this condition;

(v) Nontemporary appointment to an excepted position, provided the

employee's excepted position was brought into the competitive service

and, on that basis, the employee acquired competitive status or was

converted to a career or career-conditional appointment;

(vi) Nontemporary appointment to a nonappropriated fund (NAF)

position in or under the Department of Defense, provided the employee's

NAF position was brought into the competitive service and, on that

basis, the employee acquired competitive status or was converted to a

career or career-conditional appointment;

(vii) Nontemporary excepted or nonappropriated fund appointment,

Foreign Service appointment, or appointment in the Canal Zone Merit

System, provided the employee is appointed or transferred to a

competitive service position under the terms of an interchange

agreement with another merit system under Sec. 6.7 of this chapter,

under Executive Order 11219 as amended by Executive Order 12292, or

under Executive Order 11171;

(viii) The date of appointment to a position on the White House

Staff or in the immediate office of the President or Vice President,

provided the service has been continuous and the individual was

appointed to a competitive service position under Sec. 315.602 of this

chapter;

(ix) The date of nontemporary excepted appointment under Schedule

B, Sec. 213.3202 of this chapter, provided the student's appointment is

converted to career or career-conditional appointment under Executive

Order 12015;

(x) The date of veterans readjustment appointment (VRA), provided

the appointment is converted to career or career-conditional

appointment under Sec. 315.705 of this chapter, or the person is

appointed from a civil service register without a break in service

while serving under a VRA;

(xi) The date of nontemporary appointment to the Postal Career

Service or the Postal Rate Commission after July 1, 1971, provided the

individual is appointed to a career or career-conditional appointment

under 39 U.S.C. 1006;

(xii) The date of nontemporary appointment under Schedule A,

Secs. 213.3102(t) or 213.3102(u) of this chapter, of a mentally

retarded or severely physically handicapped person, provided the

employee's appointment is converted to career or career-conditional

appointment under Sec. 315.709 of this chapter;

(xiii) The date of appointment as a Presidential Management Intern

under Schedule A, Sec. 213.3102(ii) of this chapter, provided the

employee's appointment is converted to career or career-conditional

appointment under Sec. 315.708;

(xiv) The date of temporary appointment pending establishment of a

register, provided the appointment was converted to career executive

assignment;

(xv) The date of temporary appointment pending establishment of a

register (TAPER), provided:

(A) The employee is serving on or after February 8, 1968, and his

or her TAPER employment is changed by conversion or by an appointment

without a break in service of a single workday to a career or career-

conditional appointment from a civil service register; and

(B) His or her TAPER service has been continuous without a break in

service of more than 30 calendar days or without interruption for more

than 30 calendar days by other than status quo or indefinite employment

in the competitive service, or military service provided he or she is

reemployed as a TAPER employee within 120 days after separation under

honorable conditions from the military service;

(xvi) The starting date of National Guard technician service

performed before January 1, 1969, provided the person was employed as a

National Guard technician on December 31, 1968, and his or her position

was brought into the competitive service on January 1, 1969;

(xvii) The starting date of active service as an administrative

enrollee in the United States Merchant Marine Academy; and

(xviii) The date on which an employee became eligible for benefits

under Public Law 83-121, unless an earlier date can be chosen because

of prior nontemporary service.

(2) Competitive status. Career tenure is acquired only under a

permanent appointment in the competitive service that provides or leads

to competitive status.

(3) Substantially continuous service. A single break in creditable

service of more than 30 calendar days will require the beginning of a

new 3-year period, except for:

(i) Breaks incident to entry into or return from military service

and return from defense transfer, provided the person is reemployed in

Federal service during his or her period of statutory or regulatory

restoration or reemployment rights;

(ii) Breaks incident to transfer to and from an international

organization, provided the person is reemployed in Federal service

under subpart C of part 352 of this chapter;

(iii) Breaks during which an employee was eligible to receive

injury compensation under the Office of Workers' Compensation Programs,

provided the person is reemployed under part 353 of this chapter;

(iv) Breaks incident to a restoration to correct an unjustified or

unwarranted separation;

(v) Breaks following separation by reduction in force of employees

who are eligible for entry on the reemployment priority list under

subpart B of part 330 of this chapter, provided the person is

reemployed in Federal service during the period of his or her

reemployment priority;

(vi) Breaks following involuntary separation without personal cause

of employees who are eligible for a noncompetitive appointment based on

an interchange agreement with another merit system under Sec. 6.7 of

this chapter, provided the person is employed in the competitive

service under the agreement during the period of his or her

eligibility;

(vii) Breaks incident to volunteer service or training required

after enrollment in volunteer service provided the person is reemployed

in Federal service within 90 days of the termination of volunteer

service or training. This provision applies to Peace Corps, VISTA, or

other ACTION full-time programs that are potentially creditable in

subsequent Federal employment for length of service for leave,

reduction in force, and retirement purposes;

(viii) Breaks incident to employment in a nonfederal organization

that occurred because a Federal function was transferred to the

organization by law, provided the employee moved as a result of the

transfer of function without a break in service of more than 3 days to

the nonfederal organization and is reemployed by nontemporary

appointment in the competitive service without a break in service of

more than 30 calendar days after separation from the nonfederal

organization;

(ix) Employment with the District of Columbia Government after

January 1, 1980 (the date the District implemented an independent merit

personnel system not tied to the Federal system), provided the person

was a District employee on December 31, 1979, was converted to the

District system on January 1, 1980, and is reemployed by nontemporary

appointment in the competitive service without a break in service of

more than 30 calendar days after separation from District employment;

and

(x) Breaks that occur when a career-conditional employee leaves

Federal employment to accompany a spouse or parent (if the employee is

their unmarried child under 21 years of age) who is a member of the

Armed Forces or a Federal civilian employee on official assignment to

an overseas post of duty, provided the employee's separation from

employment occurs no more than 90 calendar days prior to going overseas

and reinstatement occurs within 180 calendar days of return to the

United States. Overseas posts of duty are duty locations outside the 50

States of the United States, the District of Columbia, Guam, Puerto

Rico, and the Virgin Islands.

(4) Crediting service. An employee's creditable service must total

3 years, under the following conditions.

(i) Work schedule. (A) Full-time service, and part-time service on

or after July 1, 1962, are counted as calendar time from the date of

appointment to date of separation.

(B) Intermittent service on or after July 1, 1962 is counted as 1

day for each day an employee is in pay status, regardless of the number

of hours for which the employee is actually paid on a given day. For

this purpose, 780 days in pay status are equivalent to 3 years'

service, but the service requirement may not be satisfied in less than

3 years of calendar time.

(C) Part-time and intermittent service before July 1, 1962, is

counted based on the number of hours actually employed, including any

paid leave. For this purpose, 6,240 hours of paid time are equivalent

to 3 years' service, but the service requirement may not be satisfied

in less than 3 years of calendar tine.

(ii) Nonpay status on the rolls and time off the rolls. No credit

is given for periods of nonpay status and time off the rolls, except

under the following conditions:

(A) Credit is given for the first 30 calendar days of each period

of nonpay status on the rolls during full-time employment, or during

part-time employment on or after July 1, 1962. On this same basis, a

seasonal employee receives credit for the first 30 calendar days of

each period of nonduty/nonpay status. Nonpay status in excess of 30

days extends the 3-year waiting period by the amount of the excess;

(B) Full credit is given for periods of nonpay status and time off

the rolls incident to entry into and return from military service and

return from defense transfer, provided the person is reemployed in

Federal service during the period of his or her statutory or regulatory

restoration or reemployment rights;

(C) Full credit is given for periods of nonpay status and time off

the rolls incident to transfer to and return from an international

organization, provided the person is reemployed in Federal service

under subpart C of part 352 of this chapter;

(D) Full credit is given for periods of nonpay status during which

an employee was eligible to receive continuation of pay or injury

compensation under the Office of Workers' Compensation Programs. Full

credit also is given for periods of time off the rolls during which an

employee was eligible to receive injury compensation under the Office

of Workers' Compensation Programs, provided the person is reemployed

under part 353 of this chapter.

(E) Credit is given for up to 30 calendar days for time off the

rolls that follows separation by reduction in force of employees who

are eligible for entry on the reemployment priority list under subpart

B of part 330 of this chapter, provided the person is reemployed in

Federal service during the period of his or her reemployment priority;

and

(F) Credit is given for up to 30 calendar days for time off the

rolls that follow involuntary separation without personal cause of

employees who are eligible for a noncompetitive appointment based on an

interchange agreement with another merit system under Sec. 6.7 of this

chapter, provided the person is employed in the competitive service

under the agreement during the period of his or her eligibility.

(iii) Restoration based on unwarranted or improper actions. (A)

Based on a finding made before March 30, 1966, that a furlough,

suspension, or separation was unwarranted or improper, an employee

restored to duty receives full calendar time credit for the period of

furlough, suspension, or separation if he or she was eligible to

receive retroactive pay under 5 U.S.C. 5591-93 (formerly Pub. L. 80-

623) or 5 U.S.C. 5594 (formerly Pub. L. 81-733).

(B) Based on a finding made on or after March 30, 1966, that a

furlough, suspension, or separation was unwarranted or improper, an

employee restored to duty receives full calendar time credit for the

period of furlough, suspension, or separation for which he or she is

eligible to receive back pay. If the employee is restored to duty at a

date later than the original adverse action, credit for intervening

periods of nonpay status or breaks in service is given in accordance

with other provisions of this subsection. If the employee had been

properly separated from the rolls of the agency before a finding was

made that the adverse action was unwarranted or improper, the

correction and additional service credit given the employee may not

extend beyond the date of the proper separation.

(iv) Intervening service. Certain types of service that ordinarily

are not creditable are counted when they intervene between two periods

of creditable service without a single break in service in excess of 30

calendar days, excepted as provided in subparagraph (H) of his

paragraph. Under these conditions, credit is given for periods of

service:

(A) In the excepted service of the Federal executive branch,

including employment in nonappropriated fund positions in or under any

Federal agency;

(B) Under temporary, term, or other nonpermanent employment in the

Federal competitive service;

(C) In the Senior Executive Service;

(D) In the Federal legislative branch;

(E) In the Federal judicial branch;

(F) In the armed forces;

(G) In the District of Columbia Government through December 31,

1979. For an employee on the District rolls on December 31, 1979, who

converted on January 1, 1980, to the District independent personnel

system, credit also is given for service between January 1, 1980, and

September 25, 1980. Otherwise, service in the District of Columbia

Government on or after January 1, 1980, is not creditable as

intervening service; and

(H) Performed overseas by family members, as defined by

Sec. 315.608 of this chapter. Such service is creditable toward career

tenure if it intervenes between two periods of creditable service

without a single break in excess of 180 days.

* * * * *

3. In Sec. 315.401, paragraph (b) is revised and paragraph (c) is

added, to read as follows:

Sec. 315.401 Reinstatement.

* * * * *

(b) Time limit. There is no time limit on the reinstatement

eligibility of a preference eligible or a person who completed the

service requirement for career tenure. Except as provided in paragraph

(c) of this section, an agency may reinstate a nonpreference eligible

who has not completed the service requirement for career tenure only

within 3 years following the date of separation. This time limit begins

to run from the date of separation from the last position in which the

person served under a career appointment, career-conditioned

appointment, indefinite appointment in lieu of reinstatement, or an

appointment under which he or she acquired competitive status.

(c) Extension of time limit. Intervening service of the following

types extends the 3-year limit on reinstatement of eligibility of a

nonpreference eligible who has not completed the service requirement

for career tenure:

(1) Employment in Federal competitive service positions under

temporary, term, indefinite, or other nonpermanent appointment.

(2) Employment in Federal excepted, nonappropriated fund, or Senior

Executive Service positions in the executive branch;

(3) Employment in the Federal judicial branch or in the executive

or judicial branches of the insular possessions of the United States;

(4) Employment in Federal legislative branch;

(5) Employment in an international governmental organization or a

territorial, State, county, municipal, or foreign government in a

position in which the agency determines that the proposed appointee

acquired valuable training and experience for the position to be

filled;

(6) A substantially full-time training course in any educational

institution of recognized standing when the agency finds that the

proposed appointee acquired valuable training or experience for the

position to be filled;

(7) Compulsory service on work of national importance under

civilian direction as required by the Military Selective Service Act;

(8) Active military duty terminated under honorable conditions;

(9) Service with the District of Columbia Government prior to

January 1, 1980. In addition, for an employee on the District

Government rolls on December 31, 1979, who was converted on January 1,

1980, to the District of Columbia merit personnel system, continuous

District Government service after that date also extends the 3-year

period;

(10) Periods of nonemployement during which a person is eligible

for injury compensation under the Office of Workers' Compensation

Programs;

(11) Periods of nonemployment during which a person receives

disability retirement under the Civil Service or Federal Employees

Retirement System;

(12) Employment by a nonfederal organization when the person's

function was transferred to the nonfederal organization on a contract

basis or by law or executive order;

(13) Volunteer service and training required prior to actual

enrollment as a volunteer with Peace Corps, VISTA, and other ACTION

programs if it begins within the period the person is eligible for

reinstatement; and

(14) Periods of overseas residence during which a spouse or

unmarried child, under 21 years of age, of a member of the Armed Forces

or of a Federal civilian employee is accompanying that individual on

official assignment to an overseas post of duty. Overseas posts of duty

are duty locations outside the 50 States of the United States, the

District of Columbia, Guam, Puerto Rico, and the Virgin Islands.

[FR Doc. 94-32330 Filed 12-29-94; 8:45 am]

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