[Federal Register Volume 73, Number 212 (Friday, October 31, 2008)]
[Rules and Regulations]
[Pages 64859-64861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26009]



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  Federal Register / Vol. 73, No. 212 / Friday, October 31, 2008 / 
Rules and Regulations  

[[Page 64859]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 352

RIN 3206-AI19


Reemployment Rights

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final 
regulations on the detail and transfer of Federal employees to 
international organizations. The final regulation eliminates the 
``equalization allowance,'' modernizes regulatory language, and 
clarifies that the Department of State is the delegated authority to 
designate any organization as an international organization.

DATES: This rule is effective on December 1, 2008.

FOR FURTHER INFORMATION CONTACT: Jacquelyn A. Carrington at (202) 606-
0960, FAX at (202) 606-2329, TDD at (202) 418-3134, or e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On October 2, 2007, OPM issued proposed 
regulations in the Federal Register at 72 FR 56019 to make part 352, 
subpart C, of title 5, Code of Federal Regulations (CFR), consistent 
with section 3582(b) of title 5, United States Code (U.S.C.). We 
requested comments on the proposed rule to be submitted by December 3, 
2007.
    Section 2504 of Public Law 105-277 amended 5 U.S.C. 3582 by 
eliminating employee entitlement to be paid an ``equalization 
allowance'' upon return to Federal service from a transfer to an 
international organization. The equalization allowance was a payment 
equal to the difference between the pay, allowances, post differential, 
and other monetary benefits paid by the international organization and 
the pay, allowances, post differential, and other monetary benefits 
that would have been paid by the employing agency had the employee been 
detailed to the international organization. Because of the amendment, 
an employee who transferred, with the consent of the employing agency, 
to an international organization on or after October 21, 1998, is 
entitled, upon reemployment, to only the rate of basic pay the employee 
would have received had the employee remained in the civil service. We 
proposed removing section 352.310 to reflect this change.
    We also proposed revising section 352.309 to make clear agency 
responsibilities and employee entitlements, and explain action required 
to retain an employee's coverage under the retirement, health benefits, 
and group life insurance system when the employee transfers to an 
international organization. No other substantive changes were proposed 
in this section.
    Employees returning from detail or transfer to an international 
organization are not entitled to back pay for the time they were absent 
from the employing agency. However, such employees are entitled to any 
promotions, position upgrades, or other salary increases they would 
have received, but for their absence, retroactive to the date such 
actions otherwise would have taken effect.

Comments

    The Office of Personnel Management received comments from three 
agencies and one individual.
    One agency requested that we replace the phrase ``period of 
consent'' used in section 352.308(d)(2), with the word ``period'' and 
clarify the phrase ``all appropriate civil service employment 
purposes'' used in section 352.311(d). We are adopting the agency's 
recommendation that the phrase ``period of consent'' should be replaced 
with the word ``period'', and have amended section 352.311(d) 
accordingly. The phrase ``all appropriate civil service employment 
purposes'' includes time in grade, tenure, service computation dates, 
within grade increases, etc.
    Another agency suggested that OPM clarify whether individuals 
serving on term appointments are eligible for details or transfers to 
international organizations under this part. The law does not exclude 
individuals serving on term appointments from coverage. Therefore, 
individuals serving on term appointments are included under this part. 
However, 5 U.S.C. 3582 excludes individuals serving on temporary 
appointments from coverage.
    An individual asked OPM to revise section 352.311(b) to include the 
equalization allowance. OPM cannot adopt this request because Congress 
repealed this provision in Public Law 105-277.
    One agency recommended OPM amend section 352.314(b) by inserting 
``upon return'' at the end of the sentence. We are adopting the 
agency's recommendation that section 352.314(b) should end with the 
word ``return'' and have amended that section accordingly.
    OPM received comments from another Federal agency which went beyond 
the scope of the proposed amendments to the regulation. However, OPM 
agrees that further information may be helpful to agencies; therefore, 
we will address these comments in supplementary guidance. These 
comments are as follows:
     How should an agency determine the pay of an employee if 
the agency has a pay-for-performance system where pay is linked 
directly to performance?
     How does an agency make pay actions effective as if the 
employee were not absent?
     How does an agency evaluate an employee detailed or 
transferred to an international organization (IO) if the IO does not 
have a systematic way of evaluating the individual's performance?
     How does an agency determine effective dates for career-
ladder promotions for individuals detailed or transferred to an 
international organization?
     When should position upgrades occur, and should an 
employee be downgraded upon return if the position the employee held 
was downgraded in the employee's absence?

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because the 
regulations pertain only to Federal employees and agencies.

[[Page 64860]]

Paperwork Reduction Act

    The information collection requirements contained in this final 
rule are currently approved by OMB under 3206-AI19. This final 
regulation does not modify this approved collection.

Executive Order 12866, Regulatory Review

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

List of Subjects in 5 CFR Part 352

    Administrative practice and procedure, Government employees, 
Reemployment rights.

Office of Personnel Management.
Michael W. Hager,
Acting Director.

0
Accordingly, OPM amends 5 CFR part 352 as follows:

PART 352--REEMPLOYMENT RIGHTS

Subpart C--Detail and Transfer of Federal Employees to 
International Organizations

0
1. The authority citation for part 352, subpart C, continues to read:

    Authority: 5 U.S.C. 3584, E.O. 11552, 3 CFR, 1966-1970 Comp., p. 
954; Section 352.313 also issued under 5 U.S.C. 7701, et seq.


Sec.  352.303  [Removed]

0
2. Remove and reserve Sec.  352.303.
0
3. Revise Sec.  352.304 to read as follows:


Sec.  352.304  International organizations covered.

    (a) An agency may detail or transfer an employee under this 
subpart, without prior approval, to an organization which the 
Department of State has designated as an international organization.
    (b) An agency may detail or transfer an employee under this subpart 
to any other public international organization or international 
organization preparatory commission only when the Department of State 
agrees that the organization concerned could be designated as an 
international organization covered by sections 3343 and 3581 of title 
5, United States Code.
0
4. Revise Sec.  352.305 to read as follows:


Sec.  352.305  Eligibility for detail.

    An employee is eligible for detail to an international organization 
with the rights provided for in, and in accordance with, section 3343 
of title 5, United States Code, and this subpart, except the following:
    (a) A Presidential appointee (other than a postmaster, Foreign 
Service officer or a Foreign Service information officer), regardless 
of whether the appointment was made by and with the advice and consent 
of the Senate.
    (b) A person serving in the executive branch in a confidential or 
policy-determining position excepted from the competitive service under 
Schedule C of part 213 of this chapter.
    (c) A person serving under a non-career, limited emergency, or 
limited term appointment in the Senior Executive Service (SES).
    (d) A person serving under a temporary appointment.
0
5. Revise Sec.  352.306 to read as follows:


Sec.  352.306  Length of details.

    The total length of a detail or several details combined must not 
exceed 5 consecutive years, except that when the Secretary of State, on 
the recommendation of the head of the agency, determines it to be in 
the national interest, the 5 years allowed for details may be extended 
for up to an additional 3 years. A detail or combination of details and 
transfers must not exceed 8 years in the aggregate throughout an 
employee's Federal career.
0
6. Revise Sec.  352.308(d) to read as follows:


Sec.  352.308  Effecting employment by transfer.

* * * * *
    (d) Recording requirement. The agency must furnish the employee 
with a leave statement, showing his or her annual and sick leave 
balances at the time of transfer. In addition, the notification of 
personnel action effecting the employee's separation for transfer must 
include:
    (1) Identification of the international organization to which the 
employee is transferring,
    (2) A clear statement of the period during which the employee has 
reemployment rights in the agency under section 3582 of title 5, United 
States Code, and this subpart, and
    (3) The legal and regulatory conditions for reemployment.
0
7. Revise Sec.  352.309 to read as follows:


Sec.  352.309  Retirement, health benefits, and group life insurance.

    (a) Agency action. An employee who is transferred to an 
international organization with the consent of the employing agency is 
entitled to retain coverage for retirement, health benefits, and group 
life insurance purposes if he or she so chooses. The period during 
which coverage, rights, and benefits are retained under this paragraph, 
during employment with the international organization, is deemed 
employment by the United States. At the time an employing Federal 
agency consents to the transfer of an employee, the agency must advise 
the employee in writing of the employee's right to continue retirement, 
health benefits, and group life insurance coverage, as applicable, for 
the duration of the assignment or transfer. The notice must explain the 
conditions for continued coverage and the employee's obligations and 
responsibilities with regard to continued coverage. The notice must 
also explain that, if the employee elects to retain coverage, the 
agency will continue to make the agency contributions to the funds, and 
the employee's coverage will continue as long as employee payments are 
currently deposited in the respective funds.
    (b) Employee action. The employee must acknowledge, in writing, 
receipt of the notice and state whether or not he or she wishes to 
retain coverage under the retirement, health benefits, and group life 
insurance systems or any of them by continuing the required employee 
payments. The employee must make a written election to retain benefits, 
as applicable, and make arrangements for the required employee 
payments. An employee who transfers to an international organization is 
not eligible to participate in the Thrift Savings Plan (TSP) while 
employed by the international organization even if he or she elects to 
retain Federal retirement coverage. However, upon reemployment, an 
employee who elected to retain Federal retirement coverage while 
employed by the international organization and has made all deposits 
required for such coverage may make contributions to the TSP which he 
or she missed as a result of the service with an international 
organization, and receive make-up agency contributions and lost 
earnings on the agency contributions, as provided under Sec.  
352.311(e).
    (c) Agency responsibility. For retirement and group life insurance 
purposes, the employing agency is responsible for determining the 
applicable rate of pay in accordance with the provisions of section 
3583 of title 5, United States Code. The agency is also responsible for 
collecting, accounting for, and depositing in the respective funds all 
retirement, health benefits, and group life insurance employee payments 
required to be made for the purpose of protecting the rights of the 
employee so transferred; and for accounting for and depositing in the 
respective funds all agency contributions. The agency must furnish

[[Page 64861]]

the employee with specific information as to how, when, and where the 
payments are to be submitted.
    (d) Coverage. Employee payments are considered to be currently 
deposited if received by the agency before, during, or within 3 months 
after the end of the pay period covered by the deposit. If the 
contributions are not currently deposited, coverage terminates on the 
last day of the pay period for which the required contributions were 
currently deposited, subject to a 31-day extension of group life 
insurance and health benefits coverage as provided in parts 870 and 890 
of this chapter and to the conversion benefits provided in parts 870 
and 890 of this chapter. Coverage so terminated may not be re-
established before the employee actually enters on duty, on the first 
day in a pay status in an agency. However, terminated retirement, 
health benefits, and group life insurance coverage must be reinstated 
retroactively when, in the judgment of OPM, the failure to make the 
required current deposit was due to circumstances beyond the employee's 
control and the required payments were deposited at the first 
opportunity. Coverage under a system other than the Civil Service 
Retirement System must be reinstated retroactively if the agency which 
administers the retirement system determines that the failure to make 
the required current deposit was due to circumstances beyond the 
control of the employee and the required payments were deposited at the 
first opportunity.


Sec.  352.310  [Removed]

0
8. Remove and reserve Sec.  352.310.
0
9. Revise Sec.  352.311 through Sec.  352.314 to read as follows:


Sec.  352.311  Reemployment.

    (a) An employee who transferred to an international organization 
with the consent of the employing agency is entitled to be reemployed 
in his or her former position, or one of like seniority, status, and 
pay, within 30 days of applying for reemployment if the employee:
    (1) Is separated, either voluntarily or involuntarily, without 
cause, within the term of employment with an international 
organization; and
    (2) Applies for reemployment with the employing agency or its 
successor no later than 90 days after separation from the international 
organization.
    (b) Pay upon reemployment will be set at that to which the employee 
would have been entitled had the employee remained with the employing 
agency.
    (c) When an employee's reemployment right is to a position in the 
SES, reemployment may be to any position in the SES for which the 
employee is qualified. The employee must be returned at not less than 
the SES rate of basic pay as determined under 5 CFR part 534, subpart 
D, at which the employee was being paid immediately before transfer to 
the international organization, or if pay has been adjusted under Sec.  
352.314(c), at not less than the adjusted pay level.
    (d) The period of separation caused by the employment of the 
employee with the international organization and the period necessary 
to effect reemployment are creditable service for all appropriate civil 
service employment purposes (e.g., tenure, service computation date, 
retirement, time in grade). Employees, upon return, are also entitled 
to restoration of any sick leave.
    (e) An employee who elected to retain Federal retirement coverage 
while employed by the international organization and has made all 
deposits required for such coverage may make contributions to the TSP 
which he or she missed as a result of the service with the 
international organization, and receive make-up agency contributions 
and lost earnings on the agency contributions, consistent with 
applicable TSP requirements.


Sec.  352.312  When to apply.

    An employee may apply for reemployment, in writing, either before 
or after separation from the international organization. If the 
employee applies before separation, the 30-day period prescribed in 
Sec.  352.311 begins either with the date of the application or 30 days 
before the employee's date of separation from the international 
organization, whichever is later. If the employee applies for 
reemployment after separation, the application must be received by the 
employing agency no later than 90 days after separation from the 
international organization.


Sec.  352.313  Failure to reemploy and right of appeal.

    (a) When an agency fails to reemploy an employee within 30 days of 
receiving the employee's application, it must notify the employee, in 
writing, of the reasons and of the employee's right to appeal to the 
Merit Systems Protection Board under the provisions of the Board's 
regulations. The agency must comply with the provisions of Sec.  
1201.21 of this title.
    (b) If the agency fails to reach and issue a decision to the 
employee within 30 days from the date of the application for 
reemployment, the employee is entitled to appeal the agency's failure 
to issue a decision to the Merit Systems Protection Board under the 
provisions of the Board's regulations.
    (c) An employee may submit an appeal, alleging that the agency has 
failed to comply with any of the other provisions of sections 3343 and 
3581-3584 of title 5, United States Code, or of this part, to the Merit 
Systems Protection Board under the provisions of the Board's 
regulations.


Sec.  352.314  Consideration for promotion and pay increases.

    (a) The employing agency must consider an employee who is detailed 
or transferred to an international organization for all promotions for 
which the employee would be considered if not absent. A promotion based 
on this consideration is effective on the date it would have been 
effective if the employee were not absent.
    (b) When the position of an employee who is absent on detail or 
transfer to an international organization is upgraded during the 
employee's absence, the employing agency must place the employee in the 
upgraded position upon return.
    (c) The employing agency must consider an employee who is detailed 
or transferred to an international organization from an ungraded pay 
system for all pay increases for which the employee would have been 
considered if not absent. An increase is effective on the date it would 
have been effective if the employee were not absent.

[FR Doc. E8-26009 Filed 10-30-08; 8:45 am]
BILLING CODE 6325-39-P