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

SUMMARY: The Office of Personnel Management (OPM) is revising its

regulations implementing Executive Order 12721 under which Federal

agencies can noncompetitively appoint certain former overseas employees

who as family members accompanied their sponsors on official assignment

overseas. These regulations add a new condition justifying the waiver

of a portion of the overseas service requirement. The regulations also

remove duplication and add clarifying information.

EFFECTIVE DATE: April 8, 1996.

FOR FURTHER INFORMATION CONTACT:

Ellen Russell on 202-606-0830, FAX 202-606-2329, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: On August 23, 1995 (60 FR 47324) OPM

published proposed regulations to make it easier for family members of

U.S. Government personnel stationed abroad to get career Federal jobs

when they are brought back to the United States because of military

downsizing and other management-initiated actions. Rather than penalize

family members who are returned to the States before they had worked

the full 52 weeks required for noncompetitive appointment, the

regulation delegates 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. Under the final regulation, to

waive up to 26 weeks of the 52-week overseas service requirement, the

employing agency overseas must certify that the family member was

forced to return to the United States because of military drawdowns or

other management-initiated decisions not personal to the individual and

must include the number of weeks waived.

Other reasons for waiving up to 26 weeks of the 52-week service

requirement remain the same, i.e., 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.

We received comments from three Federal agencies and one

individual. The Department of Defense (DOD) made two major suggestions.

First, DOD suggested a change in how an individual's 3-year period of

eligibility could be extended when he or she was stationed in an area

of the United States with no significant opportunities for Federal

employment. DOD suggested the determination be made by the major

Federal employer in the area where the applicant last resided.

We have not adopted this suggestion but instead have modified the

regulation to allow any agency to make the determination in order to

provide the most flexibility. This means that an individual leaving an

area with no significant Federal employment opportunities could get

verification from the major Federal employers in the area and attach

this statement to his or her application for noncompetitive

appointment.

Alternatively, an agency considering an application for

noncompetitive appointment could contact Federal agencies in the area

where the applicant was last stationed to verify an individual's claim

that he or she was stationed in an area with no significant Federal

employment opportunities. This flexibility allows agencies to set up

whatever special procedures they deem necessary as part of the special

assistance provided to family members.

DOD also suggested the regulations add a 2-year ``open period'' so

that individuals who, prior to the issuance of these regulations,

returned to the United States before earning the necessary 52 weeks of

service would be on an equal footing with family members who are

eligible as soon as these final regulations are effective. We agree

that the intent of the Executive order is to help as many family

members as possible and therefore have added such a provision. Under

the final regulation, individuals will be eligible for appointment for

3 years following their return to the United States or until March 31,

1998, whichever is later.

This provision is consistent with an approach OPM took in final

regulations published on April 3, 1991 (56 FR 13575). Those regulations

implemented a revision in Executive Order 12721 that reduced the amount

of necessary overseas service from 18 months to 52 weeks. The 1991

regulation included a 3-year open period to provide equity to family

members whose eligibility had already expired but who would have been

eligible under the terms of the revised Executive order.

The Department of the Army suggested the regulation include certain

provisions that had been in the former Federal Personnel Manual,

specifically that overseas service need not be continuous, that an

eligible need not be a family member at the time of noncompetitive

appointment in the United States, and the eligibles may be appointed in

any occupation and grade level for which they qualify. The final

regulation reflects these comments.

Another Federal agency noted an error in the 5 CFR

315.608(d)(4)(iv) appointing authority. We have corrected the authority

to read ``Public Law 86-36 (50 U.S.C. 402, note)''.

The individual suggested we expand the definition of the ``United

States'' to include American Samoa and the Commonwealth of the Northern

Mariana Islands. This change would allow family members to use their

noncompetitive appointment eligibility in these two locations.

We have not adopted this suggestion because Executive Order 12721

states that eligible individuals may be appointed noncompetitively to a

competitive service position in the executive branch ``within the

United States (including Guam, Puerto Rico, and the Virgin Islands).''

Since the order itself is so specific on where family members can use

their eligibility, we do not believe OPM's regulations could add

additional geographic areas to the definition of the ``United States.''

[[Page 9322]]

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.

List of Subjects in 5 CFR Part 315

Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending 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) Authority. 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 in the

competitive service, such as the citizenship requirement, also

disqualifies the applicant for appointment under this section. An

individual may be appointed to any occupation and grade level for which

qualified. 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.

(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

requirement 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,

creditable service is service in an appropriated fund position(s)

performed by a family member under a local hire appointment(s) overseas

during the time the family member was accompanying a sponsor officially

assigned to an overseas area and for which the family member received a

fully successful or better (or equivalent) performance rating.

Creditable overseas service is computed in accordance with the

procedures in the OPM Guide to Processing Personnel Actions. Creditable

service may have been under more than one appointment and need not be

continuous. Leave without pay taken during the time an individual is in

the overseas area is credited on the same basis as time worked.

(c) Service waiver. 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. The certification must include the number of weeks

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

conflict, terrorism or the threat of terrorism, and those situations

when a family member is forced to return to the United States because

of military deployment, drawdowns, or other management-initiated

actions. A nonpersonal situation does not include circumstances that

specifically relate to a particular individual, for example, ill health

or personal interest in relocating.

(d) Time limit on eligibility. An individual is eligible for

appointment(s) under this authority for a period of 3 years following

the date of returning from overseas to the United States to resume

residence or until March 31, 1998, whichever date is later. An 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; or

(2) The time an individual was incapacitated for employment.

(e) Definitions. In this section terms have the following meaning:

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

individual must have been a family member at the time he or she met the

overseas service requirement and other conditions but does not need to

be a family member at the time of noncompetitive appointment in the

United States.

(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) Expected 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;

[[Page 9323]]

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

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

(iv) 50 U.S.C. 403j; Public Law 86-36 (50 U.S.C. 402, 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.

FR Doc. 96-5476 Filed 3-7-96; 8:45 am]

BILLING CODE 6325-01-M