[Federal Register Volume 70, Number 156 (Monday, August 15, 2005)]
[Rules and Regulations]
[Pages 47711-47716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16092]



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  Federal Register / Vol. 70, No. 156 / Monday, August 15, 2005 / Rules 
and Regulations  

[[Page 47711]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 370

RIN 3206-AJ91


Information Technology Exchange Program

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to implement provisions contained in the E-Government Act 
of 2002. This law authorizes the temporary detail of employees in the 
field of information technology (IT) management from the Federal 
Government to private sector organizations. It also authorizes Federal 
agencies to accept private sector employees detailed under this 
program. This program is envisioned to promote the interchange of 
Federal and private sector workers to enhance skills and competencies.

DATES: Effective September 14, 2005.

FOR FURTHER INFORMATION CONTACT: Hakeem Basheerud-Deen at (202) 606-
1434 or by e-mail at [email protected]. Hakeem Basheerud-
Deen may also be contacted by TTY at (202) 418-3134, or by fax at (202) 
606-2329.

SUPPLEMENTARY INFORMATION: On January 15, 2004, OPM issued proposed 
regulations at 69 FR 2308-2310 to implement the Federal Information 
Technology Exchange Program (hereafter referred to as the Program), as 
authorized by the E-Government Act of 2002 (Act), Public Law 107-347, 
and requested comments by March 15, 2004. That part of the Act 
authorizes a Federal agency to detail an exceptional information 
technology employee to a private sector organization for purposes of 
training and development. It also gives Federal agencies the authority 
to accept comparable information technology employees detailed from the 
private sector. The Program is codified in a new chapter 37 in title 5, 
United States Code (U.S.C.), and this regulation adds a corresponding 
part 370, Information Technology Exchange Program, to title 5 of the 
Code of Federal Regulations (CFR) in accordance with 5 U.S.C. 3707.

Comments

    OPM received comments from 8 Federal agencies, 1 professional 
organization, 1 labor organization, and 22 individuals. Those comments 
are addressed below according to the corresponding sections of the 
regulations.

Purpose

    One agency commented the Program would be more beneficial if it 
required a reciprocal exchange of employees, i.e., a temporary exchange 
of a Federal employee with a private sector employee. OPM did not adopt 
this suggestion because requiring reciprocity would reduce agency 
flexibility in designing its Program. Under the final regulations, 
Federal agencies may detail their employees to the private sector with 
or without reciprocity.
    One agency suggested the phrase, ``to meet the personal interests 
of employees'' be deleted from the last sentence of paragraph (b) of 
section 370.101 because any approved details should meet the needs of 
the agency as well as the employee. We agree and have modified the 
regulations to state, ``Approved details must meet the strategic 
program goals of the agency. The benefits to the Federal agency and the 
private sector organization are the primary considerations in 
initiating details; not the desires or personal needs of an individual 
employee'' in section 370.101(b).
    One agency recommended the regulations provide more detail about 
the specific role of the Chief Information Officers (CIO) Council in 
administering the Program. We note the Act provides for assistance from 
the CIO Council, but we believe it is inappropriate to prescribe that 
role in regulations. Doing so would limit the flexibility of the CIO 
Council in providing assistance.
    One labor organization suggested the regulations require agencies 
to develop procedures for identifying which IT positions are designated 
for the Program through analyses or studies to determine the needs in 
those positions. We are not adopting this suggestion because the Act 
specifically refers to employees and not positions. The Program is 
intended to enhance the skills and competencies of an agency's IT 
employees. The regulations require agencies to establish estimated 
numbers of candidates needed to address IT workforce needs within the 
agency in accordance with section 370.109(b), and employee selection 
procedures in accordance with section 370.109(c).
    A labor organization noted the proposed regulations fail to discuss 
the impact of the Program on Government employees who are not detailed. 
The regulations do not discuss this because the Program's impact on 
employees not detailed is beyond the scope of these regulations but 
falls under the agency's overall responsibility to manage its 
workforce.
    Three agencies, one labor organization, and one individual 
commented the regulations should address performance measurement, 
feedback, and performance appraisals for detailees. We do not agree 
this is necessary because these areas are covered already under 5 CFR 
part 430, section 430.205(b), Agency Performance Appraisal Programs, 
which states, in part, ``an agency program shall establish criteria and 
procedures to address employee performance for employees who are on 
detail * * *.''
    Two individuals suggested the Program be used for inter-agency 
exchanges in addition to private sector exchanges. OPM did not adopt 
this suggestion because inter-agency exchanges are not addressed in the 
Act.

Definitions

    One agency stated OPM did not define ``private sector 
organization'' and asked if private sector organizations include 
academic institutions, non-profit organizations, and organizations 
covered by the Intergovernmental Personnel Act. OPM agrees that 
clarification is needed. We have added a definition of ``private sector 
organization'' as a profit-making business entity registered in the 
Central Contractor Registration (CCR) Database (http://www.ccr.gov). 
The CCR is an accepted standard that ensures private sector 
organizations meet established

[[Page 47712]]

requirements to conduct business with the Government. Details to non-
profit and academic organizations are already covered under the 
Intergovernmental Personnel Act Program and are therefore not 
considered private sector organizations for the purposes of this 
program.
    Two agencies, one labor organization, and one individual 
recommended the requirement in section 370.103 that a detailee be an 
``exceptional employee'' is subjective and should be clearly defined. 
We agree and have added a definition of ``exceptional employee'' to 
mean ``an employee who is rated at the highest levels of the applicable 
performance appraisal system or, in the case of an employee under an 
appraisal system that does not have a summary rating level above `fully 
successful' or equivalent, is rated at the highest summary level used 
by the performance appraisal system and demonstrates sustained quality 
performance significantly above that expected in the type of position 
involved, as determined under performance related criteria established 
by the agency.''
    In order to ensure consistency across Government, OPM has clarified 
the definition of information technology management to mean ``the 
planning, organizing, staffing, directing, integrating, or controlling 
of information technology as defined by Office of Management and Budget 
Circular A-130.

Eligibility

    Two agencies and one individual requested employees in grades below 
GS-11 be allowed to participate. We are not implementing this request 
because the Act established the GS-11 level (or equivalent) as the 
minimum eligible grade.
    One agency suggested the eligibility criteria include a requirement 
that an employee work in his or her position for a minimum of 1 year 
prior to participation in the Program to ensure the employee is well 
grounded in the organization before being allowed to represent the 
organization on a detail. We do not agree with this suggestion for 
Governmentwide implementation because such a requirement would overly 
restrict the ability of agencies to select employees for detail. 
However, individual agencies may impose such a requirement in their 
agency plan.
    Two agencies commented section 370.103(a)(3) may imply a detail is 
a reward or career-enhancing detail and, upon returning to the agency, 
may result in advancement or promotion. These agencies suggested we add 
language to indicate an employee's eligibility for the Program is not 
limited to the expectation of assuming increased responsibilities of IT 
in the future or that advancement or promotion will be a result of the 
detail. OPM disagrees the proposed language implies a detail is a 
reward or necessarily career-enhancing. In addition, we are not 
adopting this suggestion because the Act specifically states that 
individuals eligible to be detailed under this part are expected to 
assume increased responsibilities in IT management.
    One agency recommended the final regulations be amended to clarify 
whether non-career Senior Executive Service (SES) members are eligible 
to serve on a detail. We agree clarification is needed concerning SES 
members and have amended the language in section 370.103 to state 
``only career members of the SES are eligible to be detailed under this 
part.'' We have excluded non-career SES employees because the Act 
stipulates eligible employees must be serving under a career or career-
conditional appointment.
    An individual questioned the appropriateness of allowing employees 
who are in specifically designated development programs, such as the 
Presidential Management Fellows Program, the Federal Career Intern 
Program, or the Student Career Experience Program, to participate. We 
share this concern and have excluded employees in specifically 
designated development programs by limiting the eligibility of excepted 
service employees in section 370.103(b) to those individuals on 
permanent appointments. Our rationale is we believe it is appropriate 
for these individuals to gain the full value of their participation in 
these developmental programs, which oftentimes is their initial Federal 
appointment, prior to participation in the IT Exchange Program.
    A labor organization commented the regulations do not require 
private sector employers to send top performers into the Program, 
thereby creating a disparity relative to Federal employers, who are 
required to do so. OPM disagrees, noting section 370.103(a)(2) states 
to be eligible for a detail under this part, an individual must be 
considered an exceptional employee by the individual's current 
employer. This applies to both Federal and private sector employers.
    One agency suggested the regulations permit participation by 
private sector candidates from companies not based in the U.S. OPM did 
not fully adopt this suggestion; however, we clarified this section by 
adding paragraph (c) to section 370.103 which states, ``To be eligible 
to participate in the Information Technology Exchange Program, a 
private sector organization must be registered in the Central 
Contractor Registration Database located at http://www.ccr.gov, or fall 
within one of the exceptions specified in section 4.1102 of the Federal 
Acquisition Regulation.'' This Governmentwide requirement pertains to 
both U.S. and foreign private sector organizations seeking to conduct 
business with the Government. As previously noted, the CCR is an 
accepted standard that ensures private sector organizations meet 
established requirements to conduct business with the Government. In 
addition, as a necessary measure against potential security risks we 
have amended section 370.103 to require private sector individuals 
detailed under this part to meet citizenship requirements for Federal 
employment. Even though these individuals will be on detail, they will 
be performing work similar to, and along side, Federal employees 
(oftentimes in secure IT environments) who are subject to these 
provisions.

Written Agreements

    One individual commented employees detailed under this Program may 
have difficulty returning to their previous positions and Federal 
agencies may have difficulty reincorporating these persons back into 
their respective agencies. OPM believes the regulations, as proposed, 
adequately address any such concerns. The regulations address these 
situations in two separate sections: Section 370.105, Written 
agreements, generally requires a Federal employee to return to his or 
her employing agency upon completion of the detail for a period of time 
equal to the length of that detail; and section 370.109, Agency plans, 
requires agency plans to include return rights and continuing service 
requirements for Federal employees returning from details.
    One agency and one labor organization recommended the written 
agreement describe the duties of the detailed employee and/or the 
developmental objectives of the assignment (e.g., projects, programs, 
systems). We agree, and have modified section 370.105 to require a 
description of the duties to be performed, a specification of the 
duration of the detail and the terms under which extensions to the 
detail may be granted, and individual development plans describing the 
core IT and other competencies the detailee is expected to acquire. 
However, the agency has the authority and flexibility to require 
additional information in the written

[[Page 47713]]

agreements and/or tailor agreements to the detail. In addition, we have 
added language to section 370.102, Definitions, that defines core IT 
competencies as those competencies identified by the Federal CIO 
Council. These competencies serve as a baseline for Federal agencies in 
meeting the Clinger-Cohen Act's requirement to determine the training 
and development needs of the Federal IT workforce.
    One individual suggested the service agreement be pro-rated based 
on the employee's grade (i.e., employees in higher grades have longer 
service commitments than employees in lower grades). OPM is not 
adopting this suggestion because the statutory requirement, as stated 
in 5 U.S.C. 3702, specifies the service requirements which cannot be 
changed by regulation.

Terms and Conditions

    A labor organization expressed concerns about the protection of 
employees' rights when detailed to the private sector. This 
organization also stated there is an accountability gap between the 
agency and private sector organization if there is no requirement for 
an agreement between the agency and private sector organization. OPM 
notes section 370.106 states Federal employees will lose none of their 
rights while on detail. However, we agree there must be accountability 
between all parties, and have added language to section 370.105 Written 
Agreements which states, ``The written agreement must be a three-party 
agreement between the Federal agency (agency head or designee), the 
individual (private or Federal), and the private sector organization.''
    Three agencies, one professional organization, and several 
individuals recommended OPM clarify how, and by whom, costs associated 
with this Program will be paid. OPM notes section 370.105(e) states the 
responsibilities and obligations, including as to costs, of all parties 
to a detail must be addressed in the written agreement. OPM will 
provide a sample written agreement and a set of frequently asked 
questions and answers guidance that will be posted on our Web site at 
http://www.opm.gov.
    One agency asked if procedures for getting into the Program are 
negotiable with the union and, if so, how that affects a private sector 
organization that has no union.
    Additionally, they suggested OPM address bargaining unit employees 
in the final regulations. Management selection of employees for this 
Program is not negotiable. However, selection procedures, to the extent 
consistent with applicable laws and Governmentwide rules and 
regulations, may be negotiable. Bargaining unit employees detailed 
under this Program are not part of the bargaining unit while on detail. 
OPM does not agree there is a need to address the impact of this 
Program on bargaining unit employees in the final regulations because 
the rules for bargaining unit employees detailed under this Program are 
not different from other details.
    Two agencies recommended OPM clarify whether Federal employees who 
serve with private sector organizations do so without loss of Federal 
equal employment opportunity (EEO) rights and private sector 
individuals retain their EEO protections while on detail to the Federal 
Government. OPM believes it would be inappropriate to address these 
issues in regulation because EEO rights are conferred by the relevant 
EEO statutes and regulations.
    Two agencies requested the final regulations include general 
guidelines outlining reasons for which these details may be terminated 
by the Federal agency, the private sector organization, or the 
employee. The Act includes such guidelines and we have added section 
370.106(e) which states, ``Details may be terminated by the agency 
(agency head or designee) or private sector organization for any reason 
at any time.''
    One agency suggested OPM include a clause precluding a private 
sector company from hiring a detailed Federal employee for a period of 
1 year following separation from Federal employment. The agency stated 
such a clause would block private sector companies that may be able to 
offer higher salaries and other recruitment benefits from hiring 
Federal employees without the costs of advertising, interviewing, and 
obtaining security clearances. We are not adopting this suggestion 
because the Act does not give OPM the authority to preclude private 
sector organizations from hiring Federal employees. However, post-
employment restrictions for certain Federal employees as well as 
restrictions for Federal employees seeking other employment exist in 
current statutes. For instance, post-Federal employment restrictions 
are in 18 U.S.C. 207; the prohibition on negotiating with certain 
persons for post-Federal employment while still a Federal employee is 
in 18 U.S.C. 208. In addition, section 370.105(d) requires Federal 
employees to return to their employing agencies upon completion of the 
detail.
    One labor organization stated its opposition to the absence of 
regulatory language governing the behavior of private sector employers 
participating in this Program. OPM disagrees further clarification is 
necessary. Section 370.105 Written Agreements requires a three-part 
agreement which includes guidelines for private sector employer 
behavior and expectations as it relates to the detail. Agencies may add 
to the guidelines addressed in this section as appropriate.
    Several agencies, as well as individuals, questioned the 
applicability of the legal and ethics provisions in the regulations to 
Federal and private sector employees. OPM notes the regulations state 
Federal employees remain subject to all legal and ethics provisions 
identified in the Act, and private sector employees detailed to Federal 
agencies under this part are considered Federal employees for the 
purposes of the legal and ethics provisions cited. Additionally, OPM 
will address these issues further in Questions and Answers guidance 
that will be posted on our Web site at http://www.opm.gov.

Small Business Concerns

    One agency suggested we clarify whether reporting requirements in 
section 370.107 are based on the calendar or fiscal year. We agree that 
clarification is needed under the small business concern reporting 
requirement. Although the reporting requirement was referenced in the 
proposed regulation, for the convenience of the reader we have added 
section 370.107(c) which states, ``For the purposes of this section, 
`year' refers to the 12-month period beginning on the date of the 
enactment of the Act, December 17, 2002, and each succeeding 12-month 
period in which any assignments are made.'' Additionally, we have 
clarified agencies' semiannual reporting requirements to OPM under 
section 370.108 Reporting Requirements.

Agency Plans

    One agency commented OPM requires agencies to have plans in place 
before details may be approved although the Act does not require this. 
This agency stated there may be situations where agencies would want to 
begin details before formal plans are developed. OPM does not share 
this view, noting agency plans and written implementation standards are 
critical to the success and evaluation of this Program. Agency plans 
must be in place before an agency may engage in a detail under this 
part. OPM has exercised similar authority when implementing other 
programs such as the Student Loan Repayment and Academic Degree 
Programs.

[[Page 47714]]

    A professional organization recommended OPM add a provision to 
encourage agencies to act expeditiously in drafting and approving a 
plan. This organization suggested OPM consider requiring agencies to 
complete their agency plans within a specific time frame, such as 120 
days or 180 days. OPM is not adopting this recommendation because use 
of the Program is discretionary and plans are only needed if the agency 
chooses to establish a Program under the Act.
    One agency suggested section 370.109(b) be re-phrased to read, 
``The number of IT Exchange Candidates proposed for the agency,'' 
stating the phrase used in the proposed regulations could be construed 
to mean a number equal to an agency's entire IT staff. Another Federal 
agency suggested the requirement be eliminated from agencies' plans 
because IT requirements are constantly changing and plans of this 
nature are not frequently revised and could become outdated. OPM does 
not share this interpretation or view; agencies should craft and modify 
their plans based upon a realistic analysis of their IT workforce 
needs. However, to clarify the intent behind this section we have 
changed the language to read, ``Estimated number of candidates needed, 
both private sector and Federal employees, to address IT workforce 
needs within the agency.''
    A labor organization commented on the absence of strategic goals 
for the Program stating without specific training goals, it will be 
difficult to determine if the Program has served its purpose. OPM 
disagrees additional language is needed in the regulation, and notes 
section 370.101(b) states the Governmentwide strategic goal for the 
Program. In addition, agency plans will address strategic goals for the 
Program to support the Governmentwide goal as applicable to individual 
agencies.
    One agency requested we require agencies to compete detail 
opportunities using merit promotion procedures because details are 
considered to be career-enhancing. The agency also recommended we 
explain the types of recruitment methods to be used for attracting 
people to the Program. While the Act does not require details to be 
competed, nor is there a guarantee detailees would gain a competitive 
advantage in future merit promotion, we have modified section 
370.109(c) to include provisions which require announcement, 
nomination, and review of nominations by appropriate selecting 
officials. Agencies will not be required to publish a formal vacancy 
announcement; something less formal is allowable. Agencies must 
publicize these opportunities; but how they do so is left up to the 
agencies. The modified language is flexible enough to allow agencies to 
establish their own criteria for announcing details.

Executive Order 12866, Regulatory Review

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

Regulatory Flexibility Act

    I certify 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.
Linda M. Springer,
Director.

0
Accordingly, OPM is adding 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 Details to small business concerns.
370.108 Reporting requirements.
370.109 Agency plans.

    Authority: Pub. L. 107-347, 116 Stat. 2923-2931 (5 U.S.C. 3707).


Sec.  370.101  Purpose.

    (a) The purpose of this part is to implement sections 209(b)(6) and 
(c) of the E-Government Act of 2002 (Pub. L. 107-347), which authorize 
the Office of Personnel Management to establish an Information 
Technology Exchange Program. This statute authorizes the temporary 
detail of information technology employees between the Federal 
Government and private sector organizations. The statute also gives 
Federal agencies the authority to accept private sector information 
technology employees detailed under the Information Technology Exchange 
Program.
    (b) 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 
circumvent personnel ceilings, or as a substitute for other more 
appropriate personnel decisions or actions. Approved details must meet 
the strategic program goals of the agency. The benefits to the Federal 
agency and the private sector organization are the primary 
considerations in initiating details; not the desires or personal needs 
of an individual employee.


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 Government Accountability Office.
    Core Competencies are those IT competencies identified by the 
Federal Chief Information Officer (CIO) Council as a baseline for use 
by Federal agencies in complying with the Clinger-Cohen Act, Public Law 
104-106, to determine the training and development needs of the Federal 
IT workforce.
    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 a private sector organization 
employee to an agency without a change of position from the private 
sector organization that employs the individual (5 U.S.C. 3701(2)(B)).
    Exceptional employee means an employee who is rated at the highest 
levels of the applicable performance appraisal system or, in the case 
of an employee under an appraisal system that does not have a summary 
rating level above ``fully successful'' or equivalent, is rated at the 
highest summary level used by the performance appraisal system and 
demonstrates sustained quality performance significantly above that 
expected in the type of position involved, as determined under 
performance-related criteria established by the agency.
    Information technology (IT) management means the planning, 
organizing, staffing, directing, integrating, or controlling of 
information technology as defined by Office of Management and Budget 
Circular A-130 which states, the term ``information technology'' means 
any equipment or interconnected system or subsystem of equipment, that 
is used in the automatic acquisition, storage, manipulation,

[[Page 47715]]

management, movement, control, display, switching, interchange, 
transmission, or reception of data or information by an executive 
agency. For purposes of the preceding sentence, equipment is used by an 
executive agency if the equipment is used by the executive agency 
directly or is used by a contractor under a contract with the executive 
agency which requires the use of such equipment, or requires the use, 
to a significant extent, of such equipment in the performance of a 
service or the furnishing of a product. The term ``information 
technology'' includes computers, ancillary equipment, software, 
firmware and similar procedures, services (including support services), 
and related resources. The term ``information technology'' does not 
include any equipment that is acquired by a Federal contractor 
incidental to a Federal contract. The term ``information technology'' 
does not include national security systems as defined in the Clinger-
Cohen Act of 1996 (40 U.S.C. 1452).
    OPM means the Office of Personnel Management.
    Private sector organization means a profit-making business entity 
that is registered in the Central Contractor Registration Database 
(http://www.ccr.gov) as required for the conduct of business with the 
Government.
    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, codified at 13 CFR 121. Federal agencies can find more 
information through the ``Frequently Asked Questions'' page on the 
SBA's Web site at http://www.sba.gov, which addresses small business 
size standards.


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 employee by the individual's 
current employer; and
    (3) Be expected by the individual's current employer to assume 
increased information technology management responsibilities 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 in a position at the GS-11 level or above 
(or equivalent), under a career or career-conditional appointment or an 
appointment of equivalent tenure in the excepted service. For purposes 
of this part, positions of equivalent tenure in the excepted service 
are limited to permanent appointments. In addition, only career members 
of the Senior Executive Service are eligible to be detailed under this 
part.
    (c) To be eligible to participate in the Information Technology 
Exchange Program, a private sector organization must be registered in 
the Central Contractor Registration Database located at http://www.ccr.gov, except as permitted by the Federal Acquisition Regulation 
(48 CFR 4.1102).
    (d) To be eligible for a detail to a Federal agency under this 
part, a private sector employee, in addition to meeting the 
requirements of paragraph (a) of this section, must meet citizenship 
requirements for Federal employment in accordance with 5 CFR 7.3 and 
338.101, as well as any other statutory limitation.


Sec.  370.104  Length of details.

    (a) Details may be for a period of between 3 months and 1 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) For the life of the ITEP, 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 request of the agency head, or his or her designee.


Sec.  370.105  Written agreements.

    Before the detail begins, the agency and private sector 
organization must enter into a written agreement with the individual(s) 
detailed. The written agreement must be a three-party agreement between 
the Federal agency (agency head or designee), the individual (private 
sector or Federal), and the private sector organization. The written 
agreement must include, but is not limited to, the following elements:
    (a) The duties to be performed, duration, and terms under which 
extensions to the detail may be granted;
    (b) An individual development plan describing the core IT 
competencies and technical skills that the detailee will be expected to 
enhance or acquire;
    (c) Whether the individual will be supervised by a Federal or 
private sector employee; and a description of the supervision;
    (d) The requirement for Federal employees to return to their 
employing agency upon completion of the detail for a period equal to 
the length of the detail including any extensions; and
    (e) 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 if he 
or she had 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 Federal agency for purposes 
of:
    (i) Title 5, United States Code, chapter 73 (Suitability, Security, 
and Conduct);
    (ii) Title 18, United States Code, section 201 (Bribery of Public 
Officials and Witnesses), section 203 (Compensation to Members of 
Congress, Officers, and Others in Matters Affecting the Government), 
section 205 (Activities of Officers and Employees in Claims Against and 
Other Matters Affecting the Government), section 207 (Restrictions on 
Former Officers, Employees, and Elected Officials of the Executive and 
Legislative Branches), section 208 (Acts Affecting a Personal Financial 
Interest), section 209 (Salary of Government Officials and Employees 
Payable Only by the United States), section 603 (Making Political 
Contributions), section 606 (Intimidation to Secure Political 
Contributions), section 607 (Place of Solicitation), section 643 
(Accounting Generally for Public Money), section 654 (Officer or 
Employee of United States Converting Property of Another), section 1905 
(Disclosure of Confidential Information Generally), and section 1913 
(Lobbying with Appropriated Moneys);
    (iii) Title 31, United States Code, section 1343 (Buying and 
Leasing Passenger Motor Vehicles and Aircraft),

[[Page 47716]]

section 1344 (Passenger Carrier Use), and section 1349(b), (Adverse 
Personnel Actions);
    (iv) The Federal Tort Claims Act and any other Federal tort 
liability statute;
    (v) The Ethics in Government Act of 1978;
    (vi) Internal Revenue Code of 1986, section 1043 (Sale of Property 
to Comply with Conflict-of-Interest Requirements); and
    (vii) Title 41, United States Code, section 423 (Prohibition on 
Former Official's Acceptance of Compensation From Contractor).
    (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 detailed;
    (4) Is subject to such regulations as the President may prescribe; 
and
    (5) Is covered by 5 U.S.C. chapter 81, Compensation for Work 
Injuries, as provided in 5 U.S.C. 3704(c).
    (c) Individuals detailed under this part may be supervised either 
by 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 an agency may be supervised by a Federal manager.
    (d) As provided in 5 U.S.C. 3704(d), a private sector organization 
may not charge the Federal Government, as direct or indirect costs 
under a Federal contract, for the costs of pay or benefits paid by that 
private sector organization to an employee detailed to an agency under 
this part.
    (e) Details may be terminated by the agency (agency head or 
designee) or private sector organization concerned for any reason at 
any time.


Sec.  370.107  Details to small business concerns.

    (a) The head of each agency must take such actions as may be 
necessary to ensure that, of the details made to private sector 
organizations in each calendar 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 details to small business concerns needed 
to meet the requirements of this section. For example, if an agency 
detailed 11 individuals to private sector organizations during a given 
year, to meet the 20 percent requirement, that agency must have made at 
least 3 (rounded up from 2.2) of these details to small business 
concerns.
    (c) For purposes of this section, ``year'' refers to the 12-month 
period beginning on date of the enactment of the Act, December 17, 
2002, and each succeeding 12-month period in which any assignments are 
made. Assignments ``made'' in a year are those commencing in such year, 
in accordance with 5 U.S.C. 3703(e)(2).
    (d) Agencies that 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 that makes fewer than five details to private sector 
organizations in any year is not subject to this section.


Sec.  370.108  Reporting requirements.

    (a) Agencies using this part must prepare and submit to OPM 
semiannual reports in accordance with 5 U.S.C. 3706 which must include:
    (1) The total number of individuals detailed to, and the total 
number of individuals detailed from, the agency during the report 
period;
    (2) A brief description of each detail reported under paragraph 
(a)(1) of this section including:
    (i) The name of the detailed individual, and the private sector 
organization and the agency (including the specific bureau or other 
agency component) to or from which such individual was detailed;
    (ii) The respective positions to and from which the individual was 
detailed, including the duties and responsibilities and the pay grade 
or level associated with each; and
    (iii) The duration and objectives of the individual's detail; and
    (3) Such other information as OPM considers appropriate.
    (b) Reports are due to OPM no later than April 7 and October 7 of 
each year for the immediately preceding 6-month periods ending March 31 
and September 30, respectively.
    (c) Agencies that 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) Designation of the agency officials with authority to review 
and approve details;
    (b) Estimated number of candidates needed, both private sector and 
Federal employees, to address IT workforce needs within the agency;
    (c) Criteria for the selection of agency employees for a detail 
under this part. At a minimum, each agency must:
    (1) Announce the detail, including eligibility requirements, to all 
eligible employees;
    (2) Provide for employee nomination by their organization or self-
nomination, to include endorsement by their respective supervisor;
    (3) Forward nominations to designated agency reviewing and 
approving official for final selection.
    (4) Consider:
    (i) The extent to which the employee's current competencies and 
skills are being utilized in the agency;
    (ii) The employee's capability to improve, enhance, or learn skills 
and acquire competencies needed in the agency; and
    (iii) The benefits to the agency which would result from selecting 
the employee for detail.
    (d) Return rights and continuing service requirements for Federal 
employees returning from a detail; and
    (e) Documentation and recordkeeping requirements sufficient to 
allow reconstruction of each action taken under this part to meet 
agency reporting requirements under Sec.  370.108(a) and (b).

[FR Doc. 05-16092 Filed 8-12-05; 8:45 am]
BILLING CODE 6325-39-P