[Federal Register Volume 69, Number 10 (Thursday, January 15, 2004)]
[Proposed Rules]
[Pages 2308-2311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-862]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 69, No. 10 / Thursday, January 15, 2004 / 
Proposed Rules  

[[Page 2308]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 370

RIN 3206-AK28


Information Technology Exchange Program

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations to implement provisions contained in the E-Government Act 
of 2002. This law authorizes the temporary assignment of employees in 
the field of information technology management (IT) between the Federal 
Government and private sector organizations. It also authorizes Federal 
agencies to accept, on a volunteer basis, the services of non-Federal 
IT employees.

DATES: We will consider comments received on or before March 15, 2004.

ADDRESSES: Send, deliver or fax, written comments to Ms. Leah M. 
Meisel, Deputy Associate Director for Talent and Capacity Policy, U.S. 
Office of Personnel Management, Room 6551, 1900 E Street NW., 
Washington, DC 20415-9700; e-mail [email protected]; fax: (202) 606-2329.

FOR FURTHER INFORMATION CONTACT: Mr. Michael J. Mahoney at 202-606-0960 
or by e-mail at [email protected]. Mr. Mahoney may also be contacted by 
TTY at (202) 418-3134, or by fax at (202) 606-2329.

SUPPLEMENTARY INFORMATION: On December 17, 2002, the President signed 
the E-Government Act of 2002 (Act), Public Law 107-347, into law. The 
Act authorizes the Federal Information Technology Exchange Program, 
under which a Federal agency may detail an exceptional employee to a 
private organization as well as receive a private sector employee on 
detail to the agency. It also authorizes Federal agencies to accept 
services volunteered by persons in the information technology 
management field. The Act adds a new chapter 37 to title 5, United 
States Code, and this regulation adds a corresponding part, part 370, 
Information Technology Exchange Program, to the Code of Federal 
Regulations in accordance with 5 U.S.C. 3707. The new part has nine 
sections, as follows:

Purpose

    This section explains the purpose of this regulation which is to 
implement Section 209(b)(6) of the Act as well as 5 U.S.C. chapter 37, 
as enacted by Section 209(c) of the Act, in order to improve the 
competency of the Federal workforce in using information technology to 
deliver Government information and services. It also explains that 
details under this subpart allow Federal employees to serve with 
private sector organizations for a limited time period without loss of 
employee rights and benefits.

Definitions

    This section contains terms defined in 5 U.S.C. chapter 37. To 
avoid redundancy, we refer readers to the law where appropriate. It 
also contains a definition of information technology management which 
will aid agencies in determining an individual's eligibility for 
assignment under this part.

Eligibility

    This section explains the criteria under which individuals may be 
eligible for detail under this part. For the convenience of the reader, 
we have restated criteria contained in the Act. This section clarifies 
that members of the Senior Executive Service are eligible for 
assignment under this part. This section also clarifies that, for 
purposes of this part, appointments of equivalent tenure in the 
excepted service include appointments that have non-competitive 
conversion eligibility to the competitive service. These include, but 
are not limited to, Veterans' Recruitment Appointments (VRA) and 
appointments made under the Presidential Management Fellows program, 
the Federal Career Intern program, and the Student Career Experience 
program.

Length of Details

    This section explains the time limits (including extensions) for 
details made under this part. It also reminds agencies they may not 
begin or extend details after December 17, 2007. It explains, however, 
that individuals serving on details prior to this date may continue to 
do so as long as the detail began or was extended on or before December 
17, 2007.
    This section also establishes a lifetime limit of 6 years on the 
total number of years a Federal employee may be detailed under this 
part. This lifetime limit makes this part consistent with the limit for 
assignments made under the Intergovernmental Personnel Act Mobility 
Program.

Written Agreements

    This section requires an agency to enter into a written agreement 
before any detail under this part begins. It also explains the criteria 
that a written agreement must contain: Duties, duration, whether the 
individual will be supervised by a Federal or private sector employee, 
and employee responsibilities after the detail ends.

Terms and Conditions

    This section clarifies that a Federal employee serving on a detail 
under this part remains a Federal employee, and thus, retains all 
rights, benefits, and considerations he or she normally would have 
possessed if the detail had not been accepted.
    This section explains that a Federal employee on detail to a 
private sector organization may be supervised by private sector 
managers during the detail. An individual detailed from the private 
sector to a Federal agency may be supervised by Federal personnel. In 
either case, whoever will supervise the detailee must be described in 
the written agreement.
    This section also explains that private sector employees are 
considered to be employees of the agency for purposes of corruption 
statutes, ethics, financial disclosure, injury compensation, and tort 
claims.
    Lastly, this section explains that private sector organizations may 
not charge the Federal Government for the pay or benefits paid by the 
organization to an employee detailed to a Federal agency under this 
part. For the convenience of the reader, we have restated criteria 
contained in the Act.

Assignments to Small Business Concerns

    This section explains that agencies must ensure that 20 percent of

[[Page 2309]]

assignments to private organizations be made to small business concerns 
when an agency makes five or more assignments in any year. Agencies 
that do not meet this requirement must submit a report to Congress, 
which is in addition to any documentation and reports which OPM may 
require of them. This section also provides guidance and examples for 
agencies to follow for computing 20 percent of assignments to private 
sector organizations.

Reporting Requirements

    This section describes the Office of Personnel Management's 
obligations for submitting reports to Congress consistent with 5 U.S.C. 
3706. It also specifies the dates by which agencies must report to OPM. 
This section also reminds agencies of their obligation to report to 
Congress consistent with 5 U.S.C. 3703(e)(3) and their obligation under 
5 U.S.C. 3706(d) to provide OPM with whatever information OPM may 
require to fulfill its own Congressional reporting responsibility.

Agency Plans

    This section explains that the head of an agency must establish an 
agency plan before using this part. An agency plan must include, but is 
not limited to, a designation of the agency officials with authority to 
review and approve assignments; the number of candidates needed to 
satisfy the agency's information technology needs; procedures for 
selecting and identifying agency employees for detail; expected costs 
and benefits of each detail; return rights and obligations for agency 
employees selected for detail; and documentation and recordkeeping 
requirements sufficient to allow reconstruction of each action taken 
under this part.

Executive Order 12866, Regulatory Review

    This proposed rule has been reviewed by the Office of Management 
and Budget in accordance with Executive Order 12866.

Regulatory Flexibility Act

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities (including 
small businesses, small organizational units, and small governmental 
jurisdictions) because they would only apply to Federal agencies and 
employees.

List of Subjects in 5 CFR Part 370

    Claims. Government employees. Reporting and recordkeeping 
requirements.

U.S. Office of Personnel Management.
Kay Coles James,
Director.
    Accordingly, OPM proposes to add part 370 to title 5 of the Code of 
Federal Regulations, as follows:

PART 370--INFORMATION TECHNOLOGY EXCHANGE PROGRAM

Sec.
370.101 Purpose.
370.102 Definitions.
370.103 Eligibility.
370.104 Length of details.
370.105 Written agreements.
370.106 Terms and conditions.
370.107 Assignments to small business concerns.
370.108 Reporting requirements.
370.109 Agency plans.


    Authority: Pub. L. 107-347, 116 Stat. 2924 (5 U.S.C. 3701-3707).


Sec.  370.101  Purpose.

    (a) The purpose of this part is to implement the objectives of 
sections 209(b)(6) and (c) of the E-Government Act of 2002 (Pub. L. 
107-347) which authorizes the Office of Personnel Management to 
establish an Information Technology Exchange Program. This statute 
authorizes the temporary assignment of information technology employees 
between the Federal Government and private sector organizations. The 
statute also authorizes agencies to accept, on a volunteer basis, the 
services of private sector information technology employees detailed 
under the Information Technology Exchange Program.
    (b) Under this part, agency heads, or their designees, may approve 
details as a mechanism for improving the Federal workforce's competency 
in using information technology to deliver Government information and 
services. Details under this part allow Federal employees to serve with 
private sector organizations for a limited time period without loss of 
employee rights and benefits. Agencies may not make details under this 
part to meet the personal interests of employees, to circumvent 
personnel ceilings, or as a substitute for other, more appropriate 
personnel decisions or actions.


Sec.  370.102  Definitions.

    In this part:
    Agency means an Executive agency as defined in 5 U.S.C. 105, with 
the exception of the General Accounting Office.
    Detail means:
    (1) The assignment or loan of an employee of an agency to a private 
sector organization without a change of position from the agency that 
employs the individual (5 U.S.C. 3701(2)(A)), or
    (2) The assignment or loan of an employee of a private sector 
organization to an agency without a change of position from the private 
sector organization that employs the individual (5 U.S.C. 3701(2)(B)).
    Information technology management means the planning, organizing, 
staffing, directing, integrating, or controlling of systems and 
services used in the automated acquisition, storage, manipulation, 
management, movement control, display, switching, interchange, 
transmission, assurance, or reception of information. Information 
technology includes computers, network components, peripheral 
equipment, software, firmware, services, and related resources.
    OPM means the Office of Personnel Management.
    Small Business Concern means a business concern that satisfies the 
definitions and standards specified by the Administrator of the Small 
Business Administration (SBA), under section 3(a)(2) of the Small 
Business Act. SBA standards and definitions are codified at 13 CFR part 
121. Agencies can find more information on the SBA's Web site at http://www.sba.gov/size, including a list of the six SBA area offices that 
have size specialists who deal with Federal agencies on size matters 
daily at http://www.sba.gov/size/indexcontacts.html. SBA's table of 
size standards is located at http://www.sba.gov/size/indextableofsize.html.


Sec.  370.103  Eligibility.

    (a) To be eligible for a detail under this part, an individual 
must:
    (1) Work in the field of information technology management;
    (2) Be considered an exceptional performer by the individual's 
current employer; and
    (3) Be expected by the individual's current employer to assume 
increased responsibilities for the management of information technology 
in the future.
    (b) To be eligible for a detail under this part, a Federal 
employee, in addition to meeting the requirements of paragraph (a) of 
this section, must be serving at the GS-11 level or above (or 
equivalent), which includes members of the Senior Executive Service, 
under a career or career-conditional appointment or an appointment of

[[Page 2310]]

equivalent tenure in the excepted service. For purposes of this part 
appointments of equivalent tenure in the excepted service include, but 
are not limited to, Veterans' Recruitment Appointments and appointments 
made under the Presidential Management Intern program, the Federal 
Career Intern program, and the Student Career Experience program.


Sec.  370.104  Length of details.

    (a) Assignments under this part may be for a period of between 3 
months and one year, and may be extended in 3-month increments for a 
total of not more than 1 additional year, in accordance with 5 U.S.C. 
3702(d).
    (b) Agencies may not approve or extend details after December 17, 
2007. An individual serving on a detail prior to this date may continue 
to do so as long as the detail began or was extended on or before 
December 17, 2007.
    (c) A Federal agency may not send on assignment an employee who has 
served on a detail under this part for more than 6 years during his or 
her Federal career. OPM may waive this provision upon the request of 
the agency head, or his or her designee.


Sec.  370.105  Written agreements.

    Before the detail begins, an agency must enter into a written 
agreement with any individual detailed under this part. The written 
agreement must specify:
    (a) The terms and conditions of the detail (e.g., duties, duration, 
including the terms on which extensions may be granted, if applicable);
    (b) Whether the individual will be supervised by a Federal or 
private sector employee;
    (c) The requirement for Federal employees to remain in the civil 
service upon completion of the assignment, for a period equal to the 
length of the assignment including any extension; and
    (d) The obligations and responsibilities of all parties as 
described in 5 U.S.C. 3702 through 3704.


Sec.  370.106  Terms and conditions.

    (a) A Federal employee detailed under this part:
    (1) Remains a Federal employee without loss of employee rights and 
benefits attached to that status. These include, but are not limited 
to:
    (i) Consideration for promotion;
    (ii) Leave accrual;
    (iii) Continuation of retirement benefits and health, life, and 
long-term care insurance benefits; and
    (iv) Pay increases the employee otherwise would have received had 
he or she not been detailed;
    (2) Remains covered for purposes of the Federal Tort Claims Act, 
and for purposes of injury compensation as described in 5 U.S.C. 
chapter 81; and
    (3) Is subject to any action that may impact the employee's 
position while he or she is detailed.
    (b) An individual detailed from a private sector organization under 
this part:
    (1) Is deemed to be an employee of the agency for purposes of:
    (i) 5 U.S.C. chapter 73;
    (ii) 18 U.S.C. 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 
654, 1905, and 1913;
    (iii) 31 U.S.C. 1343, 1344, and 1349(b);
    (iv) The Federal Tort Claims Act and any other Federal tort 
liability statute;
    (v) The Ethics in Government Act of 1978;
    (vi) Section 1043 of the Internal Revenue Code of 1986;
    (vii) Section 27 of the Office of Federal Procurement Policy Act; 
and
    (2) Does not have any right or expectation for Federal employment 
solely on the basis of his or her detail;
    (3) May not have access to any trade secrets or to any other 
nonpublic information which is of commercial value to the private 
sector organization from which he or she is assigned;
    (4) Is subject to such regulations as the President may prescribe; 
and
    (5) Shall be covered by 5 U.S.C. chapter 81 as provided in 5 U.S.C. 
3704(c).
    (c) Individuals detailed under this part may be supervised by 
either Federal or private sector managers. For example, a Federal 
employee on detail to a private sector organization may be supervised 
by a private sector manager. Likewise, a private sector employee on 
detail to a Federal agency may be supervised by a Federal employee. The 
supervision of the duties of an individual detailed under this part 
must be described in the written agreement.
    (d) As provided in 5 U.S.C. 3704(d), a private sector organization 
may not charge the Federal Government for the costs of pay or benefits 
paid by the organization to an employee assigned to an agency under 
this part.


Sec.  370.107  Assignments to small business concerns.

    (a) The head of each agency shall take such actions as may be 
necessary to ensure that, of the assignments made to private sector 
organizations in each year, at least 20 percent are to small business 
concerns, in accordance with 5 U.S.C. 3703(e)(1).
    (b) Agencies must round up to the nearest whole number when 
calculating the percentage of assignments to small business concerns 
needed to meet the requirements of this section. For example, an agency 
assigned 11 individuals to private sector organizations during a given 
year. To meet the 20 percent requirement, the agency must have made at 
least three (rounded up from 2.2) of these assignments to small 
business concerns. As another example, an agency assigned 19 
individuals to private sector organizations during a given year. To 
meet the 20 percent requirement, the agency must have made at least 
four (rounded up from 3.8) of these assignments to small business 
concerns.
    (c) For purposes of this section, assignments made in a year are 
those commencing in that year, in accordance with 5 U.S.C. 
3703(e)(2)(C).
    (d) Agencies which do not meet the requirements of this section are 
subject to the reporting requirements in 5 U.S.C. 3703(e)(3).
    (e) An agency in any year which makes fewer than five assignments 
to private sector organizations is not subject to this section.


Sec.  370.108  Reporting requirements.

    (a) OPM must prepare and submit to Congress semiannual reports in 
accordance with 5 U.S.C. 3706.
    (b) Federal agencies using this part must prepare and submit to OPM 
semiannual reports in accordance with 5 U.S.C. 3706, including such 
other information as OPM considers appropriate, in accordance with 5 
U.S.C. 3706(b)(3) and (d). These reports are due to OPM no later than 
April 7 and October 7 of each year for the immediately preceding 6-
month period ending March 31 and September 30, respectively.
    (c) Federal agencies which do not meet the requirements of Sec.  
370.107 must prepare and submit annual reports to Congress in 
accordance with 5 U.S.C. 3703(e)(3), as appropriate.


Sec.  370.109  Agency plans.

    Before detailing agency employees or receiving private sector 
employees under this part, an agency must establish an Information 
Technology Exchange Program plan. The plan must include, but is not 
limited to, the following elements:
    (a) A designation of the agency officials with authority to review 
and approve assignments;
    (b) The number of candidates needed to satisfy the agency's 
information technology needs;

[[Page 2311]]

    (c) Procedures for selecting and identifying exceptional agency 
employees for detail;
    (d) Return rights and obligations for agency employees selected for 
detail; and
    (e) Documentation and recordkeeping requirements sufficient to 
allow reconstruction of each action taken under this part.
[FR Doc. 04-862 Filed 1-14-04; 8:45 am]
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