[Federal Register Volume 85, Number 178 (Monday, September 14, 2020)]
[Proposed Rules]
[Pages 56536-56538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20038]


 ========================================================================
 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. 85, No. 178 / Monday, September 14, 2020 / 
Proposed Rules  

[[Page 56536]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 316

RIN 3206-AN92


Temporary and Term Employment

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing rules 
that would allow agencies to make term appointments in Science, 
Technology, Engineering, Mathematics (STEM) occupations; positions 
needed to stand-up, operate, and close-out time-limited organizations 
which have a specific statutory appropriation; and time-limited 
projects which have been funded through specific appropriation; for up 
to 10 years. OPM is proposing this rule to provide agencies with 
greater flexibility to staff foreseeably long-term projects of a STEM 
nature when the need for the work is not permanent, and other time-
limited work when authorized by specific funding by Congress. The 
intended effect of this change is to allow agencies the flexibility and 
discretion to hire individuals with knowledge, skills and abilities 
tailored to a specific project or Congressional funded work that may 
not be required on a permanent basis or transferable to other functions 
of the agency. This longer term appointment may also assist agencies in 
recruiting individuals with specialized STEM knowledge who prefer the 
opportunity to work on a project-by-project basis to build their 
resumes and maintain current skills.

DATES: OPM must receive comments on or before November 10, 2020.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Michelle Glynn at (202) 606-1571, by 
fax at (202) 606-3340, TDD at (202) 418-3134, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: OPM is proposing to amend its rules 
pertaining to term employment to allow agencies to make term 
appointments in certain STEM occupations; positions needed to stand-up, 
operate, and close-out time-limited organizations which have a specific 
statutory appropriation; and time-limited projects which have been 
funded through specific appropriation; for up to 10 years. To do this, 
OPM is amending its regulations at 5 CFR part 316, subpart C, by adding 
a new paragraph to Sec.  316.301 which authorizes agencies to hire 
individuals into STEM occupations and positions needed in support of 
other time-limited work when authorized by specific funding by 
Congress, for up to 10 years.
    Under current regulations at 5 CFR part 316, subpart C, agencies 
have the discretion to make term appointments for a period of more than 
1 year but not more than 4 years to any positions for which the need 
for an employee's services is not permanent. If an agency wishes to 
extend the term beyond four years or make an initial appointment of 
more than 4 years, it must obtain OPM's approval. 5 CFR 316.301. OPM 
recognizes, however, that the work performed by STEM positions, and 
positions needed in support of projects and organizations specifically 
funded by Congress, often lasts longer than 4 years. For example, it 
may be cyclical and often project based (e.g., developing a research 
concept, initial research to prove feasibility, and testing/evaluation) 
and must continue until the goal or purpose of the work has been 
accomplished. Such work may include, but is not limited to, the need to 
collect data or conduct research (including medical research) regarding 
a certain trend or phenomenon, sometimes over time; perform STEM 
analysis of this data or research; and prepare reports of findings and 
recommendations, based on the data and analysis; or develop and 
implement new Information Technology (IT) projects or programs. In some 
instances, the work performed by these individuals may be affected by 
environmental factors or other external circumstances beyond the 
agency's control, which may result in the need for a lengthier 
appointment.
    In addition, a study using Burning Glass \1\ data suggests that the 
pace of technological change is driving a STEM skills gap, with new 
technological advancements continually demanding new skills of STEM 
workers and making some existing skills obsolete. (Deming, David J.; 
Noray, Kadeem L, STEM Careers and the Changing Skill Requirements of 
Work. The National Bureau of Economic Research, Revised June 2019.) The 
authors state, ``Using a near-universe of online job vacancy data 
collected between 2007 and 2017 by the employment analytics firm 
Burning Glass Technologies (BG), we show that job skill requirements 
change significantly over the course of a decade. We use the BG data to 
calculate a systematic measure of job skill change, and show that skill 
demands in STEM occupations have changed especially quickly. The faster 
rate of change in STEM is driven both by more rapid obsolescence of old 
skills and by faster adoption of new skills.'' Moreover, there is a 13 
percent projected growth of STEM jobs in the United States between 2017 
and 2027. (Feiman, Joseph, Can STEM Qualifications Hold The Key To The 
Future Of Cybersecurity? (Forbes September 11, 2019), citing Economy 
Modeling Specialists International 2017, ecs.org/vital-signs-notes-and-sources/. Given this high demand, agencies will need the flexibility 
and agility to attract and retain talent, for a significant period of 
time, with up-to-date knowledge and training in the STEM fields for 
time-limited projects. This regulation will allow agencies to hire new 
STEM personnel and grant their own extension of the term appointments, 
if initially hired for less than 10 years, to allow agencies the 
ability to shape their

[[Page 56537]]

workforce with greater agility to meet current and emerging mission 
needs. Affording agencies the option to use longer term appointments in 
lieu of contracting will allow the agency to have STEM hires to be 
placed in managerial or supervisory positions throughout the life cycle 
of a time-limited project. In addition, this regulation may help 
agencies better compete for STEM talent because Federal term employment 
will offer individuals more job security and benefits (e.g., health 
insurance, life insurance and participation in the Thrift Savings Plan 
(TSP) than would contract work to individuals interested in working on 
special projects in order to keep abreast of new technology and enhance 
their skills.
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    \1\ Employment analytics firm Burning Glass Technologies (BGT).
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    OPM is proposing use of this authority for any STEM occupation, 
regardless of occupational group. This includes a variety of 
professional and technical positions in numerous occupational groups 
(e.g., Natural Resources Management and Biological Sciences; medical, 
hospital, dental, and public health, and information technology).
    In addition, OPM is proposing to extend this flexibility to cover 
positions needed in support of time-limited organizations or projects 
which have been specifically funded by Congress (i.e., the organization 
or project has been funded outside of, or in addition to, an agency's 
usual appropriation). Work of this nature oftentimes requires positions 
to be filled initially for an unknown period of time. This uncertainty 
may result in recruitment and retention challenges when agencies are 
endeavoring to implement and support expressed Congressional interest 
these organizations or projects.
    Under current OPM regulation, the duration of a term appointment is 
limited to four years and agencies may not extend a term appointment 
beyond four years without OPM approval. OPM is proposing that an agency 
may appoint individuals in STEM positions, positions needed in support 
of projects and organizations specifically funded by Congress, for a 
term of more than 1 year up to a term of 10 years, and, if the initial 
appointment is less than 10 years, an agency may extend the appointment 
up to the 10-year limit in increments determined by the agency. The 
vacancy announcement used to fill these position must state that the 
agency has the option of extending the term appointment up to the 10-
year limit. No appointment made under this section may last longer than 
10 years from the date of the initial appointment. When using this 
authority, an agency must follow the procedures and requirements of 5 
CFR part 316, subpart C, for purposes of selection, tenure, and trial 
periods.
    OPM's current regulations provide that OPM may approve the 
extension of 4-year appointment if the extension is ``clearly 
justified'' and is consistent with applicable statutory provisions. 5 
CFR 316.301(b). OPM believes that agencies that perform time-limited 
projects that require the specialized STEM skills, or which are in 
support of organizations or projects specifically funded by Congress, 
are in the best position to assess how long the project should 
continue, and should have the ability to act quickly when, in the 
agency's judgment, additional time is necessary. OPM believes this 
flexibility promotes retention and continuity, workforce planning, and 
minimizes disruptions during project work because term employees may be 
less likely to leave if they know their employment for the anticipated 
life of the project is secure rather than face an uncertain future 
awaiting a process under which their agency requests and must receive 
OPM extension approval for continuing work on the same project. 
Accordingly, OPM is not requiring agencies to obtain OPM approval to 
take advantage of the full 10-year term appointment under the proposed 
rule. However, agencies will be subject to OPM oversight regarding 
whether they are using this appointment appropriately. OPM does not 
intend this rule to be a substitute for a permanent workforce or for 
appointing employees to permanent positions for work of a permanent 
nature. OPM intends this rule to be used only for STEM work that is 
genuinely time-limited in nature; or for positions needed to stand-up, 
operate, and close-out time-limited organizations which have a specific 
statutory appropriation; and time-limited projects which have been 
funded through specific appropriation.
    Lastly, OPM is proposing to modify Sec.  316.302(b)(7) to allow an 
agency to reappoint an individual who previously served on a 10-year 
term appointment to a position in the same agency appropriate for 
filling up to the 10-year maximum limit. Combined service under the 
previous term appointment(s) cannot exceed 10 years. We are also 
proposing to modify this section to include reappointments made 
pursuant to Sec.  316.301(b), so as attune reappointments to such 
positions with those for 4-year term appointments made pursuant to 
Sec.  316.301(a), and those made under proposed Sec.  316.301(c). This 
proposed modification parallels current regulatory language for 
individuals serving on 4-year term appointments made under Sec.  
316.301(a).
    OPM invites comments on all aspects of the proposed regulation. OPM 
is particularly interested in testing its conclusions regarding the 
anticipated benefits of this regulation, additional examples of 
relevant agency experience, information regarding any potential 
benefits of this rule or possible drawbacks, and suggestions for 
possible improvements.

Regulatory Flexibility Act

    We certify that this regulation will not have a significant impact 
on a substantial number of small entities because it applies only to 
Federal agencies and employees.

E.O. 13563 and E.O. 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' under Executive Order 12866.

Executive Order 13771: Reducing Regulation and Controlling Regulatory 
Costs

    The Executive Order 13771 designation for any final rule resulting 
from these proposed regulations will be informed by comments received. 
The preliminary Executive Order 13771 designation for this proposed 
rule is deregulatory.
    This regulation provides substantial flexibility to agencies, and 
therefore generates cost savings for these agencies. As a result, we 
consider this rule to be a deregulatory action under Executive Order 
13771.

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications

[[Page 56538]]

to warrant preparation of a Federalism Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, or 
tribal governments of more than $100 million annually. Thus, no written 
assessment of unfunded mandates is required.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 316

    Employment, Government employees.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, we propose to amend 5 CFR part 316 as follows:

PART 316--TEMPORARY AND TERM EMPLOYMENT

0
1. Revise the authority citation for part 316 to read as follows:

    Authority:  5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218; 5 CFR 2.2(c).

Subpart C--Term Employment

0
2. Amend Sec.  316.301 by adding paragraph (c) to read as follows:


Sec.  316.301  Purpose and duration.

* * * * *
    (c) An agency may make a term appointment for a period of more than 
1 year but not more than 10 years to any science, technology, 
engineering, mathematics (STEM) position when the need for an 
employee's services is not permanent; or for positions needed to stand-
up, operate, and close-out time-limited organizations which have a 
specific statutory appropriation; or time-limited projects which have 
been funded through specific congressional appropriation. An agency may 
extend an appointment made for more than 1 year but fewer than 10 years 
up to the 10-year limit in increments determined by the agency. The 
vacancy announcement must state that the agency has the option of 
extending a term appointment under this section up to the 10-year 
limit. No appointment made under this section may last longer than 10 
years from the date of the initial appointment.
0
3. Amend Sec.  316.302 by revising paragraph (b)(7) to read as follows:


Sec.  316.302  Selection of term employees.

* * * * *
    (b) * * *
    (7) Reappointment on the basis of having left a term appointment 
prior to serving the 4-year maximum amount of time allowed under the 
appointment per Sec.  316.301(a), the maximum time allowed for an 
appointment authorized under this paragraph (b), or the 10-year maximum 
amount of time allowed under Sec.  316.301(c). Reappointment must be to 
a position in the same agency for filling under the original term 
appointment and for which the individual qualifies. Combined service 
under the original term appointment and reappointment must not exceed 
the 4-year limit for positions pursuant to Sec.  316.301(a), the 
maximum time allowed for an appointment authorized under Sec.  
316.301(b), or the 10-year limit under Sec.  316.301(c), as 
appropriate; or
* * * * *
[FR Doc. 2020-20038 Filed 9-11-20; 8:45 am]
BILLING CODE 6325-39-P