[Federal Register Volume 59, Number 249 (Thursday, December 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32028]


[[Page Unknown]]

[Federal Register: December 29, 1994]


                                                   VOL. 59, NO. 249

                                        Thursday, December 29, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 304

RIN 3206-AF37

 

Expert and Consultant Appointments

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is proposing a rule 
to comply with a statutory change requiring OPM to regulate expert and 
consultant appointments. The Technical and Miscellaneous Civil Service 
Amendments Act of 1992 requires OPM to prescribe regulations for the 
employment and pay of persons appointed under the expert and consultant 
authority and to ensure agency compliance. In making the statutory 
change, Congress adopted a General Accounting Office recommendation for 
achieving better agency compliance with the legal requirements of this 
special appointment authority.

DATES: Comments must be received on or before February 27, 1995.

ADDRESSES: Send or deliver written comments to Leonard R. Klein, 
Associate Director for Career Entry, U.S. Office of Personnel 
Management, 1900 E Street, NW., room 6F08, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:
Tracy E. Spencer (202) 606-0830, or fax (202) 606-2329.

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. Business and government have used experts and 
consultants for many years to obtain outside advice and expertise to 
improve services and operations.
    In 1991, the General Accounting Office (GAO) reported its review of 
expert and consultant appointments made under section 3109 by nine 
installations during a 30-month period. GAO determined that 37 out of 
106 of those appointments were improper because the duties were 
appropriate for permanent employees or the appointees were not 
qualified as experts or consultants. GAO also found instances in which 
agencies used the authority as a quick way to hire someone destined for 
other duties or to fill in during staff shortages; did not know of 
other short-term hiring authorities; misread Federal Personnel Manual 
(FPM) guidance as allowing experts or consultants to perform regular, 
continuing work; did not follow OPM internal control procedures; or 
lacked required documentation.
    Among its report recommendations, GAO asked Congress to amend 5 
U.S.C. 3109 to authorize OPM to regulate the employment of experts and 
consultants. Congress responded by enacting section 2(8) of Public Law 
102-378, October 2, 1992, to require OPM to regulate appointments under 
5 U.S.C. 3109 and to collect data on pay and days worked.
    OPM recognizes agency needs to obtain outside opinion and expertise 
to improve programs, organizations, operations, and services. The 
purpose of section 3109 is to allow agencies to bring in special types 
of employees to address special situations requiring short-term or 
occasional attention. By bringing their talents and insights to bear on 
new or unusual problems, experts and consultants can help agencies work 
more economically and effectively.
    At the same time, agencies may use section 3109 only to meet 
genuine expert and consultant needs. For other short-term needs, 
agencies should consider other appointing authorities, including 
special need, temporary limited, term, various Schedule A, temporary 
Schedule C, SES limited term, and SES limited emergency.

a. Coverage

    Our proposed regulations apply only to Federal civil service 
appointments made under 5 U.S.C. 3109. They do not apply to 
appointments of experts and consultants under other authorities or to 
procurement contracts for consulting services.

b. Definitions

    The regulations provide definitions of ``expert,'' ``consultant,'' 
and related terms. The definitions vary slightly from those in FPM 
Chapter 304, and reflect GAO, OPM, and former Civil Service Commission 
views and opinions issued over many years. We clarified those 
definitions in FPM Letter 304-4, dated January 4, 1993. One difference 
from our past instructions is the definition of intermittent 
employment. Our proposed regulations replace that definition with OPM's 
general definition of ``intermittent employment'' published at 5 CFR 
340.401(c), that is, ``employment without a regularly scheduled tour of 
duty.''

c. Authority

    The section 3109 authority is summarized. Restrictions on agency 
use reflect GAO concerns and OPM guidance. Use of the authority for 
persons awaiting Presidential appointment is clarified.

d. Reappointments

    The law requires that experts and consultants be employed on a 
temporary or intermittent basis. Unlimited reappointments would not 
comply with this condition. Therefore, the proposed regulations provide 
that experts and consultants who work on a full-time basis may be 
employed for no more than 2 years (initial appointment not to exceed 1 
year and no more than one 1-year extension). This parallels our revised 
limit for all temporary appointments.
    For experts and consultants who work less than full time, the 
proposed regulations would give agencies two options for determining 
reappointment eligibility. One option would allow unlimited 
reappointments as long as an expert or consultant worked no more than 6 
months (130 days) in a service year. Experts and consultants who exceed 
the 6-month limit could be reappointed only once. This, too, tracks the 
proposed limits for temporary appointments.
    The second option would set a maximum lifetime earnings limit of 
twice the annual rate of basic pay rate for GS-15, step 10 (or for 
Executive Level IV if that maximum payable rate is specifically 
authorized in the agency's appropriation or other statute). An agency 
could reappoint an expert or consultant as long as his/her cumulative 
earnings did not exceed the lifetime limit. (This option would not, of 
course, apply to experts and consultants employed without 
compensation.)
    An agency could use either or both reappointment options, but not 
for the same employee. The agency would be expected to use objective 
criteria (e.g., pay rate, nature of duties, work schedule) to determine 
which reappointment option would apply to specific expert and 
consultant positions.

e. Determining Rate of Pay

    The rate of pay for experts and consultants is set by 
administrative action. Each agency has the flexibility to establish pay 
on an hourly or daily basis; however, agencies should consider the 
implications involved, such as possible entitlement to overtime pay for 
``hourly'' employees, the limitation on the maximum daily rate of basic 
pay, etc. Agencies also have authority to appoint experts and 
consultants under 5 U.S.C. 3109 without pay because these appointments 
may be made without regard to the pay entitlements that would normally 
apply under title 5 of the United States Code.
    In determining the rate of pay, agencies must consider criteria 
such as the level and difficulty of work to be performed, the 
individual's qualifications, comparable Federal and non-Federal pay 
rates, and the availability of qualified candidates.

f. Daily and Biweekly Pay Limitations

    Under 5 U.S.C. 3109, the maximum daily rate of pay for experts and 
consultants employed by agencies subject to chapter 41 (the General 
Schedule classification system) and subchapter III of chapter 53 
(General Schedule pay rates) of title 5, United States Code, is limited 
to the daily equivalent of the highest rate payable under 5 U.S.C. 
5332--that is, the General Schedule rate for GS-15, step 10, excluding 
any geographic or locality pay adjustment or special salary rate. 
Aggregate pay for the day (including any locality pay under 5 U.S.C. 
5304 or any premium pay under subchapter V of chapter 55 of title 5, 
United States Code), not just basic pay, is subject to the daily pay 
limitation.
    Agencies may pay a daily rate exceeding the daily rate for GS-15, 
step 10, only when specifically authorized to do so by an appropriation 
or other statute. Any daily rate limit must be computed under the 
provisions of 5 U.S.C. 5504(b)--that is, by dividing the applicable 
annual rate by 2,087 hours and then multiplying it by 8 hours. 
(Agencies are not expected to pay the maximum daily rate routinely.)
    As provided by section 101(c) of the Federal Employees Pay 
Comparability Act of 1990 (FEPCA), and reference in statutes other than 
title 5, United States Code, to a maximum daily rate equivalent to the 
former rate for GS-18 (under former section 5108 of title 5, United 
States Code) now will be read as subject to the maximum daily 
equivalent rate payable under 5 U.S.C. 5376--that is, the rate for 
level IV of the Executive Schedule.
    The proposed regulations also establish a biweekly limitation on 
expert and consultant pay subject to 5 U.S.C. 3109. For experts and 
consultants subject to the GS-15, step 10, daily pay limitation, the 
aggregate amount of pay (including premium pay and locality pay) for 
any biweekly pay period may not exceed the biweekly rate of basic pay 
for GS-15, step 10, excluding any geographic or locality pay adjustment 
or special salary rate. The biweekly rate must be computed under the 
provisions of 5 U.S.C. 5504(b)--that is, by dividing the annual GS-15, 
step 10, rate by 2,087 hours and then multiplying by 80 hours. For 
experts and consultants covered under laws that provide a pay 
limitation above the GS-15, step 10, rate, the Executive Level IV 
limitation on basic pay established under 5 U.S.C. 5373 may be 
applicable.

g. Pay and Leave Administration

    When managing pay and leave administration for experts and 
consultants. Agencies should examine carefully each underlying 
authority to determine which pay and leave entitlements apply. For 
example, experts and consultants are not entitled to interim geographic 
adjustments and locality-based comparability payments under title 5, 
except by specific agency request for extension of the authority. 
(Payments to non-GS employee categories must be consistent with 5 
U.S.C. 5304 and OPM's regulations at 5 CFR, part 531, subpart F.) 
Otherwise, agencies may adjust pay for experts and consultants to take 
into account geographic pay considerations by exercising their 
administrative pay-setting authority under 5 U.S.C. 3109, subject to 
the pay-setting criteria in these regulations and the applicable pay 
limitations.
    Experts and consultants are not entitled to overtime pay if they 
are paid on a daily basis. They may be entitled to overtime pay if paid 
on an hourly basis and if additional overtime work (more than 8 hours 
in a day or more than 40 hours in a week) is ordered and approved by 
the agency. Agencies should note the possibility that some types of 
experts or consultants may be covered by the Fair Labor Standards Act 
(FLSA) overtime pay provisions because they do not meet the criteria 
for an FLSA exemption.
    Experts and consultants who are appointed on an intermittent basis 
or who are on intermittent tours of duty--i.e., not regularly 
scheduled--are not entitled to earn leave. However, if appointed as 
temporary employees with a regularly scheduled tour of duty, they are 
entitled to earn and use leave based on the established regular tour of 
duty.
    Experts and consultants with intermittent tours of duty are not 
entitled to holiday pay for a day on which they perform no work or to 
premium pay for holiday work. Those with a regularly scheduled tour of 
duty are entitled to paid holidays or holiday premium pay, subject to 
applicable pay limitations.
    Expert and consultant pay is subject to the setoff provisions for 
civil service annuity payments and retired military pay.

h. Reports

    Section 2(8) of Public Law 102-378 also added subsection (e) to 5 
U.S.C. 3109 to require each agency to report annually to OPM the number 
of days worked and the pay received for each expert and consultant. OPM 
will provide separate reporting instructions.

i. Compliance

    Agencies are responsible for ensuring that their use of this 
employment authority complies with 5 U.S.C. 3109 and those regulations. 
Agencies must provide the controls and oversight necessary to ensure 
compliance. OPM will review as necessary both agency employment of 
experts and consultants and agency control and oversight of this 
employment authority.
    Because agencies will be responsible for control and oversight, 
present FPM internal control requirements for agencies will be 
discontinued. Those requirements were preappointment review and 
certification, quarterly internal reviews, and the annual Notification 
to employees of legal and FPM requirements. Agencies may adopt these 
and/or other measures as part of their oversight and control systems.

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.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, OPM proposes to add 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 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) 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.
    (b) A consultant position is one that requires providing advice, 
views, opinions, alternatives, or recommendations on a temporary or 
intermittent basis on issues, problems, or questions presented by a 
Federal official.
    (c) 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.
    (d) 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 or 
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.
    (e) Intermittent employment, as defined in part 340, subpart D, of 
this chapter, means employment without a regularly scheduled tour of 
duty.
    (f) 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, or intermittent work schedule.


Sec. 304.103  Authority.

    (a) Basic authority. 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 or temporary employment. Such an appointment is excepted 
from competitive examination, position classification, and the General 
Schedule pay rates. An individual appointed under this authority 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, 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. (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 in advance of the 
appointment which option it will use 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 
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 current maximum salary 
rate. At that point, the employment must be terminated.


Sec. 304.104  Determining rate of pay.

    (a) The rate of basic pay for experts or 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 Sec. 304.105.
    (b) The head of an agency, or his or her designee, shall make the 
pay determination based on the following criteria:
    (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 
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) Experts or consultants are not entitled to receive automatic 
adjustments in their rates of basic pay at the time of a change in the 
annual rates of pay under 5 U.S.C. 5303 unless specifically provided 
for in the official appointment document.
    (b) Experts or 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 or 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.
    (d) An expert or consultant is entitled to pay for service on an 
intermittent basis from 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 or 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 or consultants are subject to the provisions of 5 
U.S.C. 5532 on reduction of retired military pay.
    (g) Experts or consultants with a regularly scheduled tour of duty 
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 
regularly scheduled workday on which they perform no work. 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.


Sec. 304.108  Compliance.

    (a) Each agency using 5 U.S.C. 3109 must--
    (1) Establish and maintain a system of controls and oversight 
necessary to assure compliance with 5 U.S.C. 3109 and these 
regulations;
    (2) Inform officials and employees using the authority of the 
statutory and regulatory requirements through management briefings, 
training classes, written instructions, or other effective means; and
    (3) Include review of experts and consultants in its personnel 
management evaluation (PME) program. An agency without a PME program 
must review experts and consultants as part of its internal oversight 
activities.
    (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. 94-32028 Filed 12-28-94; 8:45 am]
BILLING CODE 6325-01-M