[Federal Register Volume 60, Number 170 (Friday, September 1, 1995)]
[Rules and Regulations]
[Pages 45647-45650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21573]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 170 / Friday, September 1, 1995 / 
Rules and Regulations  


[[Page 45647]]


OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 304

RIN 3206-AF37


Expert and Consultant Appointments

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

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 

[[Page 45649]]
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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