Intergovernmental Personnel Act Mobility Program

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 334

RIN 3206-AG61

Intergovernmental Personnel Act Mobility Program

AGENCY: Office of Personnel Management.

ACTION: Final regulations.

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

regulations governing mobility assignments between Federal agencies and

non-Federal entities. In keeping with the OPM philosophy of

transferring more responsibility for operational programs to agencies,

these revised regulations will allow agencies to operate the mobility

program in a more efficient and productive manner.

EFFECTIVE DATE: May 29, 1997.

FOR FURTHER INFORMATION CONTACT:

Tony Ryan on 202-606-1181 or FAX 202-606-3577.

SUPPLEMENTARY INFORMATION: By Executive Order 11589 of April 1, 1971,

the President delegated to the Office of Personnel Management the

authority to issue regulations necessary to administer the temporary

assignment of personnel between the Federal Government and State or

local governments, institutions of higher education, Indian tribal

governments and other eligible organizations (the Intergovernmental

Personnel Act Mobility Program).

On December 11, 1996, OPM published a proposed revision of its

regulations (61 FR 65189) dealing with this program for a 30-day

comment period. We received comments from sixteen Federal agencies. The

Department of Energy (DOE) recommended that we remove federally funded

research and development centers from the definition of ``other

organization'' in Sec. 334.102. Since an ``other organization'' must be

certified to participate, and federally funded research and development

centers which are on a list maintained by the National Science

Foundation (NSF) are automatically eligible, we agree with this

suggestion and, consequently, Sec. 334.102, as it currently appears in

the regulations, will not be changed.

Throughout the proposed regulations there are references to ``the

head of the Federal agency.'' The Department of Justice suggested that

we add ``or his or her designee'' after this phrase. Since, in many

agencies, the IPA program has already been delegated to Bureau or

Component level or below, this suggestion seems to mirror the way

things actually are. Changes have been made where needed.

Section 334.103 deals with organizations which must be approved for

participation in the IPA program. This approval or certification

process is being shifted from OPM to agencies. Federal agencies will

now deal directly with those non-Federal entities with whom they hope

to share an assignment. If an organization is certified by an agency,

this certification is permanent and may apply throughout the Federal

Government. Another agency can accept this certification or require the

organization to submit the appropriate paperwork for review. If an

organization is denied certification, it may appeal this denial to OPM.

The Department of Transportation asked if those organizations that have

already been certified will be ``grandfathered'' in when this change

occurs. No, they will not. As of the effective date of these

regulations, any organization wishing to participate in the mobility

program will need to be certified or recertified when they enter into

an IPA agreement. Those organizations in a current assignment on the

effective date of these regulations may complete those assignments, but

will need to go through the certification process before starting a new

assignment.

Many agencies, including the Departments of Commerce and Defense as

well as the Equal Employment Opportunity Commission, thought that OPM

should maintain a clearinghouse of organizations which have had their

eligibility certified. However, we feel that a clearinghouse is

unnecessary. An agency could simply ask an organization whether it had

already been certified by another Federal agency. If it had, then that

certification, once verified, would allow an agency to move ahead with

a new IPA assignment. This removes a heavy administrative

responsibility from OPM but does not unduly impact other Federal

agencies. One agency, DOE, pointed out that it is actually

``eligibility'' which agencies are certifying, not ``notprofit

status.'' We have revised Sec. 334.103(a) to reflect this distinction.

We received numerous comments regarding Sec. 334.104, which deals

with the length of the IPA assignment. Some agencies believe that the

proposed provisions are more restrictive than the present ones. A few

agencies, including NSF, felt that rather than providing additional

flexibility, the suggested changes actually limit the flexibility they

now have under the current regulations.

Section 334.104(b) would place a 6-year lifetime on both Federal

and non-Federal assignees. This drew quite a bit of criticism from

agencies, especially those involved in research and development (R&D)

like the Office of Naval Research. They felt that this regulation could

severely damage their ability to utilize non-Federal scientific

expertise. They argue that it takes a considerable amount of time for a

scientist to become knowledgeable on a research project and it would be

fiscally irresponsible to have to bring in a new person because of the

6-year limit. We certainly don't want to limit the flexibility agencies

will need to effectively operate this program by placing unnecessary

regulatory burdens on them. Section 334.104(b) has been changed in

order to remove the 6-year limit on non-Federal assignees. The limit

remains for Federal employees.

There was also considerable concern with Sec. 334.104(c), which

would require individuals to return to their original employers at the

end of an assignment for a length of time equal to the assignment

before participating again in the IPA program. The Department of

Transportation felt that there might be a valid situation, because of

an individual's special expertise, when such a break could be

detrimental to the agency. Others thought the proposal has the

potential to increase costs dramatically and impact mission

accomplishment. We will modify Sec. 334.104(c) to reflect the current

requirement of a 12-month break after four years on assignment.

Section 334.105(a) requires Federal employees to serve with the

Federal Government upon completion of their assignment for a period

equal to the length of the assignment. This is known as the obligated

service requirement. The Department of the Navy would like to see this

section done away with. However, one of the original objectives of the

mobility program was to ``provide program and developmental experience

which will enhance the assignee's performance in his or her regular

job.'' This requirement assures that the individual will return to his

or her Federal Government job with newly acquired skills. Therefore, we

feel it is too important to discard. There are no changes to this

section.

Section 334.105(b) requires an employee, who fails to carry out the

provisions of Sec. 334.105(a), to reimburse the Federal agency for its

share of the costs of the assignment. These costs, however, do not

include salary or, as noted by one of the agencies, benefits. This

requires a minor change to Sec. 334.105(b). In addition, this section

[[Page 23127]]

also allows for a waiver of the reimbursement when the agency head, or

his or her designee, feel there is good and sufficient reason to do so.

This waiver authority should provide sufficient flexibility for those

agencies concerned about the severity of Sec. 334.105(a).

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because the

regulations pertain only to Federal employees and agencies.

List of Subjects in 5 CFR Part 334

College and universities, Government employees, Indians,

Intergovernmental relations.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending part 334 of title 5, Code of Federal

Regulations:

PART 334--TEMPORARY ASSIGNMENT OF EMPLOYEES BETWEEN FEDERAL

AGENCIES AND STATE, LOCAL, AND INDIAN TRIBAL GOVERNMENTS,

INSTITUTIONS OF HIGHER EDUCATION, AND OTHER ELIGIBLE ORGANIZATIONS.

1. The authority citation for part 334 continues to read as

follows:

Authority: 5 U.S.C. 3376; E.O. 11589, 3 CFR 557 (1971-1975).

2. Section 334.103 is revised to read as follows:

334.103 Approval of instrumentalities or authorities of State and

local governments and ``other organizations''.

(a) Organizations interested in participating in the mobility

program as an instrumentality or authority of a State or local

government or as an ``other organization'' as set out in this part must

have their eligibility certified by the Federal agency with which they

are entering into an assignment.

(b) Written requests for certification should include a copy of the

organization's:

(1) Articles of incorporation;

(2) Bylaws;

(3) Internal Revenue Service nonprofit statement; and

(4) Any other information which indicates that the organization has

as a principal function the offering of professional advisory,

research, educational, or development services, or related services to

governments or universities concerned with public management.

(c) Federally funded research and development centers which appear

on a master list maintained by the National Science Foundation are

eligible to enter into mobility agreements.

(d) An organization denied certification by an agency may request

reconsideration by the Office of Personnel Management.

3. Section 334.104 is revised to read as follows:

Sec. 334.104 Length of assignment.

(a) An assignment may be made for up to 2 years and may be extended

by the head of a Federal agency, or his or her designee, for up to 2

more years, given the concurrence of the other parties to the

agreement.

(b) A Federal agency may not send on assignment an employee who has

served on mobility assignments for more than a total of 6 years during

his or her Federal career. This applies only to Federal employees. The

Office of Personnel Management may waive this provision upon the

written request of the agency head, or his or her designee.

(c) A Federal agency may not send or receive on assignment an

employee who has served under the mobility authority for 4 continuous

years without at least a 12-month return to duty with the organization

from which originally assigned.

4. Section 334.105 is revised to read as follows:

Sec. 334.105 Obligated Service Requirement.

(a) A Federal employee assigned under this subchapter must agree as

a condition of accepting an assignment to serve with the Federal

Government upon completion of the assignment for a period equal to the

length of the assignment.

(b) If the employee fails to carry out this agreement, he or she

must reimburse the Federal agency for its share of the costs of the

assignment (exclusive of salary and benefits). The head of the Federal

agency, or his or her designee, may waive this reimbursement for good

and sufficient reason.

5. Section 334.106 is revised to read as follows:

Sec. 334.106 Requirement for written agreement.

(a) Before an assignment is made the Federal agency and the State,

local, or Indian tribal government, institution of higher education, or

other eligible organization and the assigned employee shall enter into

a written agreement which records the obligations and responsibilities

of the parties as specified in 5 U.S. Code 3373-3375.

(b) Agencies must maintain a copy of each assignment agreement form

as well as any modification to the agreement.

[FR Doc. 97-11048 Filed 4-28-97; 8:45 am]

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