Expert and Consultant Appointments

SUMMARY: The Office of Personnel Management (OPM) is adopting

regulations for the employment and pay of persons appointed under the

expert and consultant authority. The Technical and Miscellaneous Civil

Service Amendments Act of 1992 requires OPM to prescribe such

regulations and to ensure agency compliance.

EFFECTIVE DATE: October 2, 1995.

FOR FURTHER INFORMATION CONTACT:

Employment and reporting requirements--Tracy E. Spencer or Christina

Gonzales, (202) 606-0830, or fax (202) 606-2329;

Pay and leave administration--Frank Derby, (202) 606-1413, or fax (202)

606-0824.

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. In 1991, the General Accounting Office (GAO)

reviewed expert and consultant appointments made under section 3109 by

nine installations during a 30-month period. GAO determined that almost

one-third of those appointments were improper and recommended that

Congress amend 5 U.S.C. 3109 to authorize OPM to regulate the

employment of experts and consultants.

Section 2(8) of Pub. L. 102-378, October 2, 1992, requires OPM to

regulate appointments under 5 U.S.C. 3109 and to collect data on pay

and days worked. OPM issued proposed regulations to implement that

requirement on December 29, 1994 (59 FR 67232). We received comments on

those regulations from nine Federal agencies and one private firm.

Comments on Coverage

One agency suggested that the regulations use an alternative term

for ``consultant'' to distinguish individuals who receive Federal civil

service appointments from those serving under contracts for consulting

services. We did not adopt that suggestion because the terms ``expert''

and ``consultant,'' are contained in the law.

One agency asked whether the regulations cover appointments of

advisory group members. The regulations cover all appointments made

under 5 U.S.C. 3109, including those to advisory groups. Another agency

asked how the regulations will affect current appointments of experts

and consultants. Experts and consultants appointed without time limit

will become subject to the new regulations immediately on the effective

date. Those already appointed with time limits will become subject to

the regulations upon expiration of their current appointment. We do not

anticipate that the regulations will necessitate changes in employment

conditions because the requirements either repeat or liberalize those

contained in previous instructions and determinations issued by OPM and

GAO.

Comments on Appointments and Reappointments (Section 304.103)

The law requires that experts and consultants be appointed on a

temporary or intermittent basis. One agency suggested that the

regulations should permit experts and consultants who work on a

strictly intermittent basis to be appointed for periods longer than 1

year or without time limit. That has been done.

All other experts and consultants must be employed under temporary

appointments. The proposed regulations included two options for

limiting length of temporary service: By time (Option 1) or by

cumulative earnings (Option 2).

Several agencies suggested that Option 1 should include the same

flexibilities for extension or reappointment that are available for

other temporary Federal appointments. We have adopted suggestions to

permit reappointment to demonstrably different duties and to provide

for OPM approval of exceptions to time limits.

Several agencies asked whether an individual's maximum lifetime

earnings limit under Option 2 would increase to reflect increases in

basic pay rates. One agency asked whether an individual who had

previously exhausted his/her lifetime limit could be reappointed

following such an increase. The final regulations permit, but do not

require, agencies to raise an appointee's lifetime earnings limit to

reflect statutory pay increases.

One agency suggested that OPM provide examples of situations in

which Option 1 or Option 2 would be appropriate. We did not adopt that

suggestion because we believe that each agency can best make that

determination based on first-hand knowledge of its own work. Another

agency suggested that the determination be required prior to any

reappointment, rather than upon initial appointment, to reduce

documentation requirements for appointments that are never renewed. We

have adopted that suggestion although, in practice, we expect that many

appointees will want to know the possibility for reappointment when

deciding whether to accept the agency's initial offer.

Comments on Pay and Leave Administration (Sections 304.104 through

304.106)

The regulation stipulates that experts and consultants are not

automatically entitled to pay rate adjustments at the time of general

pay increases under 5 U.S.C. 5303 unless provided for in the

appointment document. (See 5 CFR 304.106(a).) One agency suggested that

entitlement to receive those pay rate adjustments be at the discretion

of agency managers. That comment seems to be based on a

misunderstanding. The regulations do not impair any agency's ability to

make ad hoc adjustments in expert or consultant pay under its

administrative pay setting authority. The provision in question simply

states that experts and consultants have no entitlement to pay

adjustments equal to those under 5 U.S.C. 5303, unless the agency has

chosen to convey such entitlement in the appointing document. In the

absence of a documented

[[Page 45648]]

provision for such pay adjustments, they are at the employing agency's

discretion. We have revised Sec. 304.106(a) to make clear that agencies

have discretionary authority to adjust the pay of experts and

consultants.

One agency commented on the necessity for the use of an updated

service computation date (SCD) for intermittent experts and consultants

in the preparation of reports required under section 304.108. The

concern was a need for the continuous updating of SCDs for

intermittents. However, OPM does not require continuous updating of

SCDs for intermittent employees. Agencies are required to update those

SCDs if the employee leaves the agency (transfer, separation,

retirement, etc.) or changes to a non-intermittent work schedule.

One consultants' organization commented that there should be no

provision for overtime for experts and consultants. Entitlement to

overtime pay and other premium pay is a matter of law, if applicable

eligibility requirements are met. That organization also suggested that

agencies engage in a pre-screening process whereby available experts

and consultants could be listed by subject expertise and fee schedule.

Agencies are free to do so based upon foreseeable needs and funds

available.

One agency asked whether experts and consultants who are covered

under the Fair Labor Standards Act (FLSA) overtime provisions are

subject to the special FLSA rules applicable to General Schedule

employees under title 5, United States Code, and OPM regulations. Those

experts and consultants are subject to OPM's regulations on FLSA

overtime pay. (See section 4(f) of the Fair Labor Standards Act of

1938, as amended.) To clarify this, we have added a reference to OPM's

FLSA regulations (part 551) in section 304.106(c).

One agency recommended that Sec. 304.105 be revised to make clear

how daily and biweekly pay limits are to be computed in cases where an

agency has authority to pay an expert or consultant above the GS-15,

step 10, limitation. Since these regulations are limited to

implementation of 5 U.S.C. 3109, we have not included rules on

implementing a pay limit under other statutory provisions. However, all

Federal employees covered under 5 U.S.C. 5504 would be subject to the

rules therein for the computation of hourly, daily and biweekly rates

of pay.

An agency asked how pay would be administered for experts and

consultants who are paid on a daily basis in the event that they are

assigned to established regular tours of duty (i.e., not intermittent)

and who therefore have an entitlement to annual and sick leave. Since

these employees have scheduled tours, they are accountable for their

scheduled work hours by performing work or taking annual leave, sick

leave, leave without pay, compensatory time, etc. Accordingly, OPM

believes that such employees should be compensated on an hourly basis

rather than on a daily basis.

We are considering adding a provision to these regulations that

would establish a clear requirement that any expert or consultant with

an established regular tour of duty must be paid on an hourly basis.

However, we are interested in agency comments regarding such a

requirement before proceeding with a regulatory change. Therefore, we

invite agency representatives to provide comments by calling the

Compensation Administration Division at (202) 606-2858 or by writing to

Donald J. Winstead, Assistant Director for Compensation Policy, Office

of Personnel Management, Room 6H31, 1900 E Street, NW., Washington, DC

20415.

Comments on Reporting and Compliance Requirements (Sections 304.107

and 304.108)

As revised, 5 U.S.C. 3109 requires agencies to report annually on

their use of paid experts and consultants and to provide the controls

and oversight necessary to ensure proper use of the appointing

authority. We have adopted an agency's suggestion to clarify that the

pay to be reported does not include reimbursement for travel and

related expenses. We did not adopt a suggestion to delete requirements

that agencies conduct appropriate training and oversight to ensure

proper use of the appointing authority because Congress intended these

elements to be part of agencies' compliance programs. We have, however,

reworded the regulation to clarify that the specific procedures for

meeting these requirements are up to each agency.

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.

Office of Personnel Management,

James B. King,

Director.

Accordingly, OPM is adding 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 basic 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) An agency is an executive department, a military department, or

an independent agency.

(b) 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.

(c) A consultant position is one that requires providing advice,

views, opinions, alternatives, or recommendations on a temporary and/or

intermittent basis on issues, problems, or questions presented by a

Federal official.

(d) 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.

(e) 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 and/

or

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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.

(f) Intemittent employment, as defined in part 340, subpart D, of

this chapter, means employment without a regularly scheduled tour of

duty.

(g) 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, seasonal, or intermittent work schedule.

(h) Employment without compensation means unpaid service that is

provided at the agency's request and is to perform duties that are

unclassified. It is not volunteer service.

Sec. 304.103 Authority.

(a) Basic authority. (1) 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 and/or temporary employment. Such an appointment is

excepted from competitive examination, position classification, and the

General Schedule pay rates.

(2) An expert or consultant who works on a strictly intermittent

basis may be appointed under this authority without time limit or for

any period determined by the agency. All other experts and consultants

must receive temporary appointments. Temporary experts and consultants

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 (although an expert

may act as team leader or director of the specific project for which

he/she is hired), 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. An agency may reemploy an expert or consultant

to perform demonstrably different duties without regard to the length

of that individual's previous expert or consultant service with the

agency. Reappointment to perform substantially the same duties is

subject to the following limits:

(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 which option it will use

in advance of any reappointment 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

adjust this limit to reflect statutory increases in basic pay rates.

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 maximum salary

rate. At that point, the employment must be terminated.

(3) OPM may authorize reappointment of an expert or consultant as

an exception to the limits in the section when necessitated by

unforeseen and unusual circumstances.

Sec. 304.104 Determining rate of pay.

(a) The rate of basic pay for experts and 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 section 304.105.

(b) The head of an agency, or his or her designee, shall consider

the following factors in setting the initial rate of basic pay for an

expert or consultant:

(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

[[Page 45650]]

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) The employing agency has the authority to adjust the pay of

experts and consultants after initial appointment and to establish

appropriate policies governing the amount and timing of any such

adjustments, subject to the limitations of Sec. 304.105. In addition to

the factors listed in Sec. 304.104(b), the agency may consider factors

such as job performance, contributions to agency mission, and the

general pay increases granted to other Federal employees. Experts and

consultants are not entitled to receive automatic adjustments in their

rates of basic pay at the time of general pay increases under 5 U.S.C.

5303 unless specifically provided for in the official appointing

document. In the absence of such automatic entitlement, any pay

adjustments are at the agency's discretion.

(b) Experts and 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 and 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. (See 5 CFR

part 551).

(d) An expert or consultant may be paid for service on an

intermittent basis in 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 and 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 and consultants are subject to the provisions of 5

U.S.C. 5532 on reduction of retired military pay.

(g) Experts and consultants with a regularly scheduled tour of duty

(i.e., not intermittent) 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 workday on which they perform no work,

provided that workday is part of the basic workweek. 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. (Do not include payments for travel and related expenses.)

Sec. 304.108 Compliance.

(a) Each agency using 5 U.S.C. 3109 must establish and maintain a

system of controls and oversight necessary to assure compliance with 5

U.S.C. 3109 and these regulations. The system must include--

(1) Appropriate training and information procedures to ensure that

officials and employees using the authority understand the statutory

and regulatory requirements; and

(2) Appropriate provision for review of expert and consultant

appointments.

(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. 95-21573 Filed 8-31-95; 8:45 am]

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