[Federal Register Volume 59, Number 250 (Friday, December 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32330]


[[Page Unknown]]

[Federal Register: December 30, 1994]


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Part V





Office of Personnel Management





_______________________________________________________________________



5 CFR Part 315




Career and Career-Conditional Employment; Interim Rule
OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 315

RIN 3206-AG55

 
Career and Career-Conditional Employment

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
regulations to continue existing requirements under which career-
conditional employees acquire career tenure and reinstatement 
eligibility. At present, these requirements are in provisionally 
retained chapter 315 of the former Federal Personnel Manual. Issuance 
of this interim rule will prevent a lapse in Governmentwide 
requirements when chapter 315 expires on December 31, 1994.

DATES: Interim rules effective on January 1, 1995. Comments must be 
submitted on or before February 28, 1995.

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

FOR FURTHER INFORMATION CONTACT: Lee Edwards on 202-606-0830, TDD 202-
606-0023, or FAX 202-606-2329.

SUPPLEMENTARY INFORMATION: Regulations covering career-conditional 
appointments in the Federal service are in 5 CFR part 315. The career-
conditional appointment is the initial permanent appointment to 
competitive service positions. Upon satisfying certain conditions, a 
career-conditional employee acquires career tenure, which provides 
higher retention standing and unlimited reinstatement eligibility.
    Currently, 5 CFR 315.201(a) requires 3 years of creditable service 
for an employee to acquire career tenure. Section 315.201(b) provides 
that OPM will publish in the Federal Personnel Manual the conditions 
under which service may be credited in meeting the 3-year requirement.
    As recommended by the National Performance Review, OPM abolished 
the Federal Personnel Manual (FPM) in December 1993. At the time, FPM 
Chapter 315 on the career-conditional appointment system was 
provisionally retained through December 1994 to enable OPM to issue 
regulations to replace needed instructions found only in the FPM, 
including the conditions under which service is credited toward career 
tenure.
    The FPM instructions also specify the conditions under which 
reinstatement eligibility of career-conditional employees may be 
extended beyond the 3-year period set in 5 CFR 315.401. Reinstatement 
eligibility permits an individual to be rehired without competing in a 
competitive civil service examination. (Career employees and preference 
eligible career-conditional employees have unlimited reinstatement 
eligibility.)
    On October 20, 1994, OPM issued proposed revisions to conditions 
for acquiring career tenure and reinstatement eligibility (59 FR 
52925). Because the comment period ends on December 20, 1994, OPM will 
have insufficient time to issue final rules on that proposal to be 
effective January 1, 1995, and prevent a lapse in Governmentwide 
requirements for career tenure and reinstatement. To assure that 
employees continue to acquire career tenure and reinstatement 
eligibility under the same set of conditions, OPM is adopting in 5 CFR 
part 315 the existing requirements for career tenure that are in 
section 2-4, subchapter 2, and for reinstatement eligibility in section 
4-2, subchapter 4, of the provisionally retained chapter 315 of the 
former Federal Personnel Manual.
    Changes from the FPM instructions are limited to editorial 
revisions and inclusion of existing requirements in interchange 
arrangements with other merit systems that OPM approved under 5 CFR 
Sec. 6.7.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

    Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists 
for waiving the general notice of proposed rulemaking. Also, pursuant 
to 5 U.S.C. 553(d)(3), I find that good cause exists to make this 
amendment effective in less than 30 days. This regulation is effective 
immediately to continue existing longstanding rules from the Federal 
Personnel Manual that determine employees' retention standing and 
eligibility for reinstatement. It would be contrary to the public 
interest to allow these Governmentwide rules to expire when the Manual 
expires on December 31, 1994. The delay in the effective date is being 
waived to prevent any lapse in coverage of these rules.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it pertains 
only to Federal employees and agencies.

List of Subjects in 5 CFR Part 315

    Government employees.

    Accordingly, OPM is amending part 315 of title 5, Code of Federal 
Regulations, as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

    1. The authority citation for part 315 is revised 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. Sec. 315.201, paragraphs (a) and (b) are revised to read as 
follows:


Sec. 315.201  Service requirement for career tenure.

    (a) Service requirement. A person employed in the competitive 
service for other than temporary, term, or indefinite employment is 
appointed as a career or career-conditional employee subject to the 
probationary period required by subpart H of this part. Except as 
provided in paragraph (c) of this section, an employee must serve 3 
years of substantially continuous creditable service as defined in 
paragraph (b) of this section to become a career employee.
    (b) Creditable service. Unless otherwise approved by OPM, the 
service required for career tenure must begin and end with nontemporary 
employment in the competitive service except as described in paragraph 
(1) of this subsection, must include service under an appointment based 
on or leading to competitive status, be substantially continuous, and 
total 3 years, as follows:
    (1) Nontemporary employment. To be creditable, the 3-year period of 
service must begin with one of the following:
    (i) Nontemporary appointment in the competitive service. For this 
purpose, nontemporary appointment includes a career-conditional 
appointment; career appointment; reinstatement under subpart D of this 
part; and transfer under subpart E of this part. The 3-year period may 
also begin, but not end, with status quo employment under subpart G of 
part 316 of this chapter, and overseas limited appointment of 
indefinite duration or overseas limited term appointment under part 301 
of this chapter. The 3-year period also may have begun with permanent 
employment under now obsolete appointing authorities such as 
probational, war service indefinite, and emergency indefinite 
appointments. Determinations of whether an obsolete authority provides 
the basis for creditable service may be obtained from OPM;
    (ii) The acquisition of competitive status on January 23, 1955, 
under provisions of Executive Order 10577, while serving in the 
excepted service;
    (iii) Nontemporary appointment from a civil service register to a 
position in the excepted service before January 23, 1955;
    (iv) Nontemporary appointment to a position in the District of 
Columbia Government before January 23, 1955, evidencing selection in 
regular order from a civil service register used to certify for 
probational appointment in the Federal service. Appointment from a 
register maintained only for District of Columbia Government would not 
meet this condition;
    (v) Nontemporary appointment to an excepted position, provided the 
employee's excepted position was brought into the competitive service 
and, on that basis, the employee acquired competitive status or was 
converted to a career or career-conditional appointment;
    (vi) Nontemporary appointment to a nonappropriated fund (NAF) 
position in or under the Department of Defense, provided the employee's 
NAF position was brought into the competitive service and, on that 
basis, the employee acquired competitive status or was converted to a 
career or career-conditional appointment;
    (vii) Nontemporary excepted or nonappropriated fund appointment, 
Foreign Service appointment, or appointment in the Canal Zone Merit 
System, provided the employee is appointed or transferred to a 
competitive service position under the terms of an interchange 
agreement with another merit system under Sec. 6.7 of this chapter, 
under Executive Order 11219 as amended by Executive Order 12292, or 
under Executive Order 11171;
    (viii) The date of appointment to a position on the White House 
Staff or in the immediate office of the President or Vice President, 
provided the service has been continuous and the individual was 
appointed to a competitive service position under Sec. 315.602 of this 
chapter;
    (ix) The date of nontemporary excepted appointment under Schedule 
B, Sec. 213.3202 of this chapter, provided the student's appointment is 
converted to career or career-conditional appointment under Executive 
Order 12015;
    (x) The date of veterans readjustment appointment (VRA), provided 
the appointment is converted to career or career-conditional 
appointment under Sec. 315.705 of this chapter, or the person is 
appointed from a civil service register without a break in service 
while serving under a VRA;
    (xi) The date of nontemporary appointment to the Postal Career 
Service or the Postal Rate Commission after July 1, 1971, provided the 
individual is appointed to a career or career-conditional appointment 
under 39 U.S.C. 1006;
    (xii) The date of nontemporary appointment under Schedule A, 
Secs. 213.3102(t) or 213.3102(u) of this chapter, of a mentally 
retarded or severely physically handicapped person, provided the 
employee's appointment is converted to career or career-conditional 
appointment under Sec. 315.709 of this chapter;
    (xiii) The date of appointment as a Presidential Management Intern 
under Schedule A, Sec. 213.3102(ii) of this chapter, provided the 
employee's appointment is converted to career or career-conditional 
appointment under Sec. 315.708;
    (xiv) The date of temporary appointment pending establishment of a 
register, provided the appointment was converted to career executive 
assignment;
    (xv) The date of temporary appointment pending establishment of a 
register (TAPER), provided:
    (A) The employee is serving on or after February 8, 1968, and his 
or her TAPER employment is changed by conversion or by an appointment 
without a break in service of a single workday to a career or career-
conditional appointment from a civil service register; and
    (B) His or her TAPER service has been continuous without a break in 
service of more than 30 calendar days or without interruption for more 
than 30 calendar days by other than status quo or indefinite employment 
in the competitive service, or military service provided he or she is 
reemployed as a TAPER employee within 120 days after separation under 
honorable conditions from the military service;
    (xvi) The starting date of National Guard technician service 
performed before January 1, 1969, provided the person was employed as a 
National Guard technician on December 31, 1968, and his or her position 
was brought into the competitive service on January 1, 1969;
    (xvii) The starting date of active service as an administrative 
enrollee in the United States Merchant Marine Academy; and
    (xviii) The date on which an employee became eligible for benefits 
under Public Law 83-121, unless an earlier date can be chosen because 
of prior nontemporary service.
    (2) Competitive status. Career tenure is acquired only under a 
permanent appointment in the competitive service that provides or leads 
to competitive status.
    (3) Substantially continuous service. A single break in creditable 
service of more than 30 calendar days will require the beginning of a 
new 3-year period, except for:
    (i) Breaks incident to entry into or return from military service 
and return from defense transfer, provided the person is reemployed in 
Federal service during his or her period of statutory or regulatory 
restoration or reemployment rights;
    (ii) Breaks incident to transfer to and from an international 
organization, provided the person is reemployed in Federal service 
under subpart C of part 352 of this chapter;
    (iii) Breaks during which an employee was eligible to receive 
injury compensation under the Office of Workers' Compensation Programs, 
provided the person is reemployed under part 353 of this chapter;
    (iv) Breaks incident to a restoration to correct an unjustified or 
unwarranted separation;
    (v) Breaks following separation by reduction in force of employees 
who are eligible for entry on the reemployment priority list under 
subpart B of part 330 of this chapter, provided the person is 
reemployed in Federal service during the period of his or her 
reemployment priority;
    (vi) Breaks following involuntary separation without personal cause 
of employees who are eligible for a noncompetitive appointment based on 
an interchange agreement with another merit system under Sec. 6.7 of 
this chapter, provided the person is employed in the competitive 
service under the agreement during the period of his or her 
eligibility;
    (vii) Breaks incident to volunteer service or training required 
after enrollment in volunteer service provided the person is reemployed 
in Federal service within 90 days of the termination of volunteer 
service or training. This provision applies to Peace Corps, VISTA, or 
other ACTION full-time programs that are potentially creditable in 
subsequent Federal employment for length of service for leave, 
reduction in force, and retirement purposes;
    (viii) Breaks incident to employment in a nonfederal organization 
that occurred because a Federal function was transferred to the 
organization by law, provided the employee moved as a result of the 
transfer of function without a break in service of more than 3 days to 
the nonfederal organization and is reemployed by nontemporary 
appointment in the competitive service without a break in service of 
more than 30 calendar days after separation from the nonfederal 
organization;
    (ix) Employment with the District of Columbia Government after 
January 1, 1980 (the date the District implemented an independent merit 
personnel system not tied to the Federal system), provided the person 
was a District employee on December 31, 1979, was converted to the 
District system on January 1, 1980, and is reemployed by nontemporary 
appointment in the competitive service without a break in service of 
more than 30 calendar days after separation from District employment; 
and
    (x) Breaks that occur when a career-conditional employee leaves 
Federal employment to accompany a spouse or parent (if the employee is 
their unmarried child under 21 years of age) who is a member of the 
Armed Forces or a Federal civilian employee on official assignment to 
an overseas post of duty, provided the employee's separation from 
employment occurs no more than 90 calendar days prior to going overseas 
and reinstatement occurs within 180 calendar days of return to the 
United States. Overseas posts of duty are duty locations outside the 50 
States of the United States, the District of Columbia, Guam, Puerto 
Rico, and the Virgin Islands.
    (4) Crediting service. An employee's creditable service must total 
3 years, under the following conditions.
    (i) Work schedule. (A) Full-time service, and part-time service on 
or after July 1, 1962, are counted as calendar time from the date of 
appointment to date of separation.
    (B) Intermittent service on or after July 1, 1962 is counted as 1 
day for each day an employee is in pay status, regardless of the number 
of hours for which the employee is actually paid on a given day. For 
this purpose, 780 days in pay status are equivalent to 3 years' 
service, but the service requirement may not be satisfied in less than 
3 years of calendar time.
    (C) Part-time and intermittent service before July 1, 1962, is 
counted based on the number of hours actually employed, including any 
paid leave. For this purpose, 6,240 hours of paid time are equivalent 
to 3 years' service, but the service requirement may not be satisfied 
in less than 3 years of calendar tine.
    (ii) Nonpay status on the rolls and time off the rolls. No credit 
is given for periods of nonpay status and time off the rolls, except 
under the following conditions:
    (A) Credit is given for the first 30 calendar days of each period 
of nonpay status on the rolls during full-time employment, or during 
part-time employment on or after July 1, 1962. On this same basis, a 
seasonal employee receives credit for the first 30 calendar days of 
each period of nonduty/nonpay status. Nonpay status in excess of 30 
days extends the 3-year waiting period by the amount of the excess;
    (B) Full credit is given for periods of nonpay status and time off 
the rolls incident to entry into and return from military service and 
return from defense transfer, provided the person is reemployed in 
Federal service during the period of his or her statutory or regulatory 
restoration or reemployment rights;
    (C) Full credit is given for periods of nonpay status and time off 
the rolls incident to transfer to and return from an international 
organization, provided the person is reemployed in Federal service 
under subpart C of part 352 of this chapter;
    (D) Full credit is given for periods of nonpay status during which 
an employee was eligible to receive continuation of pay or injury 
compensation under the Office of Workers' Compensation Programs. Full 
credit also is given for periods of time off the rolls during which an 
employee was eligible to receive injury compensation under the Office 
of Workers' Compensation Programs, provided the person is reemployed 
under part 353 of this chapter.
    (E) Credit is given for up to 30 calendar days for time off the 
rolls that follows separation by reduction in force of employees who 
are eligible for entry on the reemployment priority list under subpart 
B of part 330 of this chapter, provided the person is reemployed in 
Federal service during the period of his or her reemployment priority; 
and
    (F) Credit is given for up to 30 calendar days for time off the 
rolls that follow involuntary separation without personal cause of 
employees who are eligible for a noncompetitive appointment based on an 
interchange agreement with another merit system under Sec. 6.7 of this 
chapter, provided the person is employed in the competitive service 
under the agreement during the period of his or her eligibility.
    (iii) Restoration based on unwarranted or improper actions. (A) 
Based on a finding made before March 30, 1966, that a furlough, 
suspension, or separation was unwarranted or improper, an employee 
restored to duty receives full calendar time credit for the period of 
furlough, suspension, or separation if he or she was eligible to 
receive retroactive pay under 5 U.S.C. 5591-93 (formerly Pub. L. 80-
623) or 5 U.S.C. 5594 (formerly Pub. L. 81-733).
    (B) Based on a finding made on or after March 30, 1966, that a 
furlough, suspension, or separation was unwarranted or improper, an 
employee restored to duty receives full calendar time credit for the 
period of furlough, suspension, or separation for which he or she is 
eligible to receive back pay. If the employee is restored to duty at a 
date later than the original adverse action, credit for intervening 
periods of nonpay status or breaks in service is given in accordance 
with other provisions of this subsection. If the employee had been 
properly separated from the rolls of the agency before a finding was 
made that the adverse action was unwarranted or improper, the 
correction and additional service credit given the employee may not 
extend beyond the date of the proper separation.
    (iv) Intervening service. Certain types of service that ordinarily 
are not creditable are counted when they intervene between two periods 
of creditable service without a single break in service in excess of 30 
calendar days, excepted as provided in subparagraph (H) of his 
paragraph. Under these conditions, credit is given for periods of 
service:
    (A) In the excepted service of the Federal executive branch, 
including employment in nonappropriated fund positions in or under any 
Federal agency;
    (B) Under temporary, term, or other nonpermanent employment in the 
Federal competitive service;
    (C) In the Senior Executive Service;
    (D) In the Federal legislative branch;
    (E) In the Federal judicial branch;
    (F) In the armed forces;
    (G) In the District of Columbia Government through December 31, 
1979. For an employee on the District rolls on December 31, 1979, who 
converted on January 1, 1980, to the District independent personnel 
system, credit also is given for service between January 1, 1980, and 
September 25, 1980. Otherwise, service in the District of Columbia 
Government on or after January 1, 1980, is not creditable as 
intervening service; and
    (H) Performed overseas by family members, as defined by 
Sec. 315.608 of this chapter. Such service is creditable toward career 
tenure if it intervenes between two periods of creditable service 
without a single break in excess of 180 days.
* * * * *
    3. In Sec. 315.401, paragraph (b) is revised and paragraph (c) is 
added, to read as follows:


Sec. 315.401  Reinstatement.

* * * * *
    (b) Time limit. There is no time limit on the reinstatement 
eligibility of a preference eligible or a person who completed the 
service requirement for career tenure. Except as provided in paragraph 
(c) of this section, an agency may reinstate a nonpreference eligible 
who has not completed the service requirement for career tenure only 
within 3 years following the date of separation. This time limit begins 
to run from the date of separation from the last position in which the 
person served under a career appointment, career-conditioned 
appointment, indefinite appointment in lieu of reinstatement, or an 
appointment under which he or she acquired competitive status.
    (c) Extension of time limit. Intervening service of the following 
types extends the 3-year limit on reinstatement of eligibility of a 
nonpreference eligible who has not completed the service requirement 
for career tenure:
    (1) Employment in Federal competitive service positions under 
temporary, term, indefinite, or other nonpermanent appointment.
    (2) Employment in Federal excepted, nonappropriated fund, or Senior 
Executive Service positions in the executive branch;
    (3) Employment in the Federal judicial branch or in the executive 
or judicial branches of the insular possessions of the United States;
    (4) Employment in Federal legislative branch;
    (5) Employment in an international governmental organization or a 
territorial, State, county, municipal, or foreign government in a 
position in which the agency determines that the proposed appointee 
acquired valuable training and experience for the position to be 
filled;
    (6) A substantially full-time training course in any educational 
institution of recognized standing when the agency finds that the 
proposed appointee acquired valuable training or experience for the 
position to be filled;
    (7) Compulsory service on work of national importance under 
civilian direction as required by the Military Selective Service Act;
    (8) Active military duty terminated under honorable conditions;
    (9) Service with the District of Columbia Government prior to 
January 1, 1980. In addition, for an employee on the District 
Government rolls on December 31, 1979, who was converted on January 1, 
1980, to the District of Columbia merit personnel system, continuous 
District Government service after that date also extends the 3-year 
period;
    (10) Periods of nonemployement during which a person is eligible 
for injury compensation under the Office of Workers' Compensation 
Programs;
    (11) Periods of nonemployment during which a person receives 
disability retirement under the Civil Service or Federal Employees 
Retirement System;
    (12) Employment by a nonfederal organization when the person's 
function was transferred to the nonfederal organization on a contract 
basis or by law or executive order;
    (13) Volunteer service and training required prior to actual 
enrollment as a volunteer with Peace Corps, VISTA, and other ACTION 
programs if it begins within the period the person is eligible for 
reinstatement; and
    (14) Periods of overseas residence during which a spouse or 
unmarried child, under 21 years of age, of a member of the Armed Forces 
or of a Federal civilian employee is accompanying that individual on 
official assignment to an overseas post of duty. Overseas posts of duty 
are duty locations outside the 50 States of the United States, the 
District of Columbia, Guam, Puerto Rico, and the Virgin Islands.

[FR Doc. 94-32330 Filed 12-29-94; 8:45 am]
BILLING CODE 6323-01-M