[Federal Register Volume 70, Number 147 (Tuesday, August 2, 2005)]
[Rules and Regulations]
[Pages 44219-44222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15173]



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  Federal Register / Vol. 70, No. 147 / Tuesday, August 2, 2005 / Rules 
and Regulations  

[[Page 44219]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 315

RIN 3206-AJ28


Excepted Service; Career and Career-Conditional Employment

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to implement the staffing provisions of the Federal Career 
Intern Program (FCIP). This program will help agencies to recruit and 
to attract exceptional men and women who have a variety of experiences, 
academic disciplines, and competencies necessary for the effective 
analysis and execution of public programs.

DATES: Effective September 1, 2005.

FOR FURTHER INFORMATION CONTACT: Hakeem Basheerud-Deen, 
[email protected]; on 202-606-1434 or FAX (202) 606-0390.

SUPPLEMENTARY INFORMATION: Executive Order 13162, dated July 6, 2000, 
authorized the establishment of the Federal Career Intern Program 
(FCIP) to assist agencies in recruiting and attracting exceptional 
individuals with a variety of experiences, academic disciplines, and 
competencies necessary for the effective analysis and execution of 
public programs. On December 14, 2000, the Office of Personnel 
Management (OPM) published an interim rule at 65 FR 78078, now codified 
at 5 CFR 213.3202(o), to implement the Executive order. The interim 
rule is adopted as a final rule with the following changes based on 
agency comments.
    OPM received written comments from eight agencies. We also received 
a number of oral comments and questions from agencies asking for 
additional information and/or clarification. The majority of the 
comments were favorable.

Comments

Appointments, Section 213.3202(o)(1)

    Section 213.3202(o)(1) authorizes excepted service appointments 
under the FCIP. A number of agencies requested clarification on the 
duration of the internship. In general, career interns are appointed to 
a 2-year internship, consistent with the time served by individuals 
appointed under the Presidential Management Fellows (PMF) Program and 
those appointed under the Veterans' Recruitment Act (VRA) Program. 
Career intern appointments are made without the not-to-exceed (NTE) 
dates used with other temporary or time-limited appointments.
    The internship portion of the FCIP is generally made for 2 years, 
but because the appointment permits the noncompetitive conversion to a 
permanent job, the appointment is not treated as temporary or time-
limited. In December, 2000, OPM's Office of Workforce Information 
provided agencies with the following information on documenting 
personnel actions under the FCIP:
    Appointment Type: Exc Appt; Conv to Exc Apt.
    Nature of Action: 170; 570.
    Legal Authority: Sch B. 213.3202(o).
    Legal Authority Code: YCM.
    Agencies should document career intern appointments by including a 
remark on the Standard Form 50 indicating the nature of the 
appointment. Such a remark is used when appointing individuals under 
the PMF and VRA programs. The remark could read as follows:

    ``This appointment is intended to continue for 2 years, unless 
extended up to 1 additional year. Upon satisfactory completion of 
the internship, you may be noncompetitively converted to a career or 
career-conditional appointment. If you fail to satisfactorily 
complete the internship, your employment will be terminated.''

    For employees afforded reemployment rights under Sec.  
213.3202(o)(6)(ii), you may end the remark with:

    ``If your performance is not satisfactory or if you fail to 
satisfactorily complete the internship, you will be returned to a 
position at no lower grade or pay than the position you left to 
enter the Federal Career Intern Program.''

    One agency asked if it needed OPM approval for making appointments 
to trainee positions at grades other than GS-5/7/9. As stated in 
Executive Order 13162, agencies may make appointments to positions at 
grades GS-5, 7, and 9 (or equivalent) or other trainee levels 
(including at one-grade rather than two-grade intervals), appropriate 
for the FCIP. Agencies do not need OPM approval to fill career intern 
positions traditionally considered at the trainee level. However, 
agencies must request OPM approval to fill higher graded positions.
    A few agencies asked for more information on the types of positions 
appropriate for the program. Positions most suited for this program are 
entry-level positions that require training and development to equip 
the employee with the competencies needed to successfully perform the 
job. Examples of such positions include: Accounting and auditing, 
engineering, human resources management, information technology, law 
enforcement, and scientific research.

Extensions, Section 213.3202(o)(2)

    Executive Order 13162 authorizes OPM to extend career intern 
appointments up to 1 additional year. One agency suggested that OPM 
delegate to agencies the authority to extend career intern appointments 
up to 1 additional year. We did not adopt this suggestion. However, we 
chose to delegate to agencies the authority to extend an appointment up 
to 120 days for unforeseen or unusual circumstances. We decided to 
reserve to OPM the authority to grant extensions beyond 120 days, up to 
1 year.

Qualification Requirements for Career Interns, Section 213.3202(o)(3)

    Two agencies asked us to clarify the relationship between the 
qualification requirements of Part 302, Employment in the Excepted 
Service, and the qualification requirements of Schedule B appointments 
under this Part. In general, Part 302 authorizes agencies to establish 
qualification requirements for positions in the excepted service, but 
that depends on the nature of the excepted appointments. Appointments 
(other than appointments to student trainee positions) made under 
Schedule

[[Page 44220]]

B of Part 213 are subject to OPM's qualification standards or OPM-
approved qualification standards. Therefore, career interns are subject 
to the OPM qualification requirements outlined in section 
213.3202(o)(3) just as any other applicant for a Schedule B position 
would be.

Conversion to Competitive Service, Section 213.3202(o)(6)

    Section 213.3202(o)(6)(i) grants civil service status to career 
interns who successfully complete their internships and who meet all 
other applicable requirements (i.e., qualifications, performance, and 
suitability). Several agencies asked for clarification concerning the 
appropriate coding for these conversions. We have not revised the 
regulations in response to this comment, but we updated Chapter 9 of 
OPM's Guide to Processing Personnel Actions, Table 9-G, and established 
the following set of codes for career intern conversions under rules 
61-64:
    Appointment Type: Career; Career Conditional.
    Nature of Action: 100, 500; 101, 501.
    Legal Authority: Reg. 315.712.
    Legal Authority Code: LYP.

Mandatory Placement Rights, Section 213.3202(o)(6)

    Section 213.3202(o)(6)(ii) grants mandatory placement rights to 
employees who accept a Career Intern appointment in the same agency and 
who fail to complete the Program for reasons unrelated to misconduct or 
suitability. Executive Order 13162 requires that the employee shall be 
placed in a career or career-conditional position in the current agency 
at no lower grade or pay than the one the employee left to accept the 
position under the FCIP.
    One agency asked if the position to which the employee is to be 
returned had to have the same promotion potential as the position the 
employee left. Mandatory placement rights were included in the 
Executive order to ensure that Federal employees could participate in 
this new program without having to fear losing their jobs if they could 
not successfully complete the internship. The Executive order ensures 
that agencies place those employees who did not complete the internship 
back into a position that does not cause the employees to lose their 
grades or pay. The Executive order, however, does not require the new 
job to have the same promotion potential as the job the employee left 
to accept a position under the FCIP.
    In a related matter, one agency suggested that the mandatory 
placement rights be discretionary. We did not adopt this suggestion 
because the Executive order makes this provision mandatory and not left 
to the discretion of agencies.
    One agency asked if pay retention was discretionary or mandatory 
for career or career-conditional employees appointed to the FCIP at a 
lower grade. Pay retention is mandatory. Section 536.104--coverage and 
applicability of pay retention--of this chapter applies to any employee 
whose rate of basic pay would otherwise be reduced, among other 
reasons, ``as a result of the placement of the employee in a formal 
employee developmental program generally utilized Governmentwide.'' The 
FCIP is listed as one of these programs.

Movement Between Career Intern Positions, New Section 213.3202(o)(8)

    Several agencies asked for clarification on employees moving 
between career intern positions. As a result, we are including 
regulatory language on the movement between career intern positions at 
section 213.3202(o)(8). A career intern may move between career intern 
positions without a break in service. Service under a career intern 
appointment counts toward the completion of a subsequent career intern 
appointment. Although the career intern is not required to begin a new 
2-year internship, the career intern is subject to other terms and 
conditions of the new appointment, including an agency's request for an 
extension. However, the total time spent under a career intern 
appointment may not exceed 3 years.

Federal Career Intern Program Agency Plans, Section 213.3202(o)(10)

    Several agencies asked that OPM clarify what was required in an 
agency's plan for using the FCIP. Section 213.3202(o)(10) establishes 
the requirement for agencies to develop FCIP plans within their 
agencies. An agency must decide what type of program it will develop 
and the specifics of that program must be in writing, including the 
covered positions and the procedures used to fill these positions in 
the excepted service. We have included language in that section to 
clarify agency responsibilities.

Other

    One agency commented that the FCIP does not provide sufficient 
flexibility because it requires agencies which use it to follow the 
provisions of part 302. OPM disagrees noting that by law, the 
application of veterans' preference is a requirement when filling 
positions in the excepted service. OPM promulgated part 302 for the 
sole purpose of ensuring that eligible veterans receive their 
preference when being considered for appointments in the excepted 
service. In addition to this assurance to our nation's veterans, FCIP 
contains several flexibilities such as: It does not require public 
notice, competitive service placement assistance programs do not apply 
(e.g., the Interagency Career Transition Assistance Plan), and 
individuals appointed as Career Interns are not subject to time-in-
grade restrictions while in the Program.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant impact 
on a substantial number of small entities (including small businesses, 
small organizational units and small governmental jurisdictions) 
because the regulations apply only to appointment procedures for 
certain employees in Federal agencies.

List of Subjects in 5 CFR Parts 213 and 315

    Government employees, Reporting and recordkeeping requirements.

U.S. Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, OPM is adopting the interim regulations amending 5 CFR 
parts 213 and 315 which were published on December 14, 2000, at 65 FR 
78078 as final regulations with the following changes:

PART 213--EXCEPTED SERVICE

0
1. The authority citation for part 213 continues to read as follows:

    Authority: 5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 
Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103; Sec. 
213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h) and 
8456; E.O. 12364; 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 
4301 et seq.; Pub. L. 05-339, 112 Stat. 3182-83; and E.O. 13162.


0
2. In Sec.  213.3202, paragraph (o) is revised to read as follows:


Sec.  213.3202  Entire executive civil service.

* * * * *
    (o) The Federal Career Intern Program. (1) Appointments. 
Appointments under the Federal Career Intern Program (FCIP) may not 
exceed 2 years, except as described in paragraph (o)(2) of this 
section. Initial appointments are made to a position at the grade GS-5, 
7, or 9 (and equivalent) or other trainee levels appropriate for the 
Program, unless otherwise approved by OPM. Agencies will use part 302 
of

[[Page 44221]]

this chapter when making appointments under this Program.
    (2) Extensions. (i) Agencies must request, in writing, OPM approval 
to establish or extend internships for up to 1 additional year beyond 
the authorized 2 years for additional training and/or developmental 
activities.
    (ii) Agencies may extend, without prior OPM approval, 2-year 
internships for up to an additional 120 days to cover rare or unusual 
circumstances, or situations where agencies have established criteria 
for approving extensions.
    (3) Qualifications. Candidates will be evaluated using OPM 
qualification standards or OPM-approved, agency-specific qualification 
standards.
    (4) Tenure Group. Career interns are in the excepted service Tenure 
Group II for purposes of Sec.  351.502 of this chapter. Expiration of 
the internship is not subject to part 351 of this chapter.
    (5) Promotions. During the internship period, career interns may 
receive promotions as determined by an agency's plan. This provision 
does not confer entitlement to promotion.
    (6) Conversion to Competitive Service. Except as provided in 
paragraph (o)(6)(ii) of this section, service as a career intern 
confers no rights to further Federal employment in either the 
competitive or excepted service upon the expiration of the internship 
period.
    (i) Competitive civil service status may be granted to career 
interns who successfully complete their internships and meet all 
qualification, suitability, and performance requirements. These 
noncompetitive conversions will be effective on the date the 2-year 
service requirement is met, or at the end of an agency or OPM-approved 
extension.
    (ii) An employee who held a career or career-conditional 
appointment in an agency immediately before entering the FCIP in the 
same agency, and who fails to complete the FCIP for reasons unrelated 
to misconduct or suitability, shall be placed in a career or career-
conditional position in the current agency at no lower grade or pay 
than the one the employee left to accept the position in the FCIP. For 
purposes of this paragraph, ``agency'' means an Executive agency as 
defined in 5 U.S.C. 105. An Executive department may treat each of its 
bureaus or components (first major subdivision that is separately 
organized and clearly distinguished from other bureaus or components in 
work function and operation) as a separate agency or as part of one 
agency, but must do so by agency directive in establishing the Program.
    (iii) Service under the FCIP counts toward career tenure in the 
competitive service, if the career intern is converted to a career-
conditional appointment under Sec.  315.712 of this chapter.
    (7) Terminations. As a condition of employment, the appointment of 
a career intern expires at the end of the 2-year internship period, 
plus any extension. The employing agency may, with no break in service, 
convert the intern to a career or career-conditional appointment in 
accordance with Sec.  315.712 of this chapter. If an employee is not 
converted to a career or career-conditional appointment, the career 
intern appointment terminates, unless the employee is specifically 
eligible for placement under paragraph (o)(6)(ii) of this section.
    (8) Movement between career intern positions. A career intern may 
move from one career intern position to another career intern position 
without a break in service. If the move involves different agencies, 
the career intern must separate from the current agency and be 
reappointed under a career intern appointment by the new employing 
agency. The career intern does not begin a new 2-year internship 
period; however, the career intern is subject to any other employment 
condition the new agency requires, including a possible extension of 
the internship period up to a maximum period of 1 year. The time 
previously served under a career intern appointment counts toward the 
completion of the 2-year period required for conversion.
    (9) Career Development. Agencies will provide the career interns 
with formal training and developmental opportunities to acquire the 
appropriate agency-identified competencies needed for conversion. These 
activities may include, but are not limited to, formal training 
classes, rotational or other job assignments, attendance at conferences 
and seminars, interagency assignments, or other activities approved by 
the agency.
    (10) Agency Responsibilities. Each agency will determine the 
appropriate use of the FCIP relating to recruitment needs in 
geographical areas, specific occupational series, and grades, pay bands 
or other pay levels, ensuring that programs are developed and 
implemented in accordance with the merit system principles. Each agency 
must describe in writing how it will use the FCIP, including, but not 
limited to, such aspects as:
    (i) Delegating the authority to develop FCIPs (e.g., department-
wide versus bureaus and agency components);
    (ii) Defining the roles and responsibilities of supervisors and 
other key officials in FCIP administration, such as human resources 
staff, budget and finance staff, career counselors, or mentors;
    (iii) Identifying the positions or occupations that will be covered 
under the FCIP;
    (iv) Developing procedures for accepting applications, and 
evaluating and selecting candidates according to part 302 of this 
chapter on employment in the excepted service and any other applicable 
requirements;
    (v) Designing, implementing, and documenting formal program(s) for 
the training and development of employees selected under the provisions 
of this Program, including the type and duration of assignments;
    (vi) Deciding how to inform the career interns of what will be 
expected during the internship, including developmental assignments and 
performance requirements; and
    (vii) Planning, coordinating, implementing, and monitoring program 
activities.

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
3. The authority citation for part 315 is revised to read as follows:

    Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR, 
1954-1958 Comp., p. 218, unless otherwise noted; and E.O. 13162; 
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. 1219, 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. 315.611 also issued under Section 511, 
Pub. L. 106-117, 113 STAT. 1575-76; 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.


0
4. In Sec.  315.201, paragraph (b)(1)(xix) is revised to read as 
follows:


Sec.  315.201  Service requirement for career tenure.

* * * * *
    (b) * * *
    (1) * * *
    (xix) Appointment as a career intern under Schedule B, Sec.  
213.3202(o) of this chapter, provided the employee's appointment is 
converted to career or career-conditional appointment under Sec.  
315.712.
* * * * *

0
5. Section 315.712 is revised to read as follows:
* * * * *

[[Page 44222]]

Sec.  315.712  Conversion based on service as a Federal Career Intern.

    (a) Agency authority. An agency may convert noncompetitively to 
career or career-conditional employment, a career intern who:
    (1) Has successfully completed a Federal Career Intern Program, 
under Sec.  213.3202(o) of this chapter, at the time of conversion; and
    (2) Meets all citizenship, suitability, and qualification 
requirements.
    (b) Tenure on conversion. An employee whose appointment is 
converted to career or career-conditional employment under paragraph 
(a) of this section becomes:
    (1) A career-conditional employee except as provided in paragraph 
(b)(2) of this section;
    (2) A career employee when he or she has completed the service 
requirement for career tenure or is excepted from it by Sec.  
315.201(c).
    (c) Acquisition of competitive status. An employee whose employment 
is converted to career or career-conditional employment under this 
section acquires competitive status on conversion.

[FR Doc. 05-15173 Filed 8-1-05; 8:45 am]
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