Career and Career-Conditional Employment; Noncompetitive Appointment of Certain Former Overseas Employees

SUMMARY: The Office of Personnel Management (OPM) proposes to issue

regulations implementing Executive Order 12721. That order authorizes

OPM to set the conditions under which Federal agencies can

noncompetitively appoint certain former overseas employees, i.e.,

family members who accompanied their sponsors on official assignment

overseas. Among the conditions for noncompetitive appointment in the

United States is the requirement that the former overseas employee have

52 weeks of service. Under the current regulations, up to 26 weeks of

the 52-week service requirement can be waived for a family member whose

expected 52 weeks of employment were cut short because of an emergency

situation which necessitated the family member's relocation to the

United States. An emergency situation includes conflict, terrorism, or

the threat of terrorism but does not include a personal situation such

as ill health.

This proposal would permit the agency that employed the individual

overseas to waive a portion of the 52-week overseas service requirement

for family members forced to return to the United States because of

military drawdowns or other management-initiated decisions not personal

to the individual. In addition, the proposal would streamline the

entire regulation by removing duplication and adding clarifying

information.

DATES: Comments must be received on or before October 23, 1995.

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

Associate Director for Employment, U.S. Office of Personnel Management,

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

FOR FURTHER INFORMATION CONTACT: Ellen Russell on 202-606-0830, FAX

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

SUPPLEMENTARY INFORMATION: Executive Order 12362, dated May 12, 1982,

first demonstrated the U.S. Government's interest in enhancing the

well-being of U.S. Government families by improving career employment

opportunities for family members of civilian and military employees

assigned abroad. By providing family members with access to career

positions in the United States based on their nonpermanent service

overseas, the Executive order helped Government families cope with the

disruption resulting from assignments to overseas locations where

career jobs for family members typically do not exist. Executive Order

12362 permitted these family members to qualify for noncompetitive

appointment in the United States after 24 months of overseas service

under nonpermanent appointment. Executive Order 12585 of March 3, 1987,

reduced the 24-month service requirement to 18 months. Executive Order

12721, dated July 30, 1990, revoked the two previous Orders and

authorized the Office of Personnel Management to establish requirements

under which family members could qualify for noncompetitive

appointment. OPM regulations issued on April 3, 1991 (56 FR 13575) then

reduced the service requirement to 52 weeks and also permitted OPM or

agencies under delegated agreement to waive up to 26 weeks of the

service requirement in emergency situations as defined in the

regulations, for example, conflict or terrorism.

Since 1991, many changes have occurred in the United States

military presence overseas.

As a result of the end of the Cold War, the U.S. Government is

reducing (drawing down) the number of personnel (civilian and military)

assigned overseas. As a result, family members of these returning

personnel are relocating to the United States before they have worked

the full 52 weeks, the amount of time necessary to qualify for

noncompetitive appointment. The Department of Defense recommends, and

we concur, that these family members should not be penalized by the

service drawdowns. Consequently, the proposed regulation would delegate

to agencies the authority to waive up to 26 weeks of service in

nonpersonal situations that necessitate the relocation of family

members out of the overseas area.

Section Analysis

Following is a summary of the changes we would make; section

numbers refer to the proposed regulation.

A. Sec. 315.608(a)(1): Clarifies that an appointee under this

section receives a career rather than a career-conditional appointment

when the individual has already satisfied requirements for career

tenure or is appointed to a position that requires career tenure upon

appointment.

B. Sec. 315.608(a): Clarifies that the United States includes Guam,

Puerto Rico, and Virgin Islands for purpose of Stateside appointment.

C. Sec. 315.608(b)(1): Drops the requirement that an individual

meet the overseas service requirement in a 10-year period beginning

after January 1, 1980. We see no need for this requirement.

D. Sec. 315.608(b)(2): Drops the reference to performance ratings

earned after January 1, 1984. We see no need for this requirement.

E. Sec. 315.608(c): To include military drawdowns, broadens the

conditions under which agencies are allowed to waive up to 26 weeks of

the 52-week overseas service requirement. (We explained our rationale

for this change in the Supplementary Information.) Also, delegates the

waiver authority to agencies in keeping with the National Performance

Review (NPR) recommendation to give agencies more flexibility.

F. Sec. 315.608(d): Clarifies when the 3-year period of eligibility

begins, i.e., when a family member returns to the United States to

resume residence as opposed to returning for vacation, training, etc.

G. Sec. 315.608(d): Removes reference to Stateside appointment

before January 1, 1994. Changes the authority to extend an individual's

period of employment eligibility beyond the 3-year period in two

specific circumstances from the

[[Page 43725]]

Office of Personnel Management to the hiring agency.

H. Sec. 315.608(e)(4)(ii): Defines local hire appointments to

include overseas limited appointments when made on a temporary or term

basis.

I. Sec. 315.608(e)(4)(v): Removes reference to the Federal

Personnel Manual. That document was abolished on December 31, 1994.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because the

regulation pertains only to Federal employees and agencies.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 315

Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM proposes to amend part 315 of title 5, Code of

Federal Regulations, as follows:

PART 315--CAREER AND CAREER-CONDITIONAL APPOINTMENT

1. The authority citation for part 315 continues 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. Section 315.608 is revised to read as follows:

Sec. 315.608 Noncompetitive appointment of certain former overseas

employees.

(a) An executive branch agency may noncompetitively appoint, to a

competitive service position within the United States (including Guam,

Puerto Rico, and the Virgin Islands) an individual who has completed 52

weeks of creditable overseas service as defined in paragraph (b) of

this section and is appointed within the time limits in paragraph (d)

of this section. Any law, Executive order, or regulation that

disqualifies an applicant for appointment, such as the citizenship

requirement, also disqualifies the applicant for appointment under this

section.

(1) Tenure. A person appointed under this section becomes a career-

conditional employee unless he or she has already satisfied the

requirements for career tenure or is exempt from the service

requirements in 5 CFR 315.201.

(2) Competitive status. A person appointed under this section

acquires competitive status automatically upon completion of probation.

(b) Creditable overseas service for purposes of this section only,

is service in an appropriated fund position(s) performed by a family

member under a local hire appointment(s) overseas:

(1) During the time the family member was accompanying a sponsor

officially assigned to an overseas area; and

(2) For which the family member received a fully successful or

better (or equivalent) performance rating.

(3) Computation of creditable overseas service is in accordance

with the service computation procedures in the Guide to Processing

Personnel Actions. Leave without pay (LWOP) taken during the time an

individual is in the overseas area is credited on the same basis as

time worked.

(c) Exception. Up to 26 weeks of the 52-week service requirement is

waived when the head of an agency (or designee) that employed the

family member overseas certifies that the family member's expected 52

weeks of employment were cut short because of a nonpersonal situation

that necessitated the relocation of the family member from the overseas

area. For this purpose, a nonpersonal situation includes disaster,

conflict, terrorism or the threat of terrorism, and the deployment of

the family member's sponsor from the overseas area. A nonpersonal

situation does not include circumstances that specifically relate to a

particular individual, for example, ill health or personal interest in

relocating.

(d) An individual is eligible for appointment(s) under this

authority only within 3 years of returning from overseas to the United

States to resume residence. The hiring agency may extend an

individual's appointment eligibility beyond 3 years for periods

equivalent to--

(1) The time the individual was accompanying a sponsor on official

assignment to an area of the United States with no significant

opportunities for Federal employment as determined by the hiring

agency; or

(2) The time the hiring agency determines an eligible individual

was incapacitated for employment.

(e) Definitions. In this section--

(1) Family member. An unmarried child under age 23 or a spouse.

(2) Sponsor. A Federal civilian employee, a Federal nonappropriated

fund employee, or a member of a uniformed service who is officially

assigned to an overseas area.

(i) Officially assigned. Under active orders issued by the United

States Government.

(ii) Federal civilian employee. An employee of the executive,

judicial, or legislative branch of the United States Government who

serves in an appropriated fund position.

(iii) Nonappropriated fund employee. An employee paid from

nonappropriated funds of the Army and Air Force Exchange Service, Navy

Ship's Stores Ashore, Navy Exchanges, Marine Corps Exchanges, Coast

Guard Exchanges, or other instrumentalities of the United States.

(iv) Member of a uniformed service. Personnel of the U.S. Armed

Forces (including the Coast Guard), the commissioned corps of the

Public Health Service, and the commissioned corps of the National

Oceanic and Atmospheric Administration.

(3) Accompanying. The family member resided in the overseas area

while the sponsor was officially assigned to an overseas post of duty.

The family member need not have physically resided with the sponsor at

all times or have traveled with the sponsor to or from the overseas

area.

(4) Local hire appointment. An appointment that is not actually or

potentially permanent and that is made from among individuals residing

in the overseas area. In this section only, a local hire appointment

includes nonpermanent employment under:

(i) Overseas limited appointment under 5 CFR 301.203(b) or (c);

(ii) Excepted appointment under Schedule A 213.3106(b)(1),

213.3106(b)(6), or 213.3106(d)(1)) when the duration of the appointment

is tied to the sponsor's rotation date or when the appointment is made

on a not-to-exceed (NTE) basis;

(iii) An ``American family member'' or ``part-time intermittent

temporary (PIT)'' appointment in U.S. diplomatic establishments;

[[Page 43726]]

(iv) 50 U.S.C. 403j; Public Law 86-36 (50 U.S.C. 403, note); the

Berlin Tariff Agreement; or as a local national employee paid from

appropriated funds; or

(v) Any other nonpermanent appointment in the competitive or

excepted service approved by OPM.

(5) Overseas. A location outside: the 50 States of the United

States, the District of Columbia, Guam, Puerto Rico, and the Virgin

Islands.

(6) Qualified. Meeting all qualification requirements for a

position in the United States, except that an agency may waive any

requirement for a written test after determining that the duties and

responsibilities of the applicant's overseas position were similar

enough to make the written test unnecessary.

[FR Doc. 95-20881 Filed 8-22-95; 8:45 am]

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